‘National Seminar on Role of Law in Republic India’
THEME – TRIPLE TALAQ VIS -A -VIS RIGHT TO RELIGION
TOPIC – TRIPLE TALAQ VIS-A-VIS RIGHT TO RELIGION: AN ANALYTICAL STUDY
NAME- RUCHI PATERIA
CONTACT NUMBER- 07905439508
AFFILIATION OF AUTHOR ‘ BUNDELKHAND UNIVERSITY, JHANSI (RESEARCH SCHOLAR)
EMAIL ID- nliuruchi@gmail.com
TRIPLE TALAQ VIS -A -VIS RIGHT TO RELIGION: AN ANALYTICAL STUDY
In India the buzz has roared for ‘Triple talaq’. Every newspaper, news channel of the country discussed rising radicalism and limitations on liberal space and the reason for debate, the judgment of Shayara Bano v. Union of India , in which Supreme Court has declared the practice of Triple Talaq as unconstitutional by 3:2 majority. The judgment has been delivered by the Constitutional bench of 5 Judges in which Justices Kurian Joseph,UU Lalit and RF Nariman delivered the majority Judgment where as Chief Justice Khehar and Justice Abdul Nazeer dissented and gave the minority Judgment which has raised many issues for discussion as to the scope of Freedom of Religion guaranteed under the Constitution of India, whether the declaration of Triple talaq as invalid or Unconstitutional is against the Freedom of Religion, Secularism or the declaration is a progressive step as Triple talaq is against Articles 14,15 and 21 being fundamental rights guaranteed under the Constitution of India. Another question arises as to being into practice from a long time does invalidating the practice of Triple talaq is proper from the perspective of Article 13 of Constitution of India or what is bad in theology is bad in law is rightly made applicable in this decision or whether this is one of the first step towards the Uniform Civil Code which does not mean majoritaian law but means the best law from all the Religions which is for the welfare of our society.
The striking down of the practice of Triple talaq raises the first and foremost question as to whether the judgment is against the spirit of Secularism and violating the right to freedom of religion. The key tenet of Secularism in India is ‘Sarva Dharma Sam bhava’, which means all religions are equal. One of the rights guaranteed by the Indian Constitution is the right to Freedom of Religion. Article 25 of Constitution of India guarantees right to freedom of religion which means every individual is free to follow any religion and practices associated with it According the right of freedom of Religion an individual can follow any religion and can practice ,profess and propagate its religion . The Constitution of India expressly deals with the right to freedom of religion under Articles 25, 26, 27 and 28,In S.R. Bommai vs Union of India the Supreme Court of India held in the context of Secularism "A state which does not recognize any religion as the state religion, it treats all religions equally.’
With the Forty-Second Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a ‘Secular’ nation. In 1946 there was a debate in Constituent assembly at the time of framing of Constitution where K.T. Shah wished-for an amendment where he was in favor of addition of word Secular, howsoever Dr. B.R. Ambedkar discarded the view, reason being that according to him the spirit of word ‘Secular’ is enshrined in the entire Constitution i.e. non-discrimination on grounds of religion and equal rights and status to all citizens. Through 42nd Amendment Preamble got amended and changed the description of India from "Sovereign Democratic Republic" to a "Sovereign, Socialist Secular Democratic Republic’ the addition of the word Secular was just the reassurance of we being a secular nations. Secularism begins in the heart of every individual. There should be no feeling of "otherness" as we all have is a shared history. The problem lies in the fact that the Constitution of India added the word Secular but it did not define it anywhere in the Constitution of India, as a consequence prior to the addition of word secularism also the spirit of Secularism, the feeling of brotherhood existed by virtue of various Articles of Constitution of India but the addition led to the confusion and different interpretations ,howsoever the right to religion is not absolute and limitations are enshrined in the Articles itself. Secularism is equal respect to all religions and not the protection to derogatory and discriminatory practices of any religion and therefore the practice of Triple talaq cannot be protected under the ambit of Secularism. No discriminatory practice can be justified in the name of Secularism and right to freedom of religion. Religious Sensitiveness has made a deep impact on the life of everyone in India. India is largest and the liberal democracy. Article 25-28 of the Constitution of India provides ‘Freedom of Religion.’The makers have restricted these provisions with certain provisions in order to check the misuse as the Constitution is a social document which can change with the changing scenario.
AN OVER VIEW OF MODES OF TALAQ IN MUSLIMS AND THE HOLY QURAN –
Among Muslims three modes of talaqs are being practiced. Among them the first one is Talaq which is at the instance of husband ,Kula is at the instance of wife and the third one is Mubarat which is by mutual consent. Talaq is also sub classified into three ‘ ‘talaq-e-ahsan’, ‘talaq-e-hasan’ and ‘talaq-e-biddat’. Talaq-e-ahsan’, ‘talaq e-hasan’ approved by Quran and Hadith and out of them Talaq-e-hasan’ considered as the most appropriate and reasonable form of divorce, whereas Talaq-e-biddat is neither recognized by Quran nor by the Hadith and effective by pronouncing thrice Talaq,talaq and talaq. It is irrevocable at the very moment it is pronounced and has no mention in Quran.The practice can be traced to the second century, after the initiation of Islam. It is recognized only by a few Sunni schools and most prominently by the Hanafi sect of Sunni Muslims but they also recognize it as sinful form of divorce but justify it on the basis that though bad in theology, it is good in law. . As ‘Talaq-e-biddat’, is not in conformity with Quran therefore, it cannot be considered as valid constituents of Muslim ‘personal law. ‘It gained the validity from the British courts in authoritative pronouncements in Rashid Ahmad case. Various High Courts are also of the view that divorce from one is side is not complying with the Islamic traditions as talaq can be initiated when there is a reasonable cause and there is an attempt for the reconciliation among the parties by the two arbitrators. In Shamim Ara v. State of U.P , Court upheld the above position. The above points gains the validity from the Quranic position as recorded in verses 128 to 130 of ‘sura’ IV and verses 229-232 of ‘sura’ II, and also, ‘verse’ 35 of ‘sura’ IV. The personal law to Muslim religion is regulated by the custom or usage along with the Muslim personal law shariat. The status of women is considered oppressive in Muslim law. Triple talaq seems unjustified to Muslim women as it is at the instance of men and if in case a Muslim women want to return back to her husband she has to marry and consummate the marriage with someone else which seems to be very inhumane. But despite the various judgments by High Courts on this point the Triple Talaq is in practice and Muslim males are practicing it, hence the requirement is for an authoritative judgment from the highest court of India.So it is clear that Quran prescribes a procedure and conditions for talaq in which the foremost need is for the reasonable cause and other is for the conciliation by the appointment of arbitrators as Quran doesn’t recognizes instant Talaq and the reason for appointment of arbitrators is to give time and patience as to solve the issues and not to break the matrimonial home. This is a step taken by highest courts to deal with the arbitrary action of religious heads and this duty has determinedly discharged by our High Courts and the Privy Council before our Constitution. No greater service can be done to our country than by the Supreme Court and the High Court’s discharging that duty resolutely, disregarding popular clamour and disregarding personal predilections.
REASONS FOR THE DECISION-
India is a pluralistic society which recognizes the Freedom of Religion but the laws of each religious community must meet the Constitutional Validity and should be in accordance with the limitations enshrined in the Constitution of India. The rights vested in one party alone to unilaterally give ‘talaq’ were against the public policy and hence required to be declared unconstitutional.
THE PRACTICE OF TALAQ ‘E-BIDDAT
The talaq is in practice from last 1400 years since from the time of Caliph Umar ‘ a senior companion of Prophet Muhammad, it was a widespread practice all over the world otherwise legislation would not have come in different countries. The Supreme Court has cited the laws of as many as 19 countries including Egypt, Pakistan, Turkey and other nation-states from the Arab peninsula, South-East Asia, and South Asia that have abolished triple talaq. In India the 90 percent Sunni belong to hanafi school in which the practice of triple talaq is very much in practice, the practice of ‘talaq-e-biddat’ is considered integral to the religious denomination in question. Sunnis belonging to the Hanafi School.The practice of ‘talaq-e-biddat’ had the sanction and approval of the religious denomination which practiced it and there is no doubt that the practice is a part of their ‘personal law’ .
Article 25 of the Constitution of India protects the Personal laws. Muslim Personal Law(Shariat) Application Act, 1937 after the enactment has gained the status of the statute and therefore as per Article 372 the laws in force before the enactment of Constitution will remain in force and has to be in comply with the fundamental rights in part III and as per Article 13(1) which provides that laws in force immediately before the commencement of the Constitution, if they are inconsistent with the provisions of Part III of the Constitution, shall to the extent of such inconsistency, be considered as void.
CONSTITUTIONAL MORALITY AND TALAQ E BIDDAT ‘
Talaq ‘e-biddat is against the constitutional morality and raises the question that can a women be discriminated in the secular nation on the basis of religious customs ,traditions and practices .The position of Muslim women is vulnerable then the women of any other community as here the right to divorce is only a one sided affair. Gender equality, equity and justice, are values essentially entangled in the guarantee assured to all (citizens, and foreigners) under Article 14 and hence talaq ‘e biddat seems to be against the Article 14 as Article 14 is not specific as to any particular religion women but it is a generalized notion and applicable to women of all religions so any kind of discrimination to women of any community means violating the Constitutional goals.
The Supreme Court of India has referred the case of Sardar Syedna Taher Saifuddin Saheb case 28, wherein, this Court held as under:
‘Articles 25 and 26 protection under Constitution of India is not limited to matters of doctrine or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of areligion or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion ‘.
Apart from Article 14, Article 15 which prohibits the discrimination on the ground of Sex is violated. Gender Justice was one of the constitutional goals of framers of Constitution which can be traced from Article 15 along with it the social esteem, human dignity and self worth are the vital factors which are flowing from the Article 21 right to life of the Constitution of India.
Article 51A (e) of the Constitution of India is one of the declared fundamental Duties contained in Part IV which expressly states to renounce practices derogatory to dignity of .Women constitute almost half of population of our country and any such practice which is discriminatory to any specific religious sect women will constitute the gender discrimination. Triple talaq is against the Constitutional principles as it is violating the principle of equality which is enshrined in Article 14, discriminating on the basis of sex and taking away the dignity of women to live their life because it is not just life but life to live with dignity ,self esteem which is important .
Dr Ambedkar in his closing speech on the draft Constitution stated on 25-11-1949 that –
‘What we must do is not to be attained with mere political democracy; we must make our political democracy a social democracy as well. Political democracy cannot last unless there lies on the base of it a social democracy’. Social democracy means ‘a way of life which recognizes liberty, equality and fraternity as principles of life’.
Article 15(4) and 16(4) were also added as subspecies to Article 14 with a vision to attain the goals of equality, to remove social and economic inequality and to make equal opportunities available in reality. Equality is useless without the liberty. The Constitution seeks to establish a secular socialist democratic republic in which every citizen has equality of status and of opportunity, to promote among the dignity of the individual, unity and integrity of the nation transcending them from caste, sectional, religious barriers nurturing fraternity among them.
AN OVERVIEW OF JUDGEMENT ‘
The minority opinion was delivered by outgoing Chief Justice of India (CJI) JS Khehar and Justice S Abdul Nazeer who didn’t declared the practice of triple talaq as unconstitutional because they were of the view that triple talaq doesn’t derive its validity from the Muslim Personal Law (Shariat) Application Act, 1937 and it’s a religious custom which is protected under the right to freedom of religion. They suggested that Government should come out with law because ultimately it is the duty of legislature to make a law and judiciary to interpret the law. In this case Government holded the position of respondent rather than petitioner which is a very rare situation as whenever the legislation is challenged government usually act in the capacity of respondent. CJI directed the legislature to come out with the law seen as Judicial activism and suspended the practice of triple talaq for six months.
Justice Kurain mainly relied upon the question that whether triple talaq has any legal sanctity. He relied upon Shamim Ara v. State of UP and Another has held that triple talaq lacks legal sanctity.Therefore, in terms of Article 141, Shamim Ara is the law that is applicable in India.Justice Kurain quoted the restrictions enshrined in Article 25 from where it is very clear that state can make any law for the social welfare of people.
Justice Kurein is of the view that just because the practice is in use from a long time does not mean it is an integral part of that religion in fact it is against the Shariat act 1937 that there cant be any practice against the quran and hence according to Justice Kurain Triple talaq has to be declared unconstitutional which up to an extent seems to be correct but Justice Kurain also went upto analyzing the validity of practices with respect to the Quranic law which seems to be an untraditional practice as Supreme Court of India looks at the validity of practices with respect to the Constitution. He stated what is bad in theology is bad in law. The researcher is also holding the view if anything is regressive ,discriminatory, affecting the freedom or liberty then it can’t hold good in law and should be struck down for the progress of the society.
Justice Nariman gave the most progressive opinion and put the emphasis on the Gender Justice and said practice of Triple talaq taking away the fundamental right i.e Article 14, 15(1) and 21 granted to the women. The issue that the triple talaq cannot be struck down for social reform and welfare under Article 25 and secondly the matter concerned is whether triple talaq gets the validity from Article 2 of Shariat act and can be decided by the Supreme Court of India in its power so the answer lies in the provision of Constitution itself because as per Article 25(2) there can be change in law for the social reform and to remove the discriminatory practices. The Shariat Law, 1937 law came into force before the Constitution of India so it comes into the category of law in force in Article 13(1) and hence the law inconsistent with part III can be held unconstitutional. The test of Arbitrariness applied ,what is arbitrary cannot be justified on the basis that is in long practice and hence valid so according to him the practice of triple talaq is arbitrary and hence violative of Article 14of the Constitution of India. The scope of religion is discussed in ‘Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt’ where it has been held that religion has the widest possible explanation. Atheism would also form part of ‘religion’. The essential religious practices are protected under Article 25 of Constitution of India and what constitutes essential religious practice has to be decided by the court.
Howsoever the bill know as The Muslim Women (Protection of Rights on Marriage) Bill 2017 is seems to have some conflicting points as on the one side it is providing punishment to husband for divorcing a women and on the other side it is proving for maintenance but the two situations are conflicting as how can the imprisoned men provide the maintenance. So there is a need to resolve the issue but apart from that the Judgment is a progressive step.
CONCLUSION ‘
The judgment is basically protecting the rights of women which are granted to women by the Constitution of India as Fundamental rights ,a step towards recognizing the rights of women as human rights granted under the International conventions. So basically it’s a step towards achieving the constitutional goals. It is going to be helpful for the illiterate women who are totally dependent on Muslim men as the practice of triple talaq used to be one sided affair and left women alone. It is a good step towards achieving the goal of uniform Civil Code and for any progressive society it is a positive step. The only disadvantage which can be seen is that it’s a speedy process of divorce without wasting time in Court procedures which actually in a way benefits the Court as it reduce the burden on Judiciary and reduce the pendency of cases but then again it is one sided affair so discrimination cannot be tolerated to avoid long procedures in court.It is a step for the upliftment of the women community and to boost confidence in them and assure them that Constitution is the supreme law of the land and doesn’t matter to which community women belong what is important is protection of their rights and providing them equal status and opportunity which is the dream of the framers of our Constitution . So it’s a
positive step to achieve the Constitutional goals.