Indicating that a Constitution Bench may hear the question whether triple talaq and polygamy violates the fundamental rights of Muslim women, the Supreme Court on Thursday said it has to examine if these personal law practices are the “fundamental traits” of the minority religion.
The Centre sought the Supreme Court to re-open the age-old debate on whether personal laws can be brought under the ambit of Article 13 (laws inconsistent with or in derogation of the fundamental rights) of the Indian Constitution.
The All India Muslim Personal Law Board has argued that the Supreme Court has no jurisdiction to strike down any provisions of personal law, organisations and Muslim women from various walks of life across the country urged the court to strike down triple talaq and polygamy as “un-Islamic”.
A three-judge Bench led by Chief Justice of India J.S. Khehar is hearing a batch of petitions, including a suo motu PIL instituted by the Supreme Court itself, on whether personal law practices like triple talaq (talaq-e-bidat), niqah halala and polygamy violate the fundamental rights of Muslim women.
This is the first time that aggrieved persons – individual Muslim women – themselves have approached the Supreme Court in person to settle the law on whether religious law is immune from constitutional standards enshrined in the fundamental rights.
“The issue is sensitive and everything has to be debated. There are so many nuances in this issue and nothing can be scuttled,” Chief Justice Khehar observed.
In this context, the Centre’s question as to “whether personal law is ‘law’ under Article 13 of the Constitution?” is significant. Article 13, for one, is so inclusive in its ambit that the term ‘law’ in the constitutional provision includes anything from an “ordinance, order, by-law, rule, regulation, notification and even customs and usages” passed or made by the Legislature or any other “competent authority”.
The Article mandates that any law in force in India before or after the commencement of the Constitution should not violate the fundamental rights of citizens enshrined in Part III of the Constitution.
A judicial declaration from a Constitution Bench under Article 13 that personal laws are liable to comply with the fundamental rights guaranteed under the Constitution would bring religious law, even uncodified practices, under judicial review.
If the Supreme Court agrees that personal laws are included in the definition of laws under Article 13, the door will be opened wide for an aggrieved person to challenge in court a particular personal law of a religion as violative of the fundamental rights. In case the challenge succeeds in court, the personal law, to the extent of its inconsistency, shall become void.
The courts have in past made discordant notes about the immunity enjoyed by personal laws.
The Bombay High Court in State of Bombay versus Narasu Appa Mali had held that personal law is not ‘law’ under Article 13. The court had observed that reformation of personal laws is best left to the legislature as “chosen representatives of the people” and not the judiciary. It said the phrase ‘customs and usages’ in Article 13 does not include personal laws of various religions. It held that Article 44 (Uniform Civil Code) acquiesced the existence of varied personal laws. This 1951 judgment was never challenged in the Supreme Court.
In Ahmedabad Women Action Group versus Union of India, the Supreme Court was asked to consider whether unilateral divorce by talaq and polygamy were violative of Articles 14 and 15. The court rejected the claim, saying it was for the legislature to determine.
However, in December 2016, the Allahabad High Court had observed in a case that triple talaq was “cruel” and judicial conscience was “disturbed”.
The Centre has also asked the Supreme Court to determine whether the triple talaq, nikah halala and polygamy are protected under the freedom of religion under Article 25, and whether this Article is subject to fundamental rights, especially the right to life and freedom of speech and expression.
Chief Justice Khehar’s Bench has scheduled the next hearing on March 30, on which the court may refer the case to a Constitution Bench.