Triple Talaq decision – has the apex court given us a reason to celebrate?

This article was writtem in August 2017. I have now decided to put all my write ups which were not accepted for publication over here on my blog. This is dated but relevant. The decision of the Supreme Court of India was awaited with bated breath by both Muslim women rights groups and the Muslim clergy. This decision was also being looked forward to though with a lot of skepticism I must say by all those who would like to see the men and women of this country, irrespective of their class, caste and religion, being able to enjoy fundamental rights guaranteed by the constitution of India without any discrimination and encumbrance. The minority judgement given by the chief justice had to resort to its powers under Article 142 of the constitution of India to deal with the inequality imposed upon Muslim women due to admittedly arbitrary and discriminatory practice of “triple talaq”. They chose to beseech the government of India to bring in a necessary legislation to deal with the injustice and inequality perpetrated by this practice. It is extremely unfortunate that in a democratic country like India where the constitution guarantees fundamental rights to all its citizens and some fundamental rights are guaranteed to all people residing in this country irrespective of whether they are citizens or not and where Supreme Court is the guardian of those rights, it chose to pass the buck. The minority judgement sought to create a six month window within which the government would have to bring in the necessary legislation to either do away completely the practice of triple talaq or amend it in a way that it ceases to be arbitrary and discriminatory. The learned judges have stated we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship....till such time. However, if the government does not take any action in the next six months then the injunction would cease to operate and they thought they did justice to these women. Despite accepting and acknowledging that the practice is an antithesis to the right to equality of Muslim women it chose to turn them away with a sop of injunction. The learned judges, whether the ones who gave the minority judgement or the ones on the side of the majority judgement, have chosen not to deal with the issue head on. Justice Kurian Joseph delivering the majority judgement has said, “What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case....”.He further stated, “therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.” I wonder what would have happened if this was not the case. Does this mean that the women of this country, whichever religion they belong to, have to put up with whatever their religion dictates and if that is considered an “essential religious practice” then fundamental rights can be damned ? Are we saying that there is a hierarchy with-in the fundamental rights and one right can overpower and transgress the other fundamental right? In this case, it seems that the right to religion supersedes Article 14 and Article 21, which have been slaughtered at the altar as far as women are concerned. For ease of discussion and understanding, Article 25 of the constitution of India is being reproduced: Freedom of conscience and free profession, practice and propagation of religion 1. Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion 2. Nothing in this article shall affect the operation of any existing law or prevent the State from making any law a. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; b. providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly Careful reading of the first clause of this Article makes it abundantly clear that the right guaranteed under this article is not an absolute one as is the case with other fundamental rights. This right is made categorically subject to the other provisions of this Part among other riders. This should leave no doubt in anyone’s mind that the fundamental right to religion is subject to other fundamental rights and have to pass through the litmus test of Article 14, right to equality and equal protection of law and Article 21, right to life and personal liberty, of both men and women, as these rights have been conferred upon both, in equal measure. We would have had a real cause of celebration if this practice had been struck down on the ground of being violative of the fundamental rights of Muslim women conferred by Article 14 and Article 21 rather than being against sharia or using legal semantics. This is a well- intentioned and laudable effort to grant relief but is a circuitous route and falls woefully short of what is expected of a Supreme Court which is the protector of fundamental rights guaranteed by the constitution to all. Justice Joseph Kurien has stated that a reconciliation between religion and constitutional rights is possible, but the process of harmonizing different interests is within the powers of the legislature, thereby completely abdicating the constitutional duty and responsibility of the apex court to protect the fundamental rights of all people and apply the same principles of harmonious construction while interpreting fundamental rights to resolve apparent conflict between the mandate of different fundamental rights. My only submission is that the time has come when the fundamental rights of women of this country are also guaranteed and protected with the same fervour and sincerity as that of the men of this country. The courts and the government should not hide behind the personal law; all those personal laws which conflict with the fundamental rights have to go. The moot question is whether one fundamental right can transgress another fundamental right. Even if for a moment we assume that triple talaq is a practice that would get protection under freedom granted by Article 25, it is widely acknowledged of being violative of Article 14 and 21 of Muslim women. If one fundamental right can tear in to the freedom granted by other fundamental right, then we are reducing theses in-to empty rhetoric. Plain reading of Article 25 makes it amply clear that if its mandate is interpreted in the true spirit of the constitution, learned judges of the SC would not have had any issue striking down not only triple talaq but several other discriminatory practices carried out in the name of religion across all religions. I also would like people to ponder whether these fundamental rights are only granted to men and not to women in the same measure. If yes, then right to freedom of religion can mean different things for men and women, as the current religious practices are not just and equitable and very evidently seems to have been made by men for men.