On the fifth and penultimate day of argument in the Triple Talaq case, the five-judge constitutional bench finished hearing parties supporting the constitutional validity of triple talaqand began hearing rejoinders by the Union of India and other intervenors.
On Day 4 Mr. Sibal concluded by asserting that irrespective of historical origins, triple talaq was now a core belief of the Hanafi school of Islam. On Day 5 he began by rebutting the Union’s submission that triple talaq discriminated between Muslim women and Hindu women. He relied on Daniel Latifi to show that the Supreme Court has acknowledged that that personal laws are a legitimate basis of distinction between persons and such a distinction does not violate the equality guarantee under Article 14 of the Constitution.
Then, the Chief Justice of India posed two questions to Mr. Sibal: first, whether women may be given the option to exclude triple talaq from the nikah nama; and second, whether the AIMPLB could ask all Qazis to inform women that they have the option to exclude triple talaq through the nikah nama. Justice Kurien Joseph further queried if AIMPLB resolutions are binding on the Qazis. Mr. Sibal responded that women have the option to exclude triple talaq from the nikah nama but AIMPLB resolutions are only advisory and non binding.
He concluded arguments by emphasizing that the Hanafi school is a religious denomination and relied on S.P. Mittal to affirm that every denominations’ right to practice religion is protected under Article 26 of the Constitution.
Mr. Ramachandran, Sr. Adv, agreed with AIMPLB submissions and emphasized that Muslim women have the option to opt out of triple talaq by having their marriage registered under the Special Marriage Act 1954. Further, he pointed out that India has made reservations to the Convention on the Elimination of all forms of Discrimination Against Women (CEDAW) with respect to personal laws (Articles 5, 6 and 16) and hence, it is inconsistent for the Union to retain this reservation and petition this Court to strike down triple talaq.
Mr. Giri, Sr. Adv also made a brief submission on behalf of Jamat-Ul-i-Hind. He argued that Muslim Personal law is not codified by the Shariat Act 1937 and that the statute only seeks to abrogate customs contrary to personal laws. He argued that the Act did not codify or substitute Muslim personal law or provide a different set of rights and obligations. He also cited verses from the Quran to argue that marriage and divorce have sources in religious scriptures and thus are essential matters of religion protected under Articles 25 and 26 of the Constitution.
Mr. Goel argued that the question of assessing the constitutional validity of triple talaq does not arise as the divorce is between two private individuals and there is no state action involved. Justice Nariman countered that the State is involved as the Shariat Act 1937 mandated the court to apply the Muslim personal law.
Ms Agnes argued that the crux of the matter was that triple talaq jeopardized the economic rights of Muslim women and urged the Court to shift focus from religious to economic rights of women. She pointed out that in most cases of triple talaq, women went to court seeking maintenance. However, she argued against mandating judicial scrutiny over Muslim divorce as women will be caught for years in expensive and exploitative litigation.
The AGI, Mr. Rohatgi began by suggesting that the case was about the rights of Muslim women who form a minority within the Muslim community and not through majority-minority religious prism. Mr. Rohatgi negated Mr. Sibal’s suggestion of inserting a clause in the nikah nama to exclude divorce by triple talaq by asserting that Muslim women lack bargaining power or agency as many are uneducated and dependent upon men.
Then, Mr. Rohatgi responded to Mr. Sibal’s claim of triple talaq being an essential practice followed for over 1400 years in two ways: first, that AIMPLB had admitted that the practice is sinful and undesirable; second. that AIMPLB recommended exclusion of triple talaq in the nikah nama. Hence he concluded that triple talaq was not an essential practice and the Supreme Court has held that an optional practice cannot be integral to a religion in Anand Margi and Mirazpur Moti Kureshi.
Ms. Indira Jaising, Sr. Adv., representing the intervenors submitted that if the Court holds that uncodified personal laws cannot be challenged on the anvil of fundamental rights – that will have adverse consequences on women from all communities.
Justice Nariman responded that the issue does not arise as the Shariat Act 1937 codifies the law.
She continued that as there is no definition of personal laws in the Constitution, except a reference in Entry 5, List III. This entry makes it clear that ‘personal law’ is the law dealing with family and succession etc. and not laws dealing with religion as such.
Then she countered the argument that India had made reservations to CEDAW to protect religious personal laws by stating that there was no reservation to Article 2 of CEDAW which talks about non-discrimination on the ground of sex.
She concluded by reaffirming that no law has supremacy over the Constitution – not even personal laws, whether codified or un-codified. All personal laws are capable of being challenged for violations of fundamental rights. She concluded argument for Day 5 by turning to the South African Constitutional Court which struck down discriminatory customs that violated the Right to Equality under their Constitution.
(This post relies on contributions from Meher Dev)