On Monday, the Union government requested the Supreme Court to declare the instant triple talaq unconstitutiol regardless of whether the Koran sanctions it, and offered to ect a new law to govern marriages and divorces among Muslims. Attorney-general Mukul Rohatgi told the court that it was not an “ecclesiastical court” but a constitutiol one that ought to decide on principles of law, morality and public order. “Matters of persol law have no relation with religion ... This court is not expected to interpret the Koran,” he told the five-judge Constitution bench of Chief Justice J.S. Khehar and Justices Kurian Joseph, R.F. riman, U.U. Lalit and Abdul zeer. “(This) court is not the master of the interpretation of the Koran, Guru Granth Sahib or the Gita.” When the bench wanted to know how Muslim man would seek divorce if the triple talaq was outlawed, Rohatgi said, “The Centre will bring out a law... (that) will govern marriages and divorce among the community (members).” He added: “It is not that people will be left to die.” Justice Joseph retorted immediately by saying that the ectment of the new law could be done even now and reiterated a point that the bench had made last week when it asked whether the courts should intervene in a matter that Parliament appeared reluctant to touch.
Apart from the ecclesiastical and academic issues involved with the question of triple talaq, there is the question of why such an important matter concerning the mode of divorce for Muslims should have been kept on the backburner for so many decades since Independence. There could be several reasons for this, but the one that sticks out most prominently is that in India there is this tendency to avoid taking any constitutiol decisions on matters that are even remotely linked to religion. The typical official attitude in such matters seems to be that if such controversial issues were left unresolved, they had a way of resolving themselves. This is, of course, nothing more than wishful expectations being touted as nuggets of wisdom. The truth is that no such miracles happen, and the longer we postpone taking decisions on persol issues that are tied up with religion, the worse problems we create for ourselves. This is even truer of a country that has proclaimed itself to be a secular democratic republic. There is absolutely no excuse for pretending that the Constitution of the country is powerless to deal with the persol laws of people belonging to a certain faith if the same Constitution has been in a position to deal with the persol laws of people belonging to other faiths. But that apart, the situation is clearly quite simple. Any secular republic that has a constitution of its own and the laws of the land is in the enviable position of being able to tell all citizens who believe in the rule of law that it will abide by only one set of laws—the laws that the country has ected for all its people without regard to what their religions stipulate. Australia did this rather forcefully and politely about 10 years ago. The government told immigrants that the country had one set of laws for everyone, and those who did not like the laws of the country had the freedom to leave. And that was when people who believed that the Sharia could be enforced for one community realized that Australia was not prepared to have more than one set of laws. The triple talaq issue is very belatedly before the Supreme Court because a Constitution bench is now hearing petitions from individuals and organizations challenging the constitutiol validity of the instant triple talaq, with the Centre supporting them on the ground of Muslim women’s rights. However, the All India Muslim Persol Law Board has opposed any judicial interference in what it calls a religious matter, protected under Article 25, which grants freedom of religion. It will be recalled that last week, the All India Muslim Women Persol Law Board had argued that the instant talaq, far from being sanctioned by the Koran, actually violated the holy book’s teachings of compassion. Rohatgi pointed out that instant talaq was unconstitutiol under Article 13 (laws, customs, practices in derogation of fundamental rights), Article 14 (equality), Article 15 (prohibition against discrimition) and Article 21 (right to life and liberty). He argued that Article 25 (freedom of religion) was subservient to Part III of the Constitution that deals with fundamental rights. He also cited several Muslim countries where the instant talaq was not prevalent.
One cannot go on pretending that a secular country with clearly enunciated constitution and laws can permit people to argue that there can be no judicial interference in what it calls a religious matter. What are the law-enforcing authorities supposed to do when there is a clear case of discrimition in what the religious sanctions have prescribed? In the case of the triple talaq, there is clear discrimition between what is permissible for men and what is permissible for women. The instant triple talaq is a ‘privilege’ available only to men. There can be no room for such discrimition if there is general agreement that in the event of a conflict between constitutiol morality and persol law, it is constitutiol morality that ought to prevail. There is further discrimition in the provisions made for Muslim men and women. A woman who wishes to return to her former husband has to go through a humiliating process of another marriage, consummation of that marriage and a divorce again before she qualifies to return to her former husband. There are no such conditions stipulated for men. These are repugnt and discrimitory provisions for a secular republic that should have a common set of laws for all citizens.