Day 3 Arguments

May 16th 2017

On Day 3 in the Triple Talaq Case the Union of India represented by Attorney General of India (AG), Mr. Mukul Rohatgi began arguments. He advanced the proposition that all forms of talaq, irrespective of whether it is an ‘essential practice’ of Islam, should be subject to the fundamental right to equality.

 

Arguments of Union of India

Mr. Mukul Rohatgi, Attorney General of India (AG) began by urging the Court to assess the constitutional validity of all three practices – triple talaq, nikah halala and polygamy. However, the Chief Justice of India and Justice Nariman made it clear that the Bench was concerned only with the constitutional validity of triple talaq.

 

Next, he revisited legislation in theocratic and democratic Islamic States where triple talaq has been restricted to non-instantaneous, revocable talaq thereby allowing for reconciliation between the spouses. These countries include Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia and Indonesia. The AG further submitted that the High Courts of Delhi, Kerala, Guwahati and Madras have adopted a similar view and hence the Supreme Court must endorse this view.

 

The AG argued that with the enactment of the Shariat Act, 1937 Muslim personal laws are no longer a religious practice. Once personal laws have state recognition they are subject to fundamental rights under Article 13 and hence the Narasu Appa Mali case which provided immunity to uncodified personal law from fundamental rights challenges needs to be revisited. The Chief Justice of India and Justice Nariman clarified that as the present case dealt with the Shariat Act, 1937 it did not require the court to take a view on the status of uncodified personal law. Justice Kurian Joseph suggested that even personal law was subject to fundamental rights as set out in C. Masilamani.

 

The AG then turned to the argument about the scope of freedom of conscience and religion under Article 25. He stressed that even if triple talaq is protected under Article 25 it is subject to other fundamental rights of equality, life and dignity guaranteed under Articles 14, 15 and 21 respectively. Further, he argued that the word “morality” should interpreted as “constitutional morality” to include principles of gender justice, gender equality and gender equity. He urged the Court to recognize that Muslim women face discrimination at three levels: Muslim men have privileges against Muslim women, women from other communities have privileges and legal protection not extended to Muslim women and women in Islamic States are legally protected while Muslim women in India are not.

 

On these grounds, he concluded that the court should invalidate triple talaq by striking down Section 2 of the Shariat Act of 1937 as a violation of Articles 13, 14, 15, 21, and 51. He argued that all three forms of talaq (talaq ahsan, talaq hasan, talaq-e-bidat) being unilateral should be struck down and assured the court that the government will enact a new law of divorce for Muslims. The CJI responded that as the Court is a custodian of fundamental rights as well as minority rights it would only examine whether triple talaq is an essential practice of Islam.

 

The AG concluded by returning to a new form of the argument that Muslim personal law once incorporated into the Shariat Act, 1937 became secular and not religious law and therefore receives no protection under Article 25. The CJI and Justice Nariman differed and stated that marriage remained a religious and not purely a secular activity. The CJI suggested that if the Court accepted this proposition then the ideal law on marriage would be the Special Marriages Act and all other marriage laws such as the Hindu Marriage Act, 1956 would not be required.

 

Argument of All India Muslim Personal Law Board

Mr. Kapil Sibal, Sr. Adv. representing the All India Muslim Personal Law Board began his arguments towards the end of Day 3. He began with the proposition that until the mandate for a uniform civil code under Article 44 of the Constitution was realized both custom, as well as personal laws of all communities, would be protected under the Constitution. He suggested that despite codified laws, particular customs within religious communities continue to be protected. Matriarchal societies in Kerala and particular customs in Himachal Pradesh continue to be protected despite the enactment of the Hindu Marriage Act, 1956. As Parliament has not passed laws against such customs they continue to have legal effect. He emphasized that the core underlying issue before the court is that of patriarchy which pervades every religion and not the issue of triple talaq. Justice Kurian Joseph intervened to enquire if any State Legislature or Private Member had introduced a bill to abolish triple talaq. Mr Sibal clarified that no such Bill had been introduced and sought leave to continue on the next day.

(This post relies on contributions by Ms Meher Dev)