Day 4 Arguments

May 17th 2017

Mr. Kapil Sibal, Sr. Adv., representing the All India Muslim Personal Law Board (AIMPLB), began proceedings before the five-judge Constitutional Bench on the 4th Day of the Triple Talaq case. He contended that the court cannot interfere in practices like triple talaq as personal law is not ‘law’ under Article 13 and not subject to fundamental rights review.

Arguments by All India Muslim Personal Law Board

Mr. Sibal first clarified that the Shariat Act, 1937 does not codify substantive Muslim personal law but restates that the Sharia shall apply as the rule of decision to Muslims overriding any custom or usage to the contrary. He asserted that the object of the Act was to overcome customs that discriminated against women in matters of inheritance. Moreover, since marriage is a private contract under Islamic Law, no State legislation can change it.

Mr. Sibal referred to the Constituent Assembly Debates to argue that the definition of law under Article 13 does not include personal laws. He pointed out that as the Assembly rejected amendments that sought to include “and anything else” to the definition of law it considered and rejected the inclusion of such law under Article 13. He suggested that the explicit mention of personal laws in the Concurrent List (List III of the Seventh Schedule) and its absence in Article 13 demonstrates the Constitution makers’ intention to exclude personal laws.

Mr. Sibal relied upon the Narasu Appa Mali case in the Bombay High Court to argue that personal laws cannot be challenged under Part III of the Constitution as they don’t fall under the definition of “law” or “laws in force”. He relied on Krishna Singh v Mathura Ahir and Youth Welfare Federation v Union of India to affirm that non-statutory personal law is excluded from Article 13 of the Constitution. He argued that more recently the Ahmedabad Women Action Group case confirmed the decisions in Narasu Appa Mali and Krishna Singh.

Justice Nariman wondered whether it was necessary to look into Narasu Appa Mali since Muslim personal law has been codified through the Shariat Act, 1937. The CJI responded that the Shariat Act was not a substantive codification as it only sought to get rid of customs contrary to personal laws.

Mr. Sibal then sought to show that certain customs deviating from personal laws are protected even after the codification of personal laws. For example, Section 29(2) of the Hindu Marriage Act, 1956 protects customs contrary to the Act. He argued that if customs and usages of Hindus are protected, then those of Muslims also ought to be protected. Hence, customary practices in Islam survive the Shariat Act, 1937.

He then turned to the right to freedom of religious practice under Article 25(2). He argued that the Constitution empowers Parliament to make social reform law on secular activities associated with religious practices. Hence, only after Parliament passed a law on the subject can a court assess its validity. Justice Kurien Joseph requested Mr Sibal to explain the meaning of the phrase: “secular activity associated with religious practice.” Mr. Sibal suggested that collection of money in a temple an example of such secular activity.

Mr. Sibal argued that Personal Laws are constitutionally protected but not immutable – as that would render a Uniform Civil Code impossible. However, any legislation on personal laws must satisfy the right to religion under Article 25 of the Constitution. He cited the Supreme Court in Riju Prasad Sarma v State of Assam to affirm the view that religious rights under Articles 25 and 26 can be curtailed only by law.

Mr. Sibal then sought to place this case in a historical and social context. He noted that it is important to protect minority rights in a Hindu majority state. Most jurisdictions that passed legislations abolishing triple talaq have Muslim majorities. Hence, India must be sensitive to the Muslim community’s minority status before legislation is proposed. Moreover, he argued that for 1400 years the Hanafi community had practiced triple talaq and cited verses from Hadith to show that triple talaq is an integral part of Hanafi School. He referred to Imam Abu Hanifa’s disciples who recorded his statements which approved of triple talaq.

Justice Kurien Joseph queried whether there is any conflict between the Quran and the practice of triple talaq. Mr. Sibal responded that while the Quran is silent on triple talaq, there is nothing in it that prohibits triple talaq. Moreover, petitioners view that the Quran alone is the source for understanding talaq is incorrect as the Sharia is based on the Quran, Hadith and interpretations of scholars. Mr. Sibal submitted that though the procedure of triple talaq has been developed through Hadith and not the Quran, the Prophet did not ever say that the procedure set in  the Quran was the only one.

He concluded by restating that the belief and practice of religion by the Hanafi School is protected under Article 25 and the court should not sit in judgment over the validity of such a belief. He submitted that the High Court cases cited by the Union of India should not be relied upon as they do not directly deal with the validity of triple talaq. In particular he argued that the Delhi High Court in Masroor Ahmed v NCT Delhi, relied on scholars of the school of Al-e-Hadith and not Hanafi and hence reached a mistaken conclusion.

At this stage, the CJI pointed out that Masroor Ahmed relied on companions of the Prophet who held that the practice of triple talaq was not sanctioned but was imposed as a punishment. Mr. Sibal responded that these historical disputes are irrelevant as triple talaq has now become a core belief and practice of the Hanafi School.

Mr Sibal concluded arguments by claiming that Muslim women are not discriminated against by the triple talaq rule and may even benefit from immediate relief from bad marriages. He proposed four options for a Muslim woman to protect herself from a discriminatory use of the triple talaq: first, she may register the marriage under the Special Marriage Act, 1954; second, she can insert conditions in to the Nikahnama to prohibit her husband from exercising a triple talaq; thirdly, she delegate the right to talaq to herself and finally, insist on the payment of a high Mehr amount to deter the exercise of triple talaq.

Mr Sibal will continue arguments on Day 5.

 

(This post relies on contributions from Meher Dev)