The call to banish triple talaq should not be perceived as an attempt by the Hindu majority to “swamp or dominate” the Muslim minority, the National Democratic Alliance government told the Supreme Court on Wednesday.
In actuality, this is a cry by Muslim women for justice against the men of their own religion, Attorney-General Mukul Rohatgi submitted before a Constitution Bench led by Chief Justice of India J.S. Khehar.
“This is not a tussle between the majority and the minority of the country. The real tussle is between the Muslim men and women. Women have questioned centuries of hegemony they suffered at the hands of the men within the community... The men are strong, dominant, educated and probably the sole breadwinners, while the women born to fear, weak and with no public employment. This is the battle between the haves and the have-nots within the Muslim community. The battle is intra-minority,” he submitted.
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Mr. Rohatgi was countering arguments led by senior advocate Kapil Sibal for the All India Muslim Personal Law Board (AIMPLB) that triple talaq was a 1,400-year-old practice and neither the Supreme Court nor the government should dictate reform to Islam. Reform would come from within the community on its own terms.
Justice Khehar said that rather than the Supreme Court, the government should initiate legislation to drive the perceived hegemony away.
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“I [Centre] will do what I have to do. Question is what will you do? The hallmark of a secular court is to start reform without waiting for legislation. Be the guardian of the rights of women and the weak. Protect their fundamental rights of dignity and equality. Even Article 25 [freedom of religion] is subject to fundamental rights,” Mr. Rohatgi responded.
If instant talaq is sinful, why is it essential to religion?
Justice Kurian Joseph intervened to point out that the Constitution also says to leave personal laws and customs alone.
“Yes, the Constitution says we will preserve your religion, whatever it is. But if there is a clash between your personal law practices and the fundamental rights of equality and dignity, your personal law practices should give way,” Mr. Rohatgi replied.
He said the court should look into the background of the making of the Constitution. Blood was shed in the name of religion during the Partition. The Constitution makers did not want a sequel. So, they kept the core part of every religion, but said this was subject to fundamental rights.
“It is truly a secular, pluralistic Constitution,” Mr. Rohatgi said. The court should not take on the mantle of an ecclesiastical forum. It should test triple talaq on the anvil of the Constitution rather than the Quran.
He countered arguments by Muslim bodies that triple talaq was essential to religion.
“How can something be sinful, undesirable, optional and at the same time integral to religion? The proof that triple talaq is not essential lies in the fact that Islam continues to thrive in many countries which had banished triple talaq,” he submitted.
Mr. Rohatgi submitted how Hinduism survives despite making practices like Sati, infanticide and Devadasis illegal.
At this point, Justice Khehar pointed out that these practices were given the death blow by legislation and not by courts.
Justice Rohinton Nariman referred to the government’s dare that it would bring in a new Muslim divorce law if the Supreme Court first struck down all three forms of triple talaq as unconstitutional.
“If we do that, ours doors are closed. Then the onus is on you to bring in law and frame rules,” Justice Nariman warned the government.
“I cannot answer for the government. I am speaking for the Government of India. My instruction is to tell you that the government is ready to bring in a new law,” Mr. Rohatgi said.