The Supreme Court, the government and Muslim bodies all agree that the practice of triple talaq needs reform. While Muslim bodies have asked the court and the state to stand back and wait till the community reforms itself from within, the Supreme Court and the government are engaged in a slanging match on who should bell the cat.
The government wants the court to strike down all three forms of triple talaq and pave the way for the state to introduce a new Muslim divorce law. The court, however, wants the state to first legislate.
The answers to the present conundrum can be found in the records of Constituent Assembly debates from two days — December 1 and 6, 1948. They suggest that our founding fathers did not contemplate a role for the courts in introducing reform to a community’s personal laws. According to them, it is Parliament which is to codify social reform in a statutory law. The courts, subsequently, have to interpret it in case any dispute arises from the statute.
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The debates focussed on the proposed inclusion of a new clause ‘h’ into Article 19 (1) to make personal law a fundamental right and thereby restrict Parliament’s power to regulate and interfere with personal laws.
A Constituent Assembly member from Madras, Mohammed Ismail Sahib, argued that personal law is a part of religion. He said that anything that affects personal law was interference with religion itself. Replying to this, B.R. Ambedkar made it clear that Parliament could strike down any personal law which was in conflict with the fundamental rights of the people. He said religion should be confined to only certain “essential” ceremonials and rituals. He also said it is the state which has the power to legislate and remove inequities, inequalities and discrimination prevalent in personal laws of communities.
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“[The] state is claiming only the power to legislate. No one needs to be apprehensive of the fact that if the state has the power, the state will immediately proceed to execute or enforce in a manner that may be found objectionable by Muslims or Christians or any other community in India,” Dr. Ambedkar said.
On December 6, 1948, another CA member, Dr. K. Santhanam, said Article 25 of the Constitution is “really not so much an article on religious freedom, but an article on, what I may call religious toleration”. Parliament can encroach into personal law practices and legislate if they are found to be violative of “public order, morality and health”, he said.