The Centre’s categorical stand that personal laws should be in conformity with the Constitution will be of immense assistance to the Supreme Court in determining the validity of practices such as triple talaq and polygamy. By arguing that such practices impact adversely on the right of women to a life of dignity, the Centre has raised the question whether constitutional protection given to religious practices should extend even to those that are not in compliance with fundamental rights. The distinction between practices essential or integral to a particular religion, which are protected under Article 25, a provision that seeks to preserve the freedom to practise and propagate any religion, and those that go against the concepts of equality and dignity, which are fundamental rights, is something that the court will have to carefully evaluate while adjudicating the validity of the Muslim practices under challenge. From the point of view of the fundamental rights of those affected, mostly women, there is a strong case for these practices to be invalidated. The idea that personal laws of religions should be beyond the scope of judicial review, and that they are not subject to the Constitution, is inherently abhorrent. The affidavit in which the All India Muslim Personal Law Board sought to defend triple talaq and polygamy is but an execrable summary of the patriarchal notions entrenched in conservative sections of society.
This is not the first time that aspects of Muslim personal law have come up for judicial adjudication. On triple talaq, courts have adopted the view that Islam does not sanction divorce without reason or any attempt at reconciliation, and that talaq would not be valid unless some conditions are fulfilled. There are judgments that say the presence of witnesses during the pronouncement of talaq, sound reasons for the husband to seek a divorce and some proof that an attempt was made for conciliation are conditions precedent for upholding a divorce. The present petition before the Supreme Court seeks a categorical ruling that talaq-e-bidat — an irrevocable form of triple talaq that is permitted but considered undesirable in Islam — is unconstitutional. There are many who contend that instant divorce is not allowed, and that the triple talaq has to be spread over a specified time period, during which there are two opportunities to revoke it. Only the articulation of the third makes it irrevocable. It should be possible for the court to test these practices for compliance with the Constitution.