'Triple talaq not issue of majority, minority'

Centre says it is a fight between men and women

The Centre on Wednesday told the Supreme Court that triple talaq is not a tussle between majority and minority, but it is an intra-minority fight of women against men. Attorney General Mukul Rohatgi submitted before a five-judge Constitution bench presided over by Chief Justice J S Khehar that the women suffered domination due to employment and empowerment of men, and the practice should be declared unconstitutional.

“Even right to religion is not absolute and its core practices are subject to part III (fundamental rights) of the Constitution,” he maintained. “A secular country has to rise above all these things... there is no bargaining power for women in ‘nikahnama’. They have to live under the cloud of apprehension and 1,400 years of practice does not make it valid. The religion will remain in existence, even if you (the court) strike it down,” he said.

The top law officer said, “Any pernicious practice of a religion can be declared as violation of fundamental rights and hence declared as unconstitutional. Say, for example, nobody can claim to practice human sacrifice as part of his or her religion.”

Making rejoinder arguments in the batch of petitions challenging the legal validity of triple talaq, he said the issue was not whether the practice was an optional or integral part of the religion.

“The question is, even if it is an integral part of the religion, should it not be tested on touchstone of fundamental rights of equality and no discrimination. The religion will not cease to exist if the practice is declared invalid and illegal,” he said. Rohatgi gave example of abolished practices like sati, infanticide, devadasi among  Hindus.

The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and S Abdul Nazeer, asked, “Has the court ever in the last 70 years stepped into such affairs? Can the court say something is part of personal law or not.”

The bench pointed out that the practices like sati and devadasi were banned by the legislations. “Of course, legislations can step in. But courts are not powerless...we will do what we need to do. It is time for you to do it now,” Rohatgi told the bench. He questioned the contention made by the AIMPLB and other Muslim organisations that though the practice was sinful, undesirable and optional it is an integral part of religion.