Wider reform must begin

If religious practices conflict with matters of social welfare on which the state wants to legislate, such beliefs must yield to reform.

Peaceful social protests, marches, the questioning of those in power and authority and the search for a collective identity by those historically oppressed demonstrates that transformation is unavoidable. What is required is a state institution to channelise it all towards justice. When we talk about changing personal laws, especially Muslim Personal Law (MPL), the role of the legislature and the executive has been dubious and meant to serve political motives.

The All India Muslim Personal Law Board (AIMPLB) and many other conformist Muslim scholars raised objections even on the role of the judiciary in initiating these reforms. But the judiciary has once again come forward in Shayara Bano v Union of India to rescue vulnerable Muslim women from an archaic, discriminatory and arbitrary religious practice. Although the judgement striking down instant triple talaq is long and, as usual, muddled on the weightage of the opinions of the five-judge bench, a few legal propositions are noticeable.

Justice Rohinton Nariman, writing the majority judgement, rightly explained the role of the Supreme Court by referring to the decision of the Supreme Court of the United States in Obergefell v Hodges. Under our constitutional system, individuals need not await legislative action before asserting a fundamental right.

The nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act.

The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.” This is why “fundamental rights may not be submitted to a vote; they do not depend on the outcome of any election.

It is true that the definition of law under Article 13 does not contain ‘personal law’. This has been one of the main premises for keeping the judiciary out of the domain of personal laws. But constructing arguments exclusively on Article 13, the inclusion of which in the Constitution was as a matter of abundant caution, creates a legitimate doubt over the debate. Article 13 is not the only source of judicial review and, even if the article were absent, the result would have been the same.

If any of the fundamental rights is infringed, the court always has the power to declare the enactment, to the extent it transgresses the limits, invalid. Each Right in Part III was intended to be made a self-contained code with the right of redress guaranteed to them by Article 32. Now, Justice Nariman, who wrote the judgement for himself and Justice U U Lalit, and to which Justice Kurian Joseph agreed in his own opinion, declared that instant triple talaq is violative of the fundamental right contained under Article 14 of the Constitution.

The bench further discoursed that the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it recognises and enforces triple talaq, is within the meaning of the expression “laws in force” in Article 13(1), and must be struck down as being void to that extent.

Personal law and Constitution
All the judges agreed that personal laws derive their sanctity from religion and religious texts as guaranteed under Article 25 of the Constitution, that is, freedom of religion. However, minority judges could not comprehend the fact that this is the most restrictive fundamental right in part III of the Constitution. This provision has two significant limitations, which are an integral part of Article 25 itself.

The first limitation is discernible from the phrase “subject to public order, morality and health, and to the other fundamental rights of this part”. This empowers courts to review personal laws, if they contradict any of the fundamental rights, public order, health and morality.

Therefore, even if the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question — Sunnis belonging to the Hanafi school — as observed by Justice J S Khehar, it is open to judicial scrutiny by virtue of Article 25(1).

Personal law has constitutional protection to the extent that it is not against public order, morality and health, and to the other fundamental rights in part III. However, even the minority judges were inclined to believe that talaq-e-biddat is gender discriminatory (violation of Articles 14, 15 and 16), and proposed that the remedy lies with the legislature and the judiciary.

The second limitation is incorporated in Article 25(2), read with Entry 5 of the Concurrent List which empowers states to make laws providing for social welfare and reform. And if the state does that, it would not be a proper challenge that such a measure impinges on the religious freedom of any section of the citizens of India.

Religion in a modern democratic state is purely a matter of the individual and his god; the state would not normally interfere with the religious beliefs and practices of the citizen. But if these religious practices conflict with matters of social reform or welfare on which the state wants to legislate, such religious beliefs or practices must yield to the higher requirements of social welfare and reform. Article 246 and Entry 5 of the Concurrent List further clarify this.

The Union of India has appeared in this case in support of the cause of the petitioners. The posture adopted by the Union government is sufficient to assume that the Union of India supports the cause of Muslim women. Hence, at this juncture, the government cannot escape to venture into the profound reformative process that must unfold, howsoever hard it may be. Otherwise, this small judicial intervention will have no significance.

(The writer is Associate Professor of Law, National Law University, Odisha, and Deputy Registrar, Supreme Court)