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Triple Talaq (Day -3) - Personal Law Can Be Tested On The Touchstone Of Fundamental Rights: AG [Read Written Submissions]

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15 May 2017 6:58 PM GMT
Triple Talaq (Day -3) - Personal Law Can Be Tested On The Touchstone Of Fundamental Rights: AG [Read Written Submissions]
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Advocate General of India Mr. Mukul Rohatgi on Monday commenced his arguments on behalf of the Union of India before the Constitution Bench in the Triple Talaq case. While he urged the Court to look into all three impugned practices of triple talaq, nikah halala and polygamy, the Chief Justice of India and Justice Nariman made it clear that they will assess the constitutional validity of only triple talaq, and leave the latter two impugned practices to be decided later on by another Constitutional Bench of 5 judges.

The AG made the following submissions:

  1. The practices of talaq-e-bidat, nikah halala and polygamy are not protected under Article 25(1) of the Constitution.

  2. Article 25(1) is subject to Part III of the Constitution and in particular to Articles 14 and 21 of the Constitution.

  3. Personal law is “law” within the meaning of Article 13 of the Constitution.

  4. The practices of talaq-e-bidat, nikah halala and polygamy are not compatible with India’s obligations under international treaties and covenants to which it is a signatory.

He highlighted the following aspects in his submissions:

Facets of discrimination that arise on account of the impugned practices

Mr. Rohatgi contended that the practice of triple talaq denies to Muslim women the full enjoyment of fundamental rights guaranteed under the Constitution. He therefore submitted, “The practices which are under challenge, namely, triple talaq, nikah halala and polygamy are practices which impact the social status and dignity of Muslim women and render them unequal and vulnerable qua men belonging to their own community; women belonging to other communities and also Muslim women outside India.”

Mr. Rohatgi further contended that these practices give rise to an unreasonable differentiation/ classification between Muslim women and non-Muslim women who are both citizens of the same country. “Such discrimination based on religion cannot be countenanced in a secular country,” the submissions said.

The AG pointed out that a large number of Muslim countries or countries with overwhelmingly large Muslim population have undertaken significant reforms and the practices of ‘instant triple talaq’ or ‘automatic polygamy at will’ is not permitted in most of these countries. He further submitted in this regard, “It is noteworthy that even theocratic states have undergone reform in this area of the law and therefore in a secular republic like India there is no reason to deny women the rights available under the Constitution. The fact that Muslim countries have undergone extensive reform would also bely the case that the practices in question are an essential religious practice.”

“The paradox is that Muslim women in India are more vulnerable in their social status because of the prevalence of such practices, even though they live in a secular country. Therefore, the position of Indian women is weaker than women who live in theocratic societies or countries where Islam is the State religion,” he further submitted, averring that the impugned practices are repugnant to the guarantee of secularism under the Indian Constitution.

Incorrectness of observations on personal law in Narasu Appa Mali

Mr. Rohatgi submitted that preservation of diverse entities through personal laws “cannot be a pretext for denying to women the status and gender equality they are entitled to under the Constitution as citizens of India.” He further averred that personal law is “law” within the meaning of Article 13, and any such law which is inconsistent with Fundamental Rights is void.

He then opined that the interpretation of a Division Bench of the Bombay High Court in State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 to the effect that Article 13 of the Constitution does not cover personal laws warrants reconsideration.

Mr. Rohatgi submitted that the meaning of “law” as defined in sub-articles (2) and (3) of Article 13 is not exhaustive, and covers personal law. He pointed out that under clause (2) of article 246 of the Constitution, Parliament and State Legislatures have power to make laws also on subject matters enumerated in entry 5 of Concurrent List of the Seventh Schedule to the Constitution pertaining to ‘Marriage and divorce; infants and minors; adoption; wills; intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law’. He therefore submitted that since the subject matters of Entry 5 are relatable to personal laws, it would be law within the meaning of sub-clause (a) of clause (3) of Article 13 of the Constitution.

Mr. Rohatgi further submitted that the observations in Narasu Appa Mali’s case are obiter, and do not constitute the ratio of the judgment. Nevertheless, he pointed out that the impugned practices have been incorporated into the Muslim Personal Law (Shariat) Application Act, 1937 which is a “law in force” within the meaning of Article 13(3) (b). He then averred that the Petitioner challenges Section 2 of the aforesaid Act in so far as it recognizes and validates the practices of triple talaq or talaq-e-bidat, nikah halala and polygamy.

Impugned practices do not satisfy the essential practice test

Mr. Rohatgi contended that while the Constitution accords guarantee of faith and belief to every citizen, every practice cannot be held to be an integral part of such faith and belief. Religious practices, he submitted, must satisfy the overarching constitutional goal of gender equality, gender justice and dignity.

He then submitted that the practices of triple talaq, nikah halala and polygamy cannot be regarded as part of any “essential religious practice” and would not therefore automatically be entitled to protection under Article 25.

Read the AG's written submissions.

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