The issue of triple talaq seemed to have taken a center stage both in political and legal discourse. While on the one hand, the government’s stand before the Apex court against this practice is based on certain well entrenched constitutional principles, the Muslim clerics on the other hand, try to uphold this centuries old practice as a part of their religious freedom which according to their assertion, cannot be interfered with from any quarter under any circumstances. According to them any interference would destroy the secular fabric which constitution has so painstakingly woven into the body politic of the nation.
To put things into right perspective, let’s first of all, put to ourselves certain genuine questions:
Is a practice like triple talaq constitutionally tenable in a country like India where rule of law is the foundational principle of our constitutional edifice?
Can we allow such a practice to continue well into the 21st century when a new jurisprudence of rights has seen its evolution even for non humans?
Can universal values like human rights be given a go by in the name of some ill founded and irrational customary practices in the name of religious freedom?
Can a practice like triple talaq be defended on the ground of religious freedom as is being claimed or is it merely a cloak for male hegemony?
Lets answer the last question first as rest of the questions could be answered automatically once we examine the contours of the right to religious freedom which our constitution guarantees.
The biggest paradox in the matter of religious freedom lies in the fact that the term religion is not subject to any precise definition and this is where the problem lies as some times purely secular activities like matrimony or inheritance are being claimed as a part of the religion and hence claiming immunity from being challenged or interfered with.
No doubt, a religion is certainly a matter of faith and a belief system which binds the spiritual nature of a human being to some so called super natural being and this spiritual bond is established by a person through several ways such as worship, belief, faith, devotion and not necessarily worshipping idols. At the same time, a religion instead of merely being a belief system or matters of faith does include all those rituals, observances, ceremonies, practices as well as various modes of worship that are associated with a particular religion. It is in this all encompassing sense that our constitution guarantees the right to religious freedom to everyone. In other words, our constitution not only permits one to hold on to particular beliefs and faiths but also to exhibit the same in any overt manner in the form of ceremonies, rituals or practices.
But then comes the dominant question as to what practices or ceremonies be considered an integral part of the religion because, if this distinction is not made, the danger remains that even purely secular practices not essential to a religion may be given a religious color and be sought protection from being regulated or challenged.
Therefore, in order to decide that a particular practice be treated as a part of the religion, what is necessary is that it should be as such regarded by that religion as its essential and integral part. This is a very delicate task which the judiciary has performed many times earlier and would decide even in the present case under challenge before it.
With a particular reference to triple talaq, it can be said beyond any iota of doubt that it does not constitute in any sense an essential or integral part of the Muslim religion. To this extent even the Muslim personal law board has conceded by toning down its stance before the court in this matter.
Sometimes, it is also seen that certain practices, even though regarded as religious by a particular religion may have come into being from purely superstitious beliefs and are thus considered as just unessential additions to a particular religion lacking even scriptural backing. Such practices are also not protected under the constitution as not being an integral or essential part of the religion. An instance in this regard if we take Hindu religion as an example were the practices like Child marriage and Sati which were based on just superstitious beliefs among Hindus and held to be not an integral part of Hindu religion. This is why such practices were legally banned nay criminalized in India. Hence, if triple talaq is being considered as a part of Islamic belief system as it is being claimed then such a belief does not carry the blessings of religious freedom just like the practices like Sati or Dowry have had been considered as a part of religious belief among the Hindus. At the same time, Marriage being a secular activity does not fall within the ambit of religious freedom despite having religious underpinnings.
In this sense also, triple talaq is nothing but a superstitious practice which neither carries the conscience of the whole Muslim community nor does it carry the sanction of the tenets of the Islamic religion so much so that the Holy Quran even denigrates such a practice as ‘biddat’ meaning sinful and un-Islamic. After all, to decide a particular religious practice as an essential part of the religion, the only possible recourse is to delve into the Holy Scriptures to know about the status of a particular practice. As in a celebrated case, the Supreme Court found that with reference to Holy book of Quran, compulsorily sacrificing a Cow on Bakr Id day could not be considered as an essential part of the religion. For a Muslim to exhibit his religious beliefs on this day, the Quranic text laid down an option for him to sacrifice a goat or for seven goats, a Cow or a Camel. Hence, there was no Fundamental Right of a Muslim to insist on slaughter of a Cow on the Bakr Id day.
On the same analogy, it has also been held that Purdah system is also not an essential part of the Islamic religion although; this practice has been followed in Muslim religion even to the present day. On the same plank thus, the practice of triple talaq can also be placed.
To be more illustrative as what constitutes an essential part of the religion, we can also cite the example of Sikh religion where carrying of Kirpans or keeping beard and hair unshorn has been held to be an essential part of the Sikh religion as their mention is very well found in the holy scriptures.
Having said that triple talaq is neither an essential or integral part of the religion nor it is held in conscience by the Muslim community as a whole and thus cannot attract the protection of religious freedom under our Constitution.
Let’s say for the sake of arguments although such an argument does not hold any ground that triple talaq is a part of the religious freedom under our constitution, even then it cannot be sustained and can be subject to the regulatory power of the state to the point of abrogation of this practice. This is because; the right guaranteed by our Constitution is not an absolute right but is subject to certain limitations as is revealed by the wordings of Article 25 which states:
“That every person in India shall have a freedom of conscience and a right freely to profess, practice and propagate religion of his own.”
This freedom under the constitution however comes with a rider that the same shall be subject to public order, health and morality as well as other provisions relating to Fundamental Rights.
It clearly means that if a certain community, say for example in the context of triple talaq claims that it is a part of their religious freedom falling within the ambit of practicing a particular religion even then the same can be regulated by the state on the grounds listed above most importantly, on the grounds of health and morality.
A practice like triple talaq is not only heavily loaded against the Muslim women, but it is also detrimental to their health keeping in view the mental stigma and emotional disturbance that it can have on the victims of this practice. There is a clear evidence that triple talaq has had serious repercussions on the mental health of the Muslim women who willy nilly went through this stigma.
At the same time, just like polygamy, triple talaq also goes against the principle of morality as being injurious to public morals and can thus be struck down on this ground as well.
Yet more importantly, the right to religious freedom is also subject to regulation on the part of the state on the ground of social welfare and reform. By abrogating or legally regulating this practice, the state shall be taking a progressive step forward in the direction of social welfare and social reform by protecting the interests of the poor and destitute Muslim women who would otherwise tend to remain always at the receiving end of the male dominated Muslim society especially when they would be driven out of their home towards the fag end of their life.
Last but not the least, a practice like triple talaq also goes against certain other entrenched provisions of the Constitution broadly, gender justice that is guaranteed by our constitution in unequivocal terms under the provisions relating to Fundamental Rights.
Firstly, Article 14 of the Constitution guarantees to every person in India, equality before Law and equal protection of Laws. The notion of equality before law strikes at the very root of arbitrariness and thus promotes the concept of Rule of Law. Isn’t it that a practice like triple talaq negates the very conception of rule of law? It certainly does and thus imposes a duty nay a constitutional obligation on the part of the judiciary to emasculate such a practice from the landscape of the Indian society.
Moreover, it must be underlined that the conception of rule of law even at the supranational level has been given socio-economic overtones so as to embrace the notion of social justice within its ambit. By striking down a practice like triple talaq on the touchstone of the Constitution, the judiciary would be doing a great service to this nation by upholding the concept of rule of law that nevertheless is a keystone of our Constitutional edifice.
Secondly, Article 15 of the Constitution again in very clear terms outlaws gender discrimination and coupled with that it also imposes an additional duty on the state to make special provisions for the welfare of the women-(Article 15(3). This provision again casts a duty on the Judiciary to uphold these provisions of the Constitution especially when it has been designated as the guardian of the Fundamental Rights of the people of this country.
Thirdly, Article 21 which guarantees to every person in India a right to life and personal liberty under which right to life connotes a right to live a life with human dignity. Isn’t that a practice like triple talaq goes against the very spirit of a dignified life?
Finally, Article 51-A under Fundamental duties imposes a duty on every citizen of the country to renounce practices which are derogatory to the dignity of the women - (Aricle-51-A (e)).
All said and done therefore, it is hoped that our judiciary by interpreting the several provisions of the Constitution in the backdrop of raging triple talaq row, would once again ensure that in our country, Constitution reigns as the supreme Law of the Land…