However, the Chief Justice of India and Justice Nariman made it clear that were assessing 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.
Practices in other jurisdictions proves not essential practice of Islam
Then, he took the Court through legislations passed in theocratic Islamic States as well as Democratic States where the impugned practice of triple talaq has been staggered into the form of non-instantaneous revocable talaq allowing for reconciliation between the husband and wife. These countries included, Pakistan, Bangladesh, Afghanistan, Morocco, Tunisia, Sri Lanka and Indonesia.
The Chief Justice of India and Justice Nariman asked the AGI to clarify which one of these countries is dominated by Sunnis and which by Shias, and which are theocratic and which secular, to which the AG said most are Sunnis but he would confirm and revert later. He urged the Court to note that theocratic states are moving towards reform and so shall a secular state like India.
Then the AGI drew the attention of the Court to High Court decisions including that of Justice Badar Durez of Delhi High Court and decisions of the Kerala High Court, Gauhati High Court and Madras High Court to indicate the international practice in the above said countries has been adopted by these High Courts and one way for the Supreme Court to deal with matter is adopt the decisions of the High Court that declare that triple talaq shall be treated as a single talaq which is revocable and not staggered over months allowing for reconciliation.
The Chief Justice of India asked Mr. Kapil Sibal, Sr. Adv. to confirm if practices in all countries as put by the AGI were accurate, to which he responded by stating that as per his understanding the position as put forth before the Court is accurate and he will raise and objection if he finds and discrepancy.
The AGI then cited Tahir Mahmood’s book on practices of other countries such as Iraq, Jordan, Sudan, Syria, Yemen, Malaysia and Philippines, with regard to triple talaq. Justice Nariman observed that the U.A.E seems to recognise triple talaq and the Chief Justice of India noted that the Court will look into the Quran to assess if practice of triple talaq is part of Muslim Personal Laws.
Personal Laws under Article 13
The AGI responded by stating that personal laws have nothing to do with religion and essentially govern how one lives and that can be regulated and indeed has been to an extent regulated by the Sharia Act of 1937. He stated that once established that personal laws have state recognition and here are even statutory laws thus squarely fall under Article 13 and as a corollary the impugned practices can be tested on the touchstone of Fundamental Rights under Part III of the Indian Constitution. He further noted that marriage etc are not protected under Article 25 right to religion.
The AGI was interjected by Justice Kurian Joseph who asked him whether the Court be asked to decide whether something is part of personal laws or not, to which the AGI responded in the affirmative.
The AGI also told the Court that the 1952 Narsu Appamali case of the Bombay High Court that held that personal laws cannot be challenged as being violative of fundamental rights needs reconsideration.
Chief Justice of India and Justice Nariman opined that that issue is not relevant for the case at hand as Muslim Personal Law is recognized by statutory law that is the Shariat Act of 1937. Justice Kurian Joseph seemed to differ and responded saying that the Supreme Court has directly given an opposite answer in the C. Masilamani case where it observed that personal laws are subject to fundamental rights.
Article 25 right to religion subject to other FRs
Then the AGI moved to substantiate his Article 25 right to religion argument by submitting that even if the impugned practice of triple talaq is assumed to be a part of Article 25, even then such right is subject to fundamental rights of equality, life and dignity guaranteed under Articles 14, 15 and 21 and subject to “morality” which means “Constitutional Morality” which includes gender justice, gender equality and gender equity.
The Chief Justice of India expressed his non-inclination with the AGI’s argument of constitutional morality.
The AGI referred to Constituent Assembly Debates again to indicate that Article 25 doesn’t protect personal laws.
Article 14 right to equality argument
The AGI then moved onto his Article 14 argument. He expressed that Muslim women have a right to live like Hindu, Christian, Sikh women who are enjoying their rights to the fullest. He stated that Article 51 of the Indian Constitution demands that the State preserves the dignity of women. He said Muslim women are facing discrimination at three levels: Muslim man favored against Muslim woman, Women from other communities protected and no similar protection extended to Muslim woman, Women in Islamic States protected and not Muslim women in India.
Solution offered by AGI
Justice U.U. Lalit asked the AGI as to how shall the Court remove the persisting inequality arising of the practice of triple talaq. The AGI responded by stating that the Supreme Court shall strike down triple talaq by striking down Section 2 of the Sharia Act of 1937 to the extent it recognizes a constitutionally immoral practice that is violative of Articles 13, 14, 15, 21, and 51. He stated that his stand is against the broader practice of talaq to the extent it is unilateral and thus if the Court strikes down all prevailing forms of talaq then his government will bring in law to fill in the vacuum.
The Chief Justice of India did not seem inclined to this proposition and stated that “We are guardian of FRs as well as minority rights” and if you can establish that the impugned practice is not an essential part of the religion of Islam then you don’t need to go into anything else.
The AGI responded by stating that a declaration to the effect that triple talaq is or is not an essential practice of religion will not be helpful, the Court shall strike down triple talaq and endorse the High Court decisions that indicated that triple talaq is an innovative form of talaq meant to exist temporarily and introduced for a specific reason in the pre-Islamic and continued in the Islamic era.
The Chief Justice of India expressed his view that the tenets of any religion can’t be tested in court. The AGI responded by stating that it is the duty of a constitutional bench to do so and that is the precise reason they were constituted. While Justice Kurian Joseph agreed that a constitutional bench is set up to undertake an interpretation of the Constitution on a matter of substantial importance, the Chief Justice of India disagreed and opined that constitutional benches are also set up if large number of people are affected.
Justice Kurian asked if any part was taking the stand that triple talaq is Islamic – to which Mr. Kapil Sibal, Sr. Adv. responded in the affirmative.
Marriage & Divorce – Secular in nature
The AGI cited cases laws starting from the Sarla Mudgal case to indicate that marriage and divorce are secular in nature. He quoted Dr. Ambedkar to submit that political democracy entails social democracy which includes social equality for all including women.
The Chief Justice observed that many cases cited on this point by the AGI were out of context and based on service jurisprudence or completely different facts and circumstances. The AGI responded by stating that he has also cited cases in the context of succession and inheritance, and marriage and the former two matters are always clubbed together since the Sarla Mudgal case.
Then the AGI referred to Constituent Assembly Debates to indicate how there were proposals to divorce marriage and divorce from religion – to which the Chief Justice of India responded by stating that these proposals were not incorporated in the Constitution. Justice Nariman responded by stating that to an extent secular activities are divorced from religion as the State has the power to enact laws on secular activities associated with religious practice under Article 25(2)(a) of the Indian Constitution.
The AGI responded to the CJI by stating that there was no need to incorporate the proposal as the Sharia Act of 1937 already existed and divorced the religion from secular activities.
Then, Justice Nariman posed a very interesting question that is whether the Hindu Marriage Act of 1956 was enacted under Article 25 (2) (a) or (b). The AGI sought some time to think about it and revert.
The Chief Justice of India and Justice Nariman expressed that as per them marriage was a religious activity and not purely a secular activity. The CJI stated that if the Court accepted the proposition of the AGI then in that case the ideal law on marriage would be the Special Marriages Act and all other laws on marriages such as the Hindu Marriage Act of 1956 would have to be gotten rid of.
The CJI and Justice Nariman brought to the notice of the AGI that though Article 25 right to religion is subject to FRs, Article 26 is not subject to FRs.
Challenge can be brought only against State Action
Justice Nariman pointed out that a challenge can be brought only against State Action for violation of FRs, barring the exception of Article 17 that prohibits the practice of untouchability amongst private individuals.
He noted that once the State bring a law on the matter of triple talaq then the Court can very well assess its constitutional validity based on FRs. The AGI urged the Court to take the first step and said the matter being very sensitive thus Parliament hasn’t yet brought a law.
Sharia Act optional or mandatory
The Chief Justice of India was of the opinion that the Sharia Act of 1937 seemed to be an optional code since Section 3 of the said Act requires a declaration being made that the individual is Muslim and thus he/she shall be granted the benefit of the Act.
The AGI differed and stated that on a reading of Section 2 of the Act it is clear that Section 2 applies ipso facto as it used the word “shall” apply to all Muslims and is not qualified by Section 3.
Jutsice Nariman favored his proposition by stating that the declaration under Section 3 of the Act was more for those who had converted into Islam to ensure that converts let go of their customs of prior religions and follow Sharia to its fullest.
Tushar Mehta, ASG submitted his written submissions to the Court to supplement the arguments of the AGI.
Argument of All India Muslim Personal Law Board
Mr. Kapil Sibal, Sr. Adv. representing the All India Muslim Personal Law Board gave the Court a flavor of his argument as only 10 minutes remained before the Court rose.
He began with submitting that a uniform civil code as envisaged under Article 44 of the Indian Constitution still remains a hope. But till such time – both custom and usage as well as personal laws of all communities are protected under the Constitution.
He opined that Hindu marriage customs and usages are still protected despite Hindu Marriage Act, 1956, customs of matriarchal societies of Kerala remain protected, and customs of those in Himachal Pradesh also remain protected under Article 29 as part of their culture.
He implied that the fact that the Parliament has not passed laws against such customs is an indication of protection of such customs. He further asked the Court to take note of the fact that there is difference between custom and personal laws.
He agreed that personal laws cannot be immutable as then Article 44 would become redundant. For him, the main issue in the case was not of triple talaq or personal laws but of patriarchy that pervades every religion. On being asked by Justice Kurian Joseph if any State Legislature or Private Member has tried introducing a bill to abolish triple talaq, he replied in the negative and said will continue tomorrow.
Mr. Kapil Sibal, Sr. Adv. representing the All India Muslim Personal Law Board will commence his arguments and will be followed by Mr. Raju Ramchandran Sr. Adv. representing the Jamat-ul-i-Hind.
Read the AG’s written submissions.