On May 18, 2017, the Supreme Court concluded hearing arguments and reserved its judgement in the Triple Talaq case wherein the constitutional validity of the practice among Muslims has been challenged by a Muslim lady, Ms. Shayara Bano, in W.P (C). No. 118/2016. In her Petition, Ms. Bano has sought a declaration to the effect that the practices of Talaq-e-bidat, Nikah-Halala and polygamy under Muslim personal laws are illegal and unconstitutional for being violative of Articles 14, 15, 21 and 25 of the Constitution.

This Petition was heard along with an earlier Writ Petition, S.M W.P. (C) No. 2/2015, taken up suo moto by the Apex Court on the same issue. As part of these proceedings, the All India Muslim Personal Law Board (AIMPLB) was also heard by the Supreme Court as an intervenor. The AIMPLB took the position that the issue before the Court was inextricably connected to Muslim Personal Law and hence Islam, and therefore interference by the Supreme Court with religious beliefs and personal laws is Constitutionally barred.

On the evening of May 18, I was invited by Rajya Sabha TV to take part in a panel discussion on the topic “Religious Beliefs versus Constitutional Morality: Challenges for Republic of India” on the program The Big Picture. Before I proceed further, I would be remiss to not point out that discussions on Rajya Sabha TV, especially on the programme The Big Picture, under the stewardship of the anchor Mr. Frank Rausan Pereira, are worth watching given the deft treatment of topics and sober handling of the discussions. Coming back to the topic, here’s the substance of some of the views expressed by some of the panellists on the programme:

1. That religious beliefs and personal laws are completely outside the purview of judicial review or intervention by the State;

2. That Constitution, being man-made law, must give way to Quran since the latter is God’s Word;

3. That the manner in which Triple Talaq is being contemporarily practised has no basis in the Quran and is a distortion of the original intent and practice;

4. That the Supreme Court must consider the sensitivities of the Muslim community in pronouncing its verdict and must endeavour to seek “maximum acceptability” from the community;

5. That the Muslim community must be given time to gradually evolve and that reform cannot be imposed overnight

While I will spell out my position in the ensuing portions of this piece (which I did in some detail on the programme), after the panel discussion I was asked by a well-meaning colleague from the legal fraternity as to how I could justify supporting the intervention by the Supreme Court in the case of Triple Talaq and also represent the “Ready to Wait” women devotees of Lord Ayyappa in the Sabarimala Temple case.

Although I did expect this question, which I think needs to be asked and answered, I do believe that any reasonable, objective and discerning person who doesn’t let confirmation bias affect her or his judgement, can distinguish between the issues thrown up by the Triple Talaq case and the Sabarimala Temple case.

Importantly, apart from the legal position that applies to these issues, the divergent positions taken by the AIMPLB and the Ready to Wait intervenors must also be taken note of before we paint them both with the same brush. While on the topic, it is important to discuss the Haji Ali Dargah case as well since the right of entry of Muslim women into the Dargah was in issue in the case. I will deal with these cases comparatively after setting out the legal position.

Position under the Constitution

In my ongoing six-part series in IndiaFacts on the rights of Hindu Religious Institutions under the Constitution, I have distilled the following legal position that emerges from a reading of Articles 25 and 26 and judgements of the Supreme Court which have dealt with their interplay:

A. Under the Constitution, no religious belief or practice, except those which are essential and integral to the character of the religion, can be considered to be outside the scope of intervention or review by the State so long as the manner and degree of intervention is in accordance with the Constitution;

B. The converse of this position is that the Constitution gives primacy to religious laws to the extent they are not based on discrimination or do not violate other Constitutional touchstones;

C. Therefore, it is evident that in any event, whether or not a religious practice or personal law rooted in religion is based on discrimination, needs to be necessarily tested on the anvils of the Constitution by Constitutional Courts;

D. To this end, before forming a view on the constitutionality of a religious practice or personal law, the Court needs to understand the practice/law, its origins, examine whether it has any basis in the scriptures of the faith, examine whether the practice/law is central to the tenets of the faith and whether it is based on values which are antithetical to the Constitution.

E. It is only after undertaking such a detailed examination required by law that a Constitutional Court can arrive at a finding with respect to a religious practice/law.

In light of the above legal position, it is not available for any community or religious denomination to take the position that the State has no business concerning itself with its religious beliefs or personal laws no matter how discriminatory or barbaric they are. In my view, this position equally applies to a practice which is central to the faith if it is based on discrimination or is downright barbaric. For instance, if hatred of another religion or a faith system is the very basis of a faith, can it be defended merely on the ground that the essential tenets of a faith cannot be interfered with by the State? That being said, a community or religious denomination, however, has the right to expect the Court to take an informed call instead of getting carried away by a “Saviour or Messiah Complex”.

Comparing and Reconciling Triple Talaq, Haji Ali Dargah and Sabarimala Temple

Since the Supreme Court is yet to pronounce its verdict in the Triple Talaq case, suffice it to say that the position of the AIMPLB that Muslim Personal Laws are beyond the scope of judicial review or Statist intervention, has no basis in law. If the Supreme Court arrives at the finding that the practice of Triple Talaq is not an essential tenet of Islam and is discriminatory, it does have the power to strike it down as unconstitutional applying the tests that apply to personal laws, customs and usages which too qualify as law under Article 13 of the Constitution. What would be interesting to see is the manner in which the Supreme Court deals with the practice if it finds it central to Islam.

As for the Haji Ali Dargah case, the Dargah Trustees took the following unanimous position before the Bombay High Court:

“The Trustees are unanimous on the point that entry of women in close proximity to the grave of a Male Muslim Saint is a grievous sin as per the Islam and as such the Trust is governed by the Constitution Law and particularly Article 26 of the Constitution of India which confers upon the Trust a Fundamental Right to manage its own affairs in matters of religion and as such interference is uncalled for by any Third Agency.

The existing arrangement for Women provides a Secure Place to them to offer prayers. This has been decided in the interest of safety and security of the women and they are close to the inner sanctorum of the Tomb as possible, considering the rush of Men, this arrangement has been welcomed by the women Pilgrims.

Hence the trustees unanimously, hold that at no point of time were women allowed to enter near the close proximity of the tomb of the saint and in fact the current arrangement at a Separate Entrance for women is more proximate to the Tomb than it earlier was.”

It was further submitted on behalf of the Dargah Trust that “menstruating women were unclean and impure in Islam and hence, could not offer prayers or visit the Dargah/Mosque, and that Islam refers to the issue of separation of men and boys from women and girls in social settings in Holy places.” Certain Quranic verses and Hadiths too were cited to support this position.

The Trust also contended that restricting the entry of women in the sanctum sanctorum of the Dargah was `an essential and integral part of Islam' and that such restriction was permissible and protected under Article 26(b) of the Constitution as "matters of religion”. Therefore, according to the Trust, if women were permitted to enter the sanctum sanctorum, the very nature of the religion would change.

However, the High Court took the view that none of the verses cited by the Trust threw light on how close proximity of women to the grave of a male Muslim Saint was sinful in Islam, as claimed by the Trust. Coupled with the fact that the bar on entry of women into the Dargah was not supported by any custom or usage, and women were allowed to enter the sanctum sanctorum of the Dargah until 2012, the High Court held that the Trust had no right to discriminate entry of women into a public place of worship under the guise of `managing the affairs of religion' under Article 26.

Critically, the Court held that the Trust does not qualify as a “religious denomination” under Article 26 in order for it to assert rights under it. Therefore, it is clear that the outcome of the case was directly connected to the inability of the Trust to marshal support for its position in the Quran, Hadiths or any other custom or usage or demonstrate its entitlement to fundamental rights under Article 26. On October 24, 2016, in the Special Leave Petition filed by the Dargah Trust, the Trust undertook before the Supreme Court to restore status quo ante i.e. to allow entry of women into the sanctum sanctorum at par with men as was the case until 2012.

Coming to the Sabarimala Temple case, I have written earlier that the questions that will need to be addressed by the Supremes are (a) whether the bar on entry of women of a certain age group in the Temple is rooted in the history and customs of the Temple and (b) whether misogyny and discrimination form the basis of such history/tradition.

If the scriptures that apply to the Temple reveal that misogyny plays no role in the decision to bar entry of women of a certain age group, and that the bar flows from the edict of the Presiding Deity of the Temple given the Deity’s celibate nature, the bar will have to be upheld because that would be consistent with the Constitutional mandate. This was the sum and substance of my submissions before the Supreme Court on behalf of the Ready to Wait group of women devotees of the Deity. Pertinently, it was never contended, unlike the AIMPLB, that religious beliefs are completely outside the pale of judicial review.

Therefore, in light of this reasoned, balanced and nuanced position taken in the Sabarimala Temple case, which was endorsed by a Division Bench of the Kerala High Court in 1991, comparisons with the position of the Haji Ali Dargah Trust or with that of the AIMPLB in the Triple Talaq case do not hold water.

In conclusion, all I would like to say is that the critical distinctions between the cases and issues are really not that difficult to comprehend. However, facts and logic can make a difference only to someone who is open to receiving them without preconceived notions. To those interested in peddling and regurgitating the Left’s borrowed and done-to-death tropes of class hatred, misogyny and patriarchy, facts and reason don’t matter.

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