In the triple talaq case, the court might have been constrained by the existence of personal laws – a strong reason why Uniform Civil Code is the next logical step.
The outlawing of instant triple talaq by the Supreme Court has come as a big relief to Muslim women living under constant fear of the capricious sways of their spouses. In its majority judgment, the court has asked Parliament to enact a law anulling triple talaq within six months.
However, while setting aside of the regressive practice comes as a consolation, Sharia compatibility of triple talaq as the basis of trial might have far reaching consequences for the principles of justice in the long run. In the sense, the Supreme Court had made it clear from the beginning that it would examine the tenability of the case only to determine whether triple talaq was a practice integral to Islam, the flaw lay more with the legislature in allowing its continuation as part of personal laws so far.
But the courts, which have intervened in many religious practices, taking suo motu cognisance on occasions, still had a good opportunity in the case to question the validity of discriminatory personal laws. It is disappointing to note that three out of five judges, whether interpreting the provision as legal or illegal under Sharia, upheld the primacy of personal laws over Article 14 of the Indian Constitution. It is equally unfortunate that the opportunity to question the captivity of individual rights by religion and religious leaders has been wasted in favour of an exercise which principally legitimises personal laws based on societal and religious mores of a distant past.
In the course of the judgment, Justice Kurien Joseph observed: “What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case”. While the statement might illustrate his seeming helplessness, in consequence it turns out to be apathy towards the misery of women taken hostage by a set of laws because of the accident of their birth.
The discrimination in personal laws, besides divorce, extends to various other laws like alimony, marriage, gender equality, inheritance and adoption. If the situation is better for women and minors under Hindu and Christian personal laws, it is also because of amendments in the spirit of modern laws. Triple talaq case in Supreme Court was both an opportunity to amend Muslim personal law as well as deliberate on the ambit of religion and its limits to exercise control over individual rights in a secular polity. If sati and caste discrimination are justly outlawed, polygamy, in a modern civil society, also has no justification citing religion or tradition. In case of Muslim personal laws, Shariat adversely affects both Muslim and non Muslim women; Lily Thomas and Sarla Mudgal cases being two examples. Citing pre-marriage conversions as irrevocable, mullahs have even challenged the interference of courts in marriages of non Muslim minors.
The hesitation of the courts, however, should not deter legislature from bringing a Uniform Civil Code. Though a Uniform Civil Code will demand adaptations from all religious groups, it is true that the burden of change will fall primarily on Muslims. This is because unlike Hindu and Christian personal laws, there have been no attempts to reform Muslim personal laws in India – something many Muslim countries have already undertaken. But allowing marriage of minors, alimony waivers, or polygamy in case of one religion is nothing but racism of lower expectations. Neither should the legislature wait, expecting clerics to give up on personal laws which provide them clout and power over the laity. In a secular polity, the power to legislate should rest only in an elected legislature.
On the significance of libertarian values over personal laws, it will be instructive to read what Dr B R Ambedkar had to say. He said: “The religious conceptions in this country are so vast that they cover every aspect of life from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill”.
In the triple talaq case, the court might have been legally constrained by the existence of personal laws but Uniform Civil Code is the logical follow up to the libertarian spirit of the judgment. Let legislature take over from where the judiciary has left.