The Triple Talaq Argument: Fundamental Rights And Religious Obligations

The religious orthodoxy versus gender justice debate is not new. The debate has been ignited in the past from time to time challenging the sanctity of personal laws. The Muslim Personal Law Application Act, 1937, allows Indian Muslims to be governed by the Shariat (Islamic laws) based on Quran and Hadith (utterances of the Prophet) in matters of personal law.

It is the Shayara Bano case that once again has ignited the debate. Shayara is a resident of Kashipur in Uttarakhand who was given an instantaneous triple talaq by her husband. She then approached the Supreme Court and filed a petition against practices of talaq-e-bidat (instantaneous triple talaq), nikah halala and polygamy.

There are many progressive Muslim groups along with some secular bodies which demand to reform the unjust personal laws of the Muslim community. However, the All India Muslim Personal Law Board (AIMPLB) opposes any interference by the Supreme Court in matters of religious and cultural rights.

The right to equality is being denied to Muslim women merely by virtue of gender and religion. Shayara challenges talaq-e-bidat citing the fundamental rights guaranteed by the Indian constitution. Her petition invokes article 14, 15, 21, and 25 that deal with the right to equality before the law, protection against discrimination on grounds of sex or religion, protection of life and personal liberty, and freedom of religion respectively.

PM Modi, or his government, was actually very reluctant to intervene in the case earlier. In March this year, the Supreme Court asked the centre to publicize the Pam Rajput committee report in which it has sought a ban on gender discriminatory practices propagated by personal laws.

Nevertheless, personal laws are meant to preserve the plurality and diversity of the country, it cannot deny anyone their fundamental rights guaranteed by the Constitution. Muslim personal law, undoubtedly, need to be reformed. But before attempting that, the government should consult the Muslims and take their opinion into consideration. While there should be no compromise on equality of any kind, some of their fruitful thoughts can be helpful. Also, that will be a democratic approach towards handling this issue.

The pursuit of reform has so far been (mis)guided by the electoral politics. The irresponsible opposition will rake up this issue in the polls and link it with "communal politics" of BJP. I used the term "irresponsible opposition" because today when they don't find anything of substance against the government, they indulge in cheap politics. The government need to move very carefully and cautiously.

Also Read : The Triple Talaq Bill: A Final Step To Settle Gender Justice Debate Among Muslims

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