For the first time in India’s constitutional history, the Centre today opposed in the Supreme Court the practice of triple talaq, ‘nikah halala’ and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.
The Ministry of Law and Justice, in its affidavit, referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.
“It is submitted that the issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non-discrimination, dignity and equality,” the affidavit filed by Mukulita Vijayawargiya, Additional Secretary in the Ministry, said.
Responding to a batch of petitions including the one filed by Shayaro Bano challenging the validity of such practices among Muslims, the Centre first dealt with the right of gender equality under the Constitution.
“The fundamental question for determination by this court is whether, in a secular democracy, religion can be a reason to deny equal status and dignity available to women under the Constitution of India,” it said.
Referring to constitutional principles, it said that “any practice by which women are left ‘socially, financially or emotionally vulnerable’ or subject to the whims and caprice of men-folk is incompatible with the letter and spirit of Article 14 and 15 (Right to Equality) of the Constitution”.
Linking the issue with the Right to Life and Personal Liberty, the Centre in its 29-page affidavit said “gender equality and the dignity of the women are non-negotiable, overarching constitutional value and can brook no compromise.
“These Rights are necessary in letter and in spirit not only to realise the aspirations of every individual woman who is an equal citizen of this country but also for the larger well-being of the society and progress of the nation, one half of which is made up by women”.
The Centre’s affidavit said women must be made equal participants in the development and advancement of the world’s largest democracy and any practice, which denuded their status as citizens due to religion, is an “impediment” in achieving the larger goal.
It also referred to various apex court judgments to buttress the point that fundemental rights like Right to Equality and life with dignity formed part of the basic structure of the Constitution and hence were non-negotiable.
The Centre also said that the nation, being a founding member of the United Nations, was committed to international covenants and the UN Charter which spoke about equal rights for men and women.
The affidavit extensively dealt with the issue of personal laws in relation to fundemental rights.
“Personal law must be examined in the light of overarching goal of gender justice of women… The question arises as to whether the preservation of such diverse identities can be a pretext for denying to women the status and gender equality they are entitled to under the Constitution as citizens of India,” it said.
It also sought reconsideration of a 1952 Bombay high court judgment which had said that customs of polygamy, prevalent in some parts of Maharashtra, cannot be held to be unconstitutional.
The affidavit also said that personal law is a “law” within the meaning of the Constitution and “any such law which is inconsistent with fundamental rights is void”.
Referring to the recent affidavit filed by All India Muslim Personal Law Board (AIMPLB) in the instant case, the Centre said the practices of triple talaq, nikah halala and polygamy cannot be regarded as an essential part of the religion and hence not entitled to protection under Article 25 (Freedom to practice religion) of the Constitution.
“It is significant to note that in the counter affidavit … filed by AIMPLB, the practices of triple talaq and polygamy are referred to as ‘undesirable’. It is submitted that no ‘undesirable’ practice can be elevated to the status of an ‘essential religious practice’, much less one that forms the substratum of religion,” the affidavit said.
Dealing in detail with the idea of secularism, the government said that in a secular democracy, the state has no religion, which moreover has already been held to be the basic structure of the Constitution.
“It is submitted that secularism being a hallmark of Indian democracy, no part of its citizenary ought to be denied access to fundamental rights, much less can any section of a secular society be worse off than its counterparts in theocratic countries, many of which have undergone reforms,” it said.
The Ministry of Law and Justice has also provided a list of Islamic countries including Pakistan, Bangladesh, Turkey and Afganistan and the changes made there in marital law.
“It is noteworthy that even theocratic states have undergone reform in this area of law and therefore in a secular republic like India, there is no reason to deny women the rights available under the Constitution.
“The fact that Muslim countries where Islam is the state religion have undergone extensive reform goes to establish that the practice in question cannot be regarded as integral to the practice of Islam or essential religious ractices,” the affidavit said.
The Centre, however, made it clear that it may file a more detailed affidavit if required.