Apex court should have addressed issue of personal laws being ‘laws in force’: Expert

The decision would provide relief not only to the women who approached the court, but to millions of others, who have been living under the constant fear of the enormity of the instant triple divorce

Published: 23rd August 2017 08:26 AM  |   Last Updated: 23rd August 2017 08:26 AM   |  A+A-

Muslim women celebrate the apex court’s verdict in the city on Tuesday | Express

Express News Service

The Supreme Court of India emerged as the emancipator for Muslim women when in a historic judgment it held instant triple divorce as unconstitutional. This certainly is a great leap in the protection of the rights of women. The gender justice movement has been strengthened and furthered by this welcome judgment.

The decision would provide relief not only to the women who approached the court, but to millions of others, who have been living under the constant fear of the enormity of the instant triple divorce. The decision of the court is a reiteration of its decision in Shamim Ara vs State of Uttar Pradesh (2001), where the court effectively made instant triple divorce void and illegal if reasons are not stated for the talaq. It also held in that case that prescribed gap of time between pronouncements is one of the essential requirements of valid talaq.

The apex court was confronted with two basic issues in the batch of petitions challenging the constitutional validity of the instant triple divorce — whether this form of divorce is an essential part of Islam to get protection under religious freedom enshrined under Article 25 of the Constitution and whether ‘personal laws’ are laws within the meaning of the word ‘all the laws in force’ under Article 13(1) of the Constitution.

Article 13(1) provides that ‘All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.’ Here the words ‘this part’ mean the fundamental rights chapter. The article makes every pre-constitutional law to be void if it violates any of the fundamental rights. But for this declaration of inconsistency, constitutional courts are to be approached.

The first issue was dealt in Shayara Bano vs Union of Inda; the majority judgment says that instant triple divorce cannot get the protection of Article 25 as it is not the essential part of Islam and hence in violation of the fundamental right to equality and right to life.

The second issue of personal laws being ‘laws in force’ under Article 13(1) was not addressed by the honourable Supreme Court. In my opinion, the court should have addressed this issue once for all. We still do not have any authoritative judgment from the highest court of law. Frequently, the Bombay High Court decision in the State Of Bombay vs Narasu Appa Mali delivered on 24 July, 1951, is referred to hold that personal laws are not laws with the meaning of part III of the Constitution, which talks about fundamental rights and as per the provisions of Article 13(1) any pre-constitutional law in contravention of fundamental rights will be declared null and void through the power of judicial review by the higher judiciary.

If the Supreme Court would have gone to hold that personal laws are ‘laws in force’ under Article 13(1), the problem of discrimination, arbitrariness and gender bias prevalent in all personal laws irrespective of religious communities/denominations, would have been solved. Now the question remains, why honourable Supreme Court did not delve deeper into this issue. I think the court has to deal with this issue. There is no other way out. Putting this question in abeyance is in nobody’s interest.

Holding all personal laws as ‘laws in force’ within the constitutional scheme of things is sine quo non. This will cure all personal laws of their patent discriminations. And according to me, this can be the first stage for the enactment of the Uniform Civil Code mandated by Article 44. Let personal laws first be made to get rid of every inequality, discrimination and bias. Checking them on the anvil of constitutional provisions especially fundamental rights is must.

While continuing this process of cleansing personal laws, efforts must be made to come out with a draft of laws uniformly applicable on all religious communities. These laws should be religion-neutral, non-discriminatory and easy to use. Elaborate procedures and lengthy and cumbersome legal provisions must be avoided. There is a need to simplify the law. Every attempt should be made to take into confidence all the religious communities and for this the Central government has to come up with the draft proposal.

Piecemeal approach is the safest route to the enactment of the Uniform Civil Code. I am of the firm view that the long-term solution to the problems of gender injustice is the Uniform Civil Code but any hasty attempt will backfire. So, taking into confidence various communities and creation of social awareness against the evils afflicting the society will give rise to an appropriate socio-legal ecosystem, where rights of all are respected and none is harassed just because personal laws say so.
(The author is head of the Department of Law, Unity Law & Degree College, Lucknow. Email: abdulhafizgandhi@gmail.com)

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