After seventy years of pussy footing on an issue that militates against the core values of our Constitution, the Union government has made a series of unambiguous assertions in its affidavit before the Supreme Court in the Shayara Bano case, which will go a long way in strengthening our secular, democratic traditions.
The main prayer in this case by a divorced Muslim woman is that the fundamental rights guaranteed to every citizen by the Constitution must prevail over personal laws and that religious practices cannot override constitutional provisions. It is heartening to see that the government has wholeheartedly backed this prayer and said that constitutional provisions ought to supersede everything else. Never before has the Union government expressed itself in such a forthright manner on this issue.
Not only has it opposed triple talaq, but it has said that gender equality is “non-negotiable”. Muslim personal law in India permits the practice of talaq- e-bidat or talaq-e-badai, which includes a Muslim man divorcing his wife by pronouncing more than one talaq in a single tuhr (the period between two menstruations) or pronouncing an irrevocable instantaneous divorce at one go.
The petitioner has told the court that Talaq-e-bidat (unilateral triple talaq) “which practically treats women like chattel is neither harmonious with the modern principles of human rights and gender equality, nor is it an integral part of the Islamic faith”. She said Muslim women had been given talaq over Skype, Facebook or even text messages and there was no protection against such arbitrary divorces.
But, there is something even more repugnant than this and that is called Nikah Halala. As per this tenet or practice, should a Muslim husband pronounce talaq in a fit of anger or under the influence of an intoxicant and later repent, he cannot take back his wife and restore the marriage.
The woman will have to undergo Nikah Halala (meaning marriage to another man) and then secure a divorce from that man. Only then can the woman re -mar ry her forme r husband. Shayara Bano has challenged these practices and appealed to the court to declare the Muslim Personal Law (Shariat) Application Act, 1937 as unconstitutional in so far as it validates talaq-e-bidat, nikah halala and polygamy. She has argued that it violates her fundamental rights enshrined in Articles 14, 15, 21 and 25 of the Constitution.
The Narendra Modi government’s views in this matter are quite in contrast to the Rajiv Gandhi government’s response to the issue of safeguarding the fundamental rights of Muslim women. Buckling under pressure of the Muslim clergy, that government overturned a progressive judgement of the Supreme Court in the Shah Bano Case which declared that a divorced Muslim woman was entitled to maintenance under the country’s secular law.
Rajiv Gandhi even brought in legislation in Parliament to upturn the apex court’s verdict and to virtually uphold the primacy of Muslim Personal Law over fundamental rights guaranteed under the Constitution. This was nothing but petty pursuit of a Muslim vote bank at the altar of our constitutional well-being. The Modi government affidavit however seeks to correct this monstrous folly and restore the primacy of the Constitution over everything else.
The present case rises following the divorce of Shayara Bano by her husband via triple talaq a year ago. Shayara Bano has since moved the Supreme Court and the petitions of several Muslim women’s groups and scholars have been clubbed with this petition. The petitioner has appealed to the court to declare the Muslim Personal Law (Shariat) Application Act, 1937 as unconstitutional in so far as it validates talaq-e-bidat, nikah halala and polygamy. She has argued that it violates her fundamental rights enshrined in Articles 14, 15, 21 and 25 of the Constitution. The court asked the union government to respond to the petitioner’s plea. Shayara Bano has cited several judgements of the Supreme Court to back her petition. She has said that in Sarla Mudgal’s case, the court has observed that bigamous marriage has been made punishable amongst Christians by the Christian Marriage Act, 1872; amongst Parsis by the Parsi Marriage and Divorce Act, 1936; and amongst Hindus, Buddhists, Sikhs and Jains by the Hindu Marriage Act, 1955.
However, the Dissolution of Muslim Marriages Act, 1939 does not protect Muslim women from bigamy. Which means that all women except Muslim women are legally protected from the ill-effects of bigamous marriages. The Union government’s affidavit states that “gender equality and the dignity of women are non-negotiable, over-arching constitutional values” and raises the question as to whether “in a secular democracy, religion can be a reason to deny equal status and dignity, available to women under the Constitution of India”. Secondly, whether women who profess a certain religion, can be relegated to a status which is significantly more vulnerable than their counterparts who profess any other faith.
Next, the government has said that the underlying idea behind the preservation of personal laws is the preservation of plurality and diversity among the people. But, can this be a pretext for denying to women the status and gender equality they are entitled to under the Constitution, as citizens of India. “gender justice is a constitutional goal of overwhelming importance and magnitude”.
If this is not accomplished, half the country’s citizenry will be unable to enjoy to the fullest, the rights available under the Constitution. Unlike the humming and hawing that one saw in the past, the Central government has now come out forcefully in defence of the fundamental rights of all its citizens. The bottom line is that the Constitution is supreme. There can be no text above it! So, it is now over to the Supreme Court.
A SURYA PRAKASH The author is the Chairperson of Prasar Bharati Email: suryamedia@gmail.coms