The Shayara Bano case has revived hopes for a change in the position of Muslim women. With Shayara seeking enforcement of her fundamental rights rather than a reform in the Muslim personal law, triple talaq, polygamy and other discriminatory practices are likely to be tested before the Supreme Court on the touchstone of the fundamental rights guaranteed under the Constitution.
Though the apex court has earlier considered petitions highlighting the need for a change, this personal battle —like that of Shah Bano who had invoked the criminal law for maintenance, which made no distinction on ground of religion—could pose the toughest challenge to the discriminatory practices in the Muslim personal law.
With most petitions in the past focusing on or seeking judicial intervention for reform, which often meant uniform civil code, the court had refrained from going into the realm of policy-making or stopped short of issuing binding directions by asking the government to consider feasibility of uniform civil code.
The debate this time should reach a conclusive end. It would be difficult for the Supreme Court not to give a finding on the apparent conflict between provisions like triple talaq, polygamy etc. with the right to equality, right to live with human dignity or other fundamental rights.
Shayara’s petition does not digress into the need for reform or uniform civil code but focuses on enforcement of her fundamental rights, which the court is bound to protect. She has specifically challenged the validity of a pre-Constitution law—Muslim Personal Law (Shariat) Application Act, 1937—which made triple talaq and other provisions applicable to Muslims in India.
Though under the scanner, neither the discriminatory practices nor the 1937 Act has been seriously tested for consistency with the rights under Articles 14, 15, 21 and 25 of the Constitution.
In fact, a PIL challenging the constitutional validity of triple talaq, bigamy etc. was dismissed by the Supreme Court in 1997 without considering it on merits. Dismissing the PIL by Ahmedabad Women Action Group, the court said the matter involved “issues of State policies with which the court will not ordinarily have any concern”.
The decision requires reconsideration as the court erred by not testing the practices for consistency with the fundamental rights of people. Besides, a number of subsequent judgments add strength to Shayara’s case in as much as polygamy and several other discriminatory practices may not be essential tenets of the religion protected under the Constitution. Further, the court has also taken note of the fact that such practices had been dumped by several other countries, including Pakistan and Bangladesh.
While referring to polygamy in Islam, the Supreme Court in the Khursheed Ahmad Khan case ((2015) 8 SCC 439) held that practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of the religion.
The Constitution-makers were aware of the conflict between the fundamental rights and discriminatory provisions in the personal laws of Hindus and Muslims. With some members opposing uniform civil code, K M Munshi indicated in the Constituent Assembly that it was a lost battle they were fighting as they had already voted for guaranteed fundamental rights. “They feel that the personal law of inheritance, succession etc. is really a part of their religion. If that were so, you can never give, for
instance, equality to women. But you have already passed a fundamental right to that effect and you have an article here which lays down that there should be no discrimination against sex,” Munshi said. gyanant@gmail.com
Singh is a Delhi-based lawyer