Of all the people arguing before the Supreme Court’s five-judge bench that is hearing the validity of triple talaq, former Union minister Arif Mohammad Khan is the most knowledgeable, and the one person who carries personal integrity as a reformer as well. However, the line of argument he took before the apex court on 12 May seems to be steering the bench away from constitutional principles, especially from the fundamental rights guaranteed to all citizens, including Muslim women opposing triple talaq.
So let me talk about what Khan did not argue before I discuss what he actually posited before the bench. Over the last few centuries, there has been a worldwide movement to separate religion from the State and the law. However, in his arguments, Khan was opposing the separation of religion from State, by advocating a role for religion in the Constitution.
Considering Khan had quit as Union minister after the Congress government enacted a law that quashed a Supreme Court order granting alimony to Shah Bano in 1986, his personal commitment to Muslim women’s equality cannot be questioned.
However, it remains beyond my comprehension as to how and why Khan, arguing before the constitution bench in the triple talaq hearing, shunned arguments that could go in favour of articles 14, 15(1) and article 21 of the Constitution, all of which are fundamental rights available to every citizen, especially Muslim women insofar as triple talaq cases are concerned. He also did not mention Article 44, which directs the State to enact a Uniform Civil Code and which, though not legally enforceable, still carries the moral weight of the Constitution.
Granted, that the SC’s constitution bench is examining if triple talaq is essential to religion and therefore if it can be protected by Article 25 on fundamental right to religion. But, of all the fundamental rights, Article 25 is the most inferior. It is subject to other fundamental rights via its own two sub-clauses — clause 25(1) notes that the freedom of religion is “subject to public order, morality and health”; and clause 25(2) clarifies that the right to religion does not “prevent the State from making any law” regarding the welfare of people.
So, even if triple talaq came under Article 25, it will still be necessarily subject to other fundamental rights. In the triple talaq cases, Article 25 will be subject to Article 14 on right to equality, Article 15(1) on the right to non-discrimination, and Article 21 on the right to life and dignity. Article 14 says, “The State shall not deny to any person equality before the law or the equal protection of the laws…”
Because divorce by a Muslim husband is unilateral, even if approved by the Quran, it still violates a Muslim woman’s right to equality under Article 14.
