Individual rights vs. community rights

In a show of defiance on the contentious issue of triple talaq, the All India Muslim Personal Law Board (AIMPLB) asserted that it had the "constitutional" right to implement Muslim personal law. Speaking to the press on Sunday, AIMPLB general secretary Maulana Wali Rehmani said: "A code of conduct for talaq is being issued. With its help, the real picture of Shariat directives will be brought out on the talaq issue. If talaq is given without Shariat reasons, those involved will be socially boycotted." Coincidentally, Prime Minister Narendra argued that the practice was a menace crippling the lives of Muslim women in India. Earlier, the NDA government had urged the apex court to declare the Islamic practices of triple talaq, Nika Halala, and polygamy inconsistent with Muslim women's fundamental right to life and dignity. Earlier this year, the court said that a five-judge Constitution Bench would hear a batch of petitions challenging the Islamic practice of triple talaq. There are many cases pending before the apex court that involves the issue of individual rights versus community rights. The Sabarimala temple entry case, for example, is one such case. Late last year, the court asserted that it would decide on the right of women to enter the historic Sabarimala shrine in Kerala based on constitutional principles and not by the prevalent customary practices. The court had slammed temple authorities regarding a ban on entry of women into the temple. It asked whether such archaic traditions were more important than constitutional rights. In the triple talaq case, the court may venture along similar contours.

Both cases require the court to take difficult decisions on competing constitutional rights. Standing in the way of repealing triple talaq is the All India Muslim Personal Law Board, which argues that the rights bestowed by religion cannot be questioned in a court of law. Read the Quran, and one would not find any mention of triple talaq, argue many scholars of Islam. They claim that the Quran has laid down elaborate injunctions on divorce, and calls for reconciliation and mediation over a period of 90 days involving both sides. It is in stark contrast to the immediate and binding nature of the triple talaq. In fact, many Muslim-majority countries have rejected the practice including, Indonesia, Iran, and Tunisia. The court must dismiss the AIMPLB's contention that "personal laws cannot be challenged." Many among the Muslim community have also called for a repeal of a practice, which is inordinately cruel on women. Late last year, the Allahabad High Court called the practice of triple talaq, by which Muslim men can orally end their marriages, is "cruel" and the "most demeaning form of divorce." In fact, the Supreme Court had in 2002 rendered illegal the practice that many Muslim men employ to divorce their wives instantaneously and without their consent, merely by uttering the word talaq thrice. Unfortunately, the court's orders did not stop the practice, and many Muslim women have suffered in silence owing to ignorance of past judgments and societal pressure. It took one such victim of this arbitrary custom—Shayara Bano—to speak out and file a public interest litigation in the Supreme Court seeking a ban on the practice.