SC verdict: Fundamental or Unconstitutional?
The Supreme Court ruling on Tuesday that delegitimised the practice of granting instant divorce by muttering the talaq thrice was welcomed as the harbinger of a new era in the movement to uplift the status of women in India. While the move was welcomed with loud applauds and cheers, it has left unanswered the debates surrounding the possibility of a Uniform Civil Code. The five panel ruling of esteemed Supreme Court judges while in favour of abolishing triple talaq, was also contradictorily in favour of the absolute protection of religious practices as a fundamental right guaranteed by the Constitution of India. While triple talaq has been brought under the scanner and removed as an arbitrary practice, the other methods of talaq that are practised under Islamic personal laws continue to persist. The Supreme Court, nonetheless, made a historic calling in declaring triple talaq as unconstitutional. Chief Justice Khehar and Justice Abdul Nazeer agreed to one side of the coin which said that, first and foremost, the absolute nature of religion is a Right guaranteed by the Constitution, and it, in its capacity is "absolute." Stressing on the importance of the fundamental right to practice religion, Justice Khehar said "It is the constitutional duty of all courts to protect, preserve and enforce all fundamental rights. It is judiciously unthinkable for any court to accept any prayer to declare as unconstitutional, for any reason or logic, what the Constitution declares as a fundamental right. Because in accepting the prayer, this court would be denying the rights expressly protected under Article 25." Triple Talaq, for them, did not infringe upon the public order, health and morality, right to equality, or the right to live with dignity—factors which were considered at the time of abolishing the practices of sati and prohibiting exploitation of devdasis. Being a practice in the purview of Muslim Personal Law, the Supreme Court cannot pass a legislation on its practice.