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SC verdict: Fundamental or Unconstitutional?

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.

Justices Nariman and Lalit provided another perspective stating that triple talaq being distanced from any practice at reconciliation prior to estrangement cannot be seen as a constitutional practice. They said it is against the Right to Equality because it subscribes to a necessary right to arbitrariness. Further, they added that triple talaq is not listed as an "essential" act within the practice of Islam and hence cannot be protected under Article 25 that guarantees the freedom of religion. Their primary emphasis lay on the arbitrariness of the practice where the husband provides no explanation and is allowed to desert his lawful wife on a simple utterance of three words without facing any remorse or penance. Countering the CJI on the premise that the Supreme Court cannot pass a verdict on cases of legislation which ought to be dealt by the Parliament, Justice Nariman said that when a plea is received at the Court under Article 32 of violation of fundamental rights then the court cannot brush aside the issue enlisting it as the responsibility of the Parliament. With Justice Khehar and Nazeer on one side of the boat, and Justices Nariman and Lalit on the other, Justice Joseph provided the required meeting point, by aligning with the CJI in the belief that the protection of religion is absolute in the Constitution, but by also stating that triple talaq is nonetheless unconstitutional because of its arbitrary nature that does not attempt to engage in dialogue or reach a point of reconciliation. While ruling against the inherently unjust nature of triple talaq, Justice Joseph upheld that laws should not undermine or infringe upon the freedom of religion as prescribed by the Constitution of India. "Article 25(2) permitted the State to make laws regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice; and, providing for social welfare and reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the CJI," Justice Joseph added.
The panel of five judges all belonging to different faiths provided essentially two verdicts, both ruling in a majority of 3:2. The first read triple talaq as essentially unconstitutional, scrapping its validity in the face of law; the second recognised the nature of freedom of religion as absolute with the guarantee of protection under the Constitution of India. Chief Justice Khehar and Justice Nazeer both emphasised that reforming personal laws was completely within the domain of the government and not the judiciary. Citing the examples of abolishing sati, polygamy and prohibiting exploitation of devdasis, they said that all these changes had been brought about by enacting laws, not by a Court statement. Islamic countries across the world too, have adopted similar steps, they said. The Centre, however, does not seem to be willing to pass a law against the practice. Top government officials have mentioned that the Supreme Court verdict is enough to put an end to this practice. The Centre had already issued a notification to all States and Union Territories within the country to prohibit the practice of instant talaq by monitoring the situation to ensure compliance with the Supreme Court order. All cases of deviance will be booked under instances of domestic violence until a separate law is passed by the Parliament. In recent times, the practice of triple talaq had taken on the most arbitrary face with spouses sending messages of divorce via email, text message, speed post and even WhatsApp. The one-sided applicability of this practice, where the man can instantly divorce the woman but not vice-versa had further subjugated the position of women at the hands of their supposed better-halves.
The entire country, led by Prime Minister Narendra Modi celebrated this move as a moment of rejoicing the upliftment of women from the shackles of primitive tradition. While memorable in its capacity, this ruling is only a small step taken towards a much larger global movement for equal rights for women. In cases of inheritance, alimony, property rights, women still continue to be largely discriminated, within the purview of law. The Supreme Court repeatedly stating that religion is absolute has several consequences. On one hand, given the complex diversity of our country, it is essential to protect minority sentiments and their nuances of practising religion, yet it is a daunting task to be able to separate the fight for equality of gender from the fight for equality of religion. These are often intersecting ideas with one's ideals impinging upon the fulfilment of the other. Most societies continue to be critical of women when it comes to practices of inheritance and property. While this doesn't lead to instant outrage, it has become an accepted endemic, where inequality is the law. Instead of playing the same old blame game, our parliamentarians would do well to battle over ideas that could give shape to an acceptable Uniform Civil Code where inequality is not deemed acceptable under the purview of the fundamental right to anything. The battle against religious hegemony has just begun. While this ruling promises a better day tomorrow a lot more must be done to ensure more days of sunshine.

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