Constitution is not a mere lawyers document, it is a vehicle of Life, and its spirit is always the spirit of Age.- Dr. B.R. Ambedkar

The rapid development of the society demands secured and impregnable laws to protect the voices that are curbed for bringing virtuous and upright transformation. The radical changes in the perspectives, ideologies, and principles of people with the institution of the 69-year-old Indian Constitution must be construed in a wide and liberal manner and must be flexible to an extent where various evolving aspects can be undertaken within the legal documents purview for not only serving judiciously and coping up with novel challenges in our country but also bringing reforms for the new age of India.

Therefore, the concept of Transformative Constitutionalism has become much of importance which means the existing conflicting laws with the social revolution must be replaced with a new law to recognize the advanced standpoints either by amending the existing provision or enacting new legislation for it if required to do so. The goal is to obliterate the deeply rooted long on-going injustices in the society that have taken an institutional character that is religion.

The discrimination and pervasive nobble in terms of religion superiority in India in spite of being a secular country had led to inclusion of several Articles in the Constitution for a peaceful and harmonious co-existence of all the religion together that gave rise to the constitutional vision of equality of all and right to profess, practice and propagate their religion. Whenever there has been an attempt to bring in any transformative idea on the subjects of religion then that has been looked down upon with a very narrow outlook that often triggers religion wars and protests.

This fight of equality of all vis-a -vis right to practice religion has led to various circumstances where there have been betrayals of the transformative purpose of the Constitution and Courts. The task of upgrading the society in terms of religion perspective still remains one of the toughest endeavors. One such case is the Triple Talaq Judgement[1]that bought the movement of gender justice for Muslim women.

The Supreme Court of India declared Triple Talaq, an essential practice of the Muslims as unconstitutional in the year 2017.[2] In this case, there were 5 divorced Muslim women as the Petitioners who pleaded that the Talaq-e-Biddat (instant Talaq) was violative of their right to equality, liberty and dignity because the Muslim men instantly uttered the word Talaq in a single Tuhr (the period between two menstruations), or in a Tuhr after coitus, or thrice at one go leading to instantaneous divorce via letters, phone calls or face to face without any reasonable cause where there is no say of the wives who are later deserted and left homeless.

The Constitutional Bench consisted of 5 Judges that belonged to 5 different religions who gave three different judgments by majority 3:2 declaring the practice illegal and unconstitutional.[3] The Judges in the minority that were Chief Justice J.S. Khehar and Justice Abdul Nazeer found this practice sinful but not illegal because the Sunni Muslim accepted it as lawful and part of personal law that got protected as religious freedom under Article 25[4] of the Constitution.

The Judges accepted the views of the All India Muslim Personal Law Board (AIMPLB) that it was not within the jurisdiction of the court to state a sacred religious practice as unconstitutional. On the other hand, it should be the duty of the court to protect and enforce personal laws rather than try finding faults in it. The Supreme Court had no jurisdiction to adjudicate over Muslim Personal Law since it is inextricably interwoven with the religion of Islam, which is based on Quranic injunctions and is not a law enacted by Parliament only serves to render the proceedings contentious and add to the controversy.[5]

However, this is a very weak argument as Article 25 protects those essential practices without which the religion would lose its fundamental character, applying this in the present case, although Talaq-e-Biddat is only one form of Talaq permissible in law, it is not an essential part of the religion and therefore it does not require to satisfy the test under Article 25 (2) (b) of the Constitution. Also, the Apex court has positively intervened in several personal law matters like Shamim Ara v. State of Uttar Pradesh[6]; Mohd. Ahmad Khan v. Shah Bano Begum[7]; Danial Latifi v. Union of India[8] and imparted a fair decision.

Whereas the Judges in the majority Justices Rohinton Nariman, U.U. Lalit and Kurian gave two separate judgments. The first judgment stated that Triple Talaq is recognized and enforced under the Muslim Personal Law (Shariat) Application Act, 1937 is pre-independence legislation.

Therefore, under Article 13(1)[9] of the Constitution, it is void as it is violative of the fundamental right Article 14[10] of the Constitution because the practice is arbitrary and unreasonable in nature. The practice made the marital tie unstable and mercurial.

The second judgment stated Triple Talaq is against the basic tenets of the Holy Quran as the text allows Talaq only in extremely unavoidable circumstances.[11] Although Triple Talaq has been practiced for a long time but this cannot be the sole reason for its applicability because, in reality, it lacks legal sanctity. Hence, void.

The Narendra Modi government followed the judgment by drafting the Triple Talaq Bill that was introduced and passed in the Lok Sabha on December 2017. But the Bill failed to be passed in the Rajya Sabha. It lapsed with the dissolution of the 16th Lok Sabha.

The Modi government took the ordinance route to implement the Supreme Court order because there was an urgent need to check desertion of Muslim women due to instant triple Talaq. Therefore, the Muslim Women (Protection of Rights on Marriage) Ordinance was promulgated in September 2018 and when it lapsed without Parliament giving its approval, the government re-promulgated the ordinance in February 2019.[12] On 28th July 2019, the Lok Sabha passed the Bill with 303 votes in favor and 82 against.

The Bill states that declaration of Talaq either in written or electronic form will be void. It criminalizes the practice with a jail term of up to three years for the husband, a cognizable offense. The Magistrate may grant bail to the accused only after hearing the woman against whom Talaq has been pronounced.

The Muslim woman is entitled to seek a subsistence allowance from her husband for herself and her dependent children. She is also entitled to seek custody of her minor children that will be determined by the Magistrate.[13] The Bill also received a majority vote in favor in the Rajya Sabha where out of total votes, 99 votes were in the favor and 84 votes were against the law.[14] On 31st July, 2019 President Ram Nath Kovind gave his assent to the Bill that became a law of the country.

The Triple Talaq issue has become a battleground between culture and modernity. The Judgment given by the Supreme Court does bring a transformation in the society but these sensitive subjects are purposely made a blockade. Although the Parliament is entitled to codify personal laws of all communities to make it gender-just and fulfill the requirements of fundamental rights, questions are still raised on its legal sanctity.

Article 44[15] must be channeled from thought process to reality so that not only women but every person suffering injustice under personal laws is freed. The Law Commission indeed has a very difficult task to examine the issue that is uniformly picking up the wisest practices from all the religion without discriminating and putting it into one single code. Still, a ray of hope in every Indian citizen lightens the fact that whenever there will be injustice the Judiciary will come into action and hold justice, fairness and equity.

Twenty Muslim countries, including Pakistan, Bangladesh and Malaysia, have banned instant Triple Talaq. In some places, the practice is bailable and in others non-bailable. Why cannot secular India do the same? Dont look at the issue through a political lens. This is an issue of justice and humanity, an issue of womens rights and empowerment.
We cant abandon our Muslim sisters. - Ravi Shankar Prasad - Minister of Law & Justice19, India

End-Notes

1. Muslim Womens Quest for Equality vs. JamaitUlema-i-Hind & Ors Suo Moto Writ (C) (2015).
2. Dr. Ansari Zartab Jabeen, Indian Judiciary, and Transformative Constitutionalism, 10 ISSN (O): 2319-8338, 111 (2019).
3. The Supreme Court of India, The Constitution at 67, Prof. N. R. Madhava Menon, Uniform Civil Code, and the Quest for Gender (2017).
4. Freedom of conscience and free profession, practice and propagation of religion subject to public order, morality, and health and the other provisions of this Part.
5. Flavia Agnes, Muslim Womens Rights and Media Coverage 15 EPW 22 (2016).
6. 2002 (7) SCC 518.
7. AIR 1985 SC 945.
8. (2001) 7 SCC 740.
9. All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.
10. The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
11. Supra note 3.
12. Prakash K Dutta, What is in triple Talaq bill that makes it so contentious? IN, June 21, 2019.
13. PRS Legislative Research, The Muslim Women (Protection of Rights on Marriage) Bill, 2019, https://www.prsindia.org/billtrack/muslim-women-protection-rights-marriage-bill-2019
14. Triple Talaq bill passed by Rajya Sabha available at https://www.currentaffairtoday.com/triple-Talaq-bill-passed-by-rajya-sabha.
15. Uniform civil code for the citizens The State shall endeavor to secure for the citizens a uniform civil code throughout the the territory of India.