Feyman Lectures on Physics

Oct 14, 2016

Triple Talaq

An article on Triple Talaq of Muslim Personal Law which argues that Personal Laws be taken off from the ambit of article 25, 26 of the Indian constitution keeping them however, in the scope of Part III of the constitution: Triple-Talaq

This is according to the writer is a correct approach which corrects the earlier errors on this score. Even if we agree that this is a correct secular constitutional approach, it is doubtful that it will be acceptable to Muslim Law Board and other Muslim organization.

SC can also take alternative approach in which it boldly asserts that Indian secular constitution overrides the so called essential religious doctrines or practices if they go against the "general" fundamental rights of Part III guaranteed by the constitution and enshrined in the preamble. As such even if a particular practice is deemed to be an "essential" practice of a particular religion, SC has the right to decide whether it is in line with the spirit of the constitution. That is to say, whether it survives on the basis of "general" principles of Justice, Equality, Liberty, and Fraternity. The constitution has allowed the amendments to Hindu and Christian Laws overriding the basic hierarchical structure of Manusmriti and discriminatory laws against the Shudras and women. The same process should be applicable to Indian Islam.

Again... Will this straight forward approach be acceptable to so called Islamic scholars and Muslim Law bodies. No.. for most of them. So what is the solution?

Some of the Islamic scholars and NGOs are arguing that Islam is egalitarian and it has no quarrel with the preamble principles like (gender) equality, justice, liberty etc. They claim (IMO rightly) that Quran does not sanction Triple Talaq (TT). TT is an extrapolation of Hadith and other traditions with a very recent fixation in British India. So TT is not essential practice of Islam and essential Islam is perfectly in tune with Indian constitution. Abolition or modification of TT do not violate freedom of religion. This too isnot acceptable to AIMPLB. I mean, they agree that Islam is great and TT is bad and yet for them TT is an essential part of Islam and hence comes under the purview of Articles 25 and 26. However, here SC and present GOI see a window of opportunity. With the help of these scholars, NGOs, as also with the support of affected women, and liberal Muslims and Hindus they hope to abolish-amend the one-sitting TT and declare it unconstitutional.

Whatever method GOI and SC adopt to abolish or amend TT, they need support of the all right-minded people to implement gender justice. Abolition-amendment of TT is but one step towards uniform (but not "homogeneous) civil code as asked by the article 44 of the constitution. In the process GOI will have to respect the sensibilities of all groups insofar they do not violate "general" principles of justice, equality, and freedom and impinge on the ambit defined by such principles in respect of groups - particularly smaller groups - other than their own.