New Delhi: A prominent Muslim body on Tuesday vehemently opposed the scrutiny of the practice of triple talaq, ‘nikah halala’ and polygamy by the Supreme Court, saying it would amount to “judicial legislation” and personal laws cannot be challenged on the ground that they violate fundamental rights.
All India Muslim Personal Law Board (AIMPLB), in a fresh affidavit, rubbished the stand taken by the Narendra Modi government that the apex court should re-look these practices as they are violative of fundamental rights like gender equality and the ethos of secularism, a key part of the basic structure of the Constitution. Stoutly defending the prevalent practice in the community, AIMPLB Secretary Mohammed Fazlurrahim said “if this court proceeds to examine questions of Muslim personal laws and lays down special rules for Muslim women in matters concerning marriage, divorce and maintenance, it would amount to judicial legislation and will be violative of doctrine of separation of powers.” AIMPLB has listed out grounds for its opposition to the judicial scrutiny of the practices.
The questions raised in the petition are matters of “legislative policy” and, moreover, personal laws cannot be challenged as being violative of fundamental rights like right to equality under the Constitution, the affidavit said.
It also said the personal laws of Muslims cannot be “re-written in the name of social reform” and these practices are protected under Article 25, 26 and 29 (freedom to practice religion) of the Constitution.
Opposing the Law Commission’s fresh endeavour on Uniform Civil Code, the body said it pertained to the Directive Principles of State Policy of the Constitution and hence “not enforceable”.
Highlighting importance of religious scriptures, AIMPLB said the courts “cannot supplant its own interpretations over the text of scriptures” in a situation where “unique importance” has been attached to such texts. The Government, for the first time, has opposed the practice and said, “the issue of validity of triple talaq, nikah halala and polygamy needs to be considered in the light of principles of gender justice and the overriding principle of non- discrimination, dignity and equality.”
AIMPLB referred to a 2002 judgement in which the apex court had dealt with the issue of talaq and placed “explicit measures to check” the practice by laying down the test of “reasonable cause” and “prior reconciliation”. Opposing the reopening of the issues, the 69-page affidavit said there were adequate remedies available to Muslim women under the Code of Criminal Procedure, the Protection of Women from Domestic Violence Act and the Muslim Women (Protection of rights on Divorce) Act.
It maintained that Muslim personal law provided for the practices to be followed on the issues of “marriage, divorce and maintenance” and were based on “holy scriptures – Al Quran and sources based on Al Quran”. It elaborated on the aspect that personal laws cannot be challenged on the ground that they are violative of fundamental rights under the Constitution. “Personal laws do not derive their validity on the ground that they have been passed or made by a legislature or other competent authority. The foundational sources of personal law are their respective scriptural texts. “The Mohammedan Law is founded essentially on the Holy Quran and sources based on the Holy Quran and thus it cannot fall within the purview of the expression ‘laws in force’ as mentioned in Article 13 of the Constitution of India, and hence its validity cannot be tested on a challenge based on Part III (which deals with fundamental rights) of the Constitution,” the affidavit said.
Personal laws cannot be re-written in the name of social reform, it said, adding, “the institution of marriage is differently looked upon by different religions, and consequently the issues of marriage, divorce and maintenance are dealt with in different manners by different religions. “While one community might be prepared to accept and work social reform, another community may not be prepared for it.” “In any event, even while bringing in such a social reform, it is not permissible to change the entire practice or acts done in pursuance of such religion,” it said. “It is submitted that the issue of Muslim Personal Law is a cultural issue which is inextricably interwoven with religion of Islam. Thus, it is the issue of freedom of conscience and free profession, practice and propagation of religion guaranteed under Article 25 and 26 read with Article 29 of the Constitution,” the affidavit said.