The last few weeks have witnesses a vigorous debate about the possibility of a Uniform Civil Code being enacted to replace the personal law systems that presently, by default, govern issues of marriage, divorce and inheritance among religious communities. It started with the government filing an affidavit in the Supreme Court on October 7 in a case about the validity of triple talaq as a means of divorce under Muslim law.

While the code remains a controversial and multi-layered issue, it seems obvious that its formulation and implementation is a task for Parliament. The question before the court at the moment, however, is a narrow one, and is limited to whether triple talaq is a legal and constitutionally valid form of divorce.

According to reports, the government stated in its affidavit that triple talaq violates gender equality and women’s dignity, and that “no undesirable practice can be elevated to the status of an essential religious practice”. The term essential religious practice appears to have been used in response to the Muslim Personal Law Board’s affidavit that, inter alia, sought protection for triple talaq under Articles 25 and 26 of the Constitution, which protect both individual religious freedom as well as the freedom of religious denominations to manage their own affairs in matters of religion.

Over the years, the Supreme Court has held that protection under Articles 25 and 26 does not extend to any and all practices that may claim the garb of religion, but only to “essential religious practices”.

Muslim law board's stand

The Muslim Personal Law Board’s attempt to take shelter under the religious freedom clauses of the Constitution is, however, misconceived. This is because, conceptually, triple talaq does not fall within the category of practices protected by Articles 25 and 26.

There are two reasons for this. The first is based in precedent. Soon after the framing of the Constitution, in a landmark judgement called Narasu Appa Mali, the Bombay High Court held that personal laws (which had not yet been codified under a statute) were not to be tested on the touchstone of Part III of the Constitution. This proposition was affirmed by the Supreme Court in Krishna Singh versus Mathura Ahir. In other words, according to the Supreme Court, religious commandments dealing with issues such as marriage and divorce could not be challenged for constitutional violations (until and unless they were codified in secular legislation).

Now, Article 25 of the Constitution states that “subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”. If personal laws fell within the scope of Article 25, therefore, they would be “subject to other provisions of [Part III]”. At the same time, as per Narasu Appa Mali and Krishna Singh, personal laws are exempt from Part III scrutiny.

In its counter-affidavit, therefore, the Muslim Personal Law Board rested its case on two legal prongs that are contradictory. It cannot say that personal laws are exempt from Part III scrutiny, and simultaneously argue that they are protected by Articles 25 and 26.

The proposition that personal laws do not fall within the scope of Articles 25 and 26 is further buttressed by debates during the framing of the religious freedom clauses. As BR Ambedkar famously argued, “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”

The law of marriage, like the law of succession, belongs in the domain of personal law (that is, the law based on the personal status of the parties) – which, as Ambedkar pointed out, was never meant to be protected by Articles 25 and 26.

This, along with Narasu Appa Mali and Krishna Singh, makes it clear that the issue of whether triple talaq is an essential religious practice under Islam is irrelevant to the present enquiry, and the court should refrain from going into a question that will, yet again, make it the arbiter of religious doctrine (note, in particular, that the Centre’s affidavit seems to argue that any religious practice that runs counter to constitutional principles cannot, by that reason, be called an essential religious practice. This is an interesting legal fiction to press before the court – and the court is no stranger to adopting such legal fictions – but it remains a highly problematic one.)

The way ahead

There are, of course, other avenues open to the Supreme Court. While issuing a notice in the present case, it called triple talaq a “customary” practice. In Madhu Kishwar versus State of Bihar, the Supreme Court held that customary laws would be subject to Part III (while personal laws remained exempt). However, the distinction is superficial at best. And furthermore, if, as in Narasu Appa Mali, bigamy under Muslim traditions was held to fall within the domain of personal law, then it is unclear how triple talaq would not fall within personal law.

Another option would be to import the essential religious practices test from Article 25 into the domain of personal law, on the basis that personal law, like claims under Article 25, pertains to religion. This, however, would be a somewhat odd innovation 63 years after Narasu Appa Mali, especially in light of the fact that the Bombay High Court, in that case, applied the essential practices test specifically while adjudicating under Articles 25 and 26, and refrained from applying it in holding that personal laws were not subject to Part III.

Consequently, it would appear that, under existing constitutional jurisprudence, a two-judge bench of the Supreme Court, being bound by Krishna Singh, cannot invalidate triple talaq. Of course, that is not dispositive of the issue. The judgement in Narasu Appa Mali was controversial, and there are strong legal and constitutional arguments against its reasoning. Anirudh Krishnan, for instance, persuasively argues that Narasu was incorrectly decided. Perhaps, then, in 2016, it is time a Supreme Court bench of three judges reviewed Narasu and Krishna Singh, and overruled them as incorrectly decided.