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Is the Constitution supreme?

Is the Constitution supreme?
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Till yesterday Ishrat Jahan a young mother of four whose husband divorced her on the phone was a nobody. Today, she is hogging media TRP ratings,...

Till yesterday Ishrat Jahan a young mother of four whose husband divorced her on the phone was a nobody. Today, she is hogging media TRP ratings, thanks to moving the Supreme Court on the grounds that divorce through spoken words violates her fundamental rights and wants abolition of the draconian triple talaq.

The NDA government stand is clear. It opposes triple talaq as it is against gender justice, equality and dignity of women. It cites the case of 22 Islamic countries, including Syria, Iran, Tunisia, Morocco, Saudi Arabia and Pakistan which have banned this, codified and reformed the Muslim Personal Law to check its abuse.


AIMPLB needs to recognise that the law of the land only applies when a victim complains of victimisation and seeks redress under the Indian Penal Code. The State is neither anti-God nor pro-God. It does not differentiate by sex, and is expected to treat all religions and men and women alike, be it the devout, agnostic and the atheist. It only ensures that no one is discriminated against on religious grounds


The All-India Muslim Personal Law Board accuses the government of waging a “war” against the community and has told the Supreme Court that it “cannot decide nor interfere in religious freedom and rewrite personal laws in the name of social reform. Triple talaq is permissible in Islam as the husband is in a better position to take a decision.”

Can a victim be victimised by her husband for no fault of hers? Is there no appeal against this monstrous and arbitrary dissolution of marriage? Can a fatwa overturn marriage sanctity? Does it not tantamount to violation of human rights? What about Ishrat’s feelings? Should she be denied her marital rights?

Can the Shariat law annul her marriage and the clergy trample on individual rights? Importantly, does the Muslim Personal Law take precedence over the Constitution? Is it not time we have a common law for all citizens – a Common Civil Code?

Tragically, even as the Supreme Court grapples with the legal issues, trust our polity to use Ishrat’s case to play vote-bank politics and score petty points against rivals. Instead, address the larger issue of whether we should allow minorities to abide by their personal laws or adopt a uniform civil code.

While the BJP crows over Ishrat’s case to underscore its persistent demand for a common civil code, the Congress walks a tight rope. “The Constitution and the law of the land are capable of taking care of all such issues,” it espouses. The Left uses Ishrat as a symbol of human rights violation and ‘Mian’ Mulayam concurs with the wisdom of his constituents and defends the fatwa as a “well thought out decision.”

True, the ongoing petition couldn’t have come at a more opportune time as since Modi’s ascendency to India’s Raj gaddi the BJP has been busy chanting Sarva Dharam Sambhava. Whereby Ram, Allah and Jesus need to take a back seat and priests, mullahs and cardinals should help knit India’s diverse social fabric into one nation. The Congress is caught in a cleft stick.

Aware of the fallout of its ‘Shah Bano politics,’ is keen to avoid falling between two stools. While many oppose triple talaq and state every religion, should be open to reforms they are conscious of the religious and political dimensions attached, given that UP and four States go to polls early next year. This makes it tricky for the Party to take an explicit stand on the matter.

Consequently, it has to be sensitive to the Muslim community’s reflexes on the issue. While some leaders make a distinction between clergy-dictated views and feelings of ordinary Muslims, especially women, others want the Party to reinforce its projection as the ‘premier liberal, democratic national Party, as the Constitution was framed by its leaders to keep the country’s secular fabric intact.

What next? All eyes are affixed on the Apex Court. Will it lead by example and unshackle the 21 Century Muslim woman trapped in archaic medivial personal laws? Will it again suggest implementation of the Common Civil Code, and emphasise Babasaheb Ambedkar’s advocacy of an optional common civil code?

Recall, the Supreme Court has unsuccessfully tried three times earlier to unshackle Muslim women from this draconian talaq edict. In 1985, a five-member Constitution Bench of the Supreme Court had overruled the Muslim Personal Law in the famous Shah Bano case. The Court allowed the divorced Muslim woman maintenance from her husband.

Rueing the fact that “Article 44 has remained a dead letter, the Court went on to argue in their decision that “a common civil code will help the cause of national integration by removing disparate loyalties in laws which have conflicting ideologies.” The Article provides: “the State shall endeavor to secure for the citizens a uniform civil code throughout the territory of India”.

Predictably, the Muslim clergy opposed the judgment. The then Congress Prime Minister Rajiv Gandhi decided to curry favour with the Muslims and got Parliament to pass a new legislation, the Muslim Women (Protection of Rights on Divorce) Act. This reinforced denial by the Muslim Personal Law of any maintenance to divorced women.

The Supreme Court again resurrected the campaign for a Common Civil Code in 2003. Regretting the State’s inaction and faulting those opposing the demand in the name of religious freedom, a three-judge Bench of the Apex court lamented that “Parliament is still to step in” for framing a uniform civil code.

Significantly, one fails to understand why the Common Civil Code is viewed by some as anti-minority. Article 44 was given to us by Nehru, Maulana Azad and Sardar Patel, not by Modi, Shah and the RSS. Does this make them communal, even Hindu fundamentalists? Even educated and liberal Muslims have surprisingly chosen to remain silent on the subject.

Clearly, the minorities need to realise that there is no connection between religious and personal law. By deliberately distorting religion to suit their narrow personal and political ends, the country is vitiated thereby threatening its unity, integrity and solidarity.

The AIMPLB needs to recognise that the Constitution is supreme and only comes into the picture when someone moves court seeking justice. The law of the land only applies when a victim complains of victimisation and seeks redress under the Indian Penal Code.

Where do we go from here? It all depends on whether our Muslim brethren are willing to acknowledge that there is no mysticism in the secular character of the State. The State is neither anti-God nor pro-God. It does not differentiate by sex.

And is expected to treat all religions and men and women alike, be it the devout, agnostic and the atheist. It only ensures that no one is discriminated against on religious grounds. It remains to be seen whether the Court will be successful this time in getting rid of its excess baggage of isms. India and its secularism deserve a voluntary common civil code for gradual acceptance without further delay. The Ishrat issue is a test case.

Simultaneously, our minorities need to decide whether to be liberal and progressive or remain obscurantist and backward. Ultimately, no one community should be allowed the veto or block progressive legislation. Or decide, dictate or ruin an individual’s life.

From successfully granting Shah Bano her alimony in 1985 to now deciding whether to heed Ishrat’s pleas, all eyes are affixed on the Court. It can take the example of Goa which has had a common civil code for long. Will it unshackle minority women and lay the foundations for a truly secular India where the Constitution is supreme?

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