Supreme Court must send out hope to Muslim women on the issue of triple talaq. If the women are turned down at the door of the constitutional bench, it would cause a long-term threat to India's flourishing democracy

Of all the people arguing before the Supreme Court's five-judge constitution bench that is hearing the validity of triple talaq, former Union minister Arif Mohammad Khan is the most knowledgeable, and the one person who carries personal integrity as a reformer as well. However, the line of argument he took before the apex court on 12 May seems to be steering the constitution bench away from constitutional principles, especially from the fundamental rights guaranteed to all citizens, including Muslim women opposing triple talaq.

So let me talk about what Khan did not argue before I discuss what he actually posited before the bench. Over the last few centuries, there has been a worldwide movement to separate religion from the State and the law. However, in his arguments, Khan was opposing the separation of religion from State, by advocating a role for religion in the Constitution.

Considering Khan had quit as Union minister after the Congress government enacted a law that quashed a Supreme Court order granting alimony to Shah Bano in 1986, his personal commitment to Muslim women's equality cannot be questioned.

However, it remains beyond my comprehension as to how and why Khan, arguing before the constitution bench in the triple talaq hearing, shunned arguments that could go in favour of articles 14, 15(1) and article 21 of the Constitution, all of which are fundamental rights available to every citizen, especially Muslim women insofar as triple talaq cases are concerned. He also did not mention Article 44, which directs the State to enact a Uniform Civil Code and which, though not legally enforceable, still carries the moral weight of the Constitution.

Granted, that the SC's constitution bench is examining if triple talaq is essential to religion and therefore if it can be protected by Article 25 on fundamental right to religion. But, of all the fundamental rights, Article 25 is the most inferior. It is subject to other fundamental rights via its own two sub-clauses — clause 25(1) notes that the freedom of religion is "subject to public order, morality and health"; and clause 25(2) clarifies that the right to religion does not "prevent the State from making any law" regarding the welfare of people.

So, even if triple talaq came under Article 25, it will still be necessarily subject to other fundamental rights. In the triple talaq cases, Article 25 will be subject to Article 14 on right to equality, Article 15(1) on the right to non-discrimination, and Article 21 on the right to life and dignity. Article 14 says, "The State shall not deny to any person equality before the law or the equal protection of the laws..."

Because divorce by a Muslim husband is unilateral, even if approved by the Quran, it still violates a Muslim woman's right to equality under Article 14.

Article 15(1) states: "The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them."

A Muslim woman's fundamental right to non-discrimination on the basis of sex under Article 15(1) is violated because the Muslim husband can divorce unilaterally, whether through single or triple talaq, and even if it is carried out through Quranic procedure. The violation of this fundamental right cannot be accepted.

Article 21 says, "No person shall be deprived of his life or personal liberty, except according to procedure established by law." The right to personal liberty under this right also includes human dignity, a key reason Muslim women have approached the Supreme Court against triple talaq.

Let's assume for a moment that triple talaq is essential to the practice of religion. But Article 25, being the weakest among all fundamental rights, will still be subject to articles 14, 15(1) and 21. It must be stressed that a Muslim husband's right to a life of dignity available under Article 21 and to obtain a divorce with dignity is also violated, because he is not permitted to go to a court to seek divorce.

The most unfortunate point is that no Muslim intellectual defends Muslim women's rights on the touchstone of the Constitution. It is understandable that former minister Salman Khurshid did not defend these fundamental rights before the SC bench since he comes from the Congress party which has supported Islamism from the Khilafat Movement to the Shah Bano case in 1986. What is not comprehensible is that Khan, who sacrificed his own political career on the issue of Muslim women's equality, also did not defend these fundamental rights.

These rights are non-negotiable. Advocate Farah Faiz, who usually defends constitutional principles, was only slightly ahead of Khurshid and Khan, by demanding that the Sharia courts be outlawed by the apex court.

It is pertinent to mention that there is no specific Muslim personal law. The expression "personal law" exists for a number of laws that govern Muslim issues like marriage, inheritance, Wakf and so on. Within the context of triple talaq, two laws must be mentioned. The Muslim Personal Law (Shariat) Application Act, 1937, governs Muslim marriage and other issues, but leaves the door open for Muslim men to divorce under religious rules outside court. No law exists under which a Muslim man seek divorce in a court. The Dissolution of Muslim Marriages Act, 1939, allows Muslim women to seek, not give, divorce through a court or outside the court.

Currently, a Muslim husband must divorce through either of the two forms of triple talaq: Triple talaq given in one sitting, or three talaqs given one every month over three months.

So what did Khan argue? Satya Prakash, a legal journalist who has been watching the submissions made before the constitution bench hearing the triple talaq, said, "The aggrieved Muslim women have invoked their fundamental rights to get rid of the discriminatory practice of triple talaq. And that is why this issue is being examined by a constitution bench. To me, it was shocking to see one advocate after another, including Arif Mohammad Khan, avoiding the constitutional principles of equality and non-discrimination, to instead focus on the Quran and Sharia alone. The only exceptions were senior advocates Ram Jethmalani and Indira Jaising, who put forth constitutional propositions to assert the Muslim women's fundamental rights."

It is unfortunate that the Muslim mind is unwilling to think outside the framework of religion. In his submissions before the bench, Khan limited his arguments to religion. As per media reports, Khan said, "In pre-Islamic Arab society, infant girls were buried alive. The practice was abolished after the advent of Islam… Triple talaq is the modern version of the pre-Islamic practice."

This effectively means that Khan is opposing triple talaq. However, he is failing, probably intentionally, to distinguish between the instant triple talaq and the triple talaq delivered under the procedure laid down in the Quran over the course of three menstrual periods.

Khan said, "The Quran advises the husband to settle differences through a mutual conversation as the first step. This step is known as the 'Faizu Hunna'. Then there is a step of physical separation, known as the 'Wahjuru Hunna'. And if that fails, then the husband must attempt to talk to the wife, make peace with her and talk about the gravity of the situation. This third step is known as the 'Wazribu Hunna'. If the third step fails, the fourth step of 'arbitration' must be followed. In this step, there is arbitration by members from families of both parties. It is only after all four steps have failed that a husband pronounces the first talaq. The husband has to compulsorily wait for a wife's iddah (three menstrual cycles) to complete before pronouncing another talaq."

The first four steps mentioned by Khan here are irrelevant to the legal issue being discussed.

It is possible that journalists may not have picked up Khan's arguments correctly, since they involve minute points within Islam. However, one understands that Khan is opposed to instant triple talaq, but he approves the Quranic procedure of triple talaq which is given unilaterally by men.

In this sense, both Salman Khurshid, who urged the court to declare triple talaq given in one sitting as a single talaq, and Khan, who approves the Quranic procedure of triple talaq, are essentially telling the court to retain the unilateral practice of divorce given by men, even when given in the presence of two witnesses. Arguments by both Khurshid and Khan leave a Muslim wife at the mercy of unilateral divorce. Importantly, Khurshid and Khan have both not asked the constitution court to declare divorces effected outside courts as illegal.

As per a media report, Khan stressed that the Quran alone must be the source of Islamic law, and Hadiths (traditions of Prophet Muhammad) should be taken into account only if the Quran was silent on a particular issue. This position is nearer to the one taken by members of the Ahle Hadith sect who do not follow the principle of 'Taqleed', which requires every Muslim to follow one of the four schools of 'fiqh' (Islamic jurisprudence) — led by noted jurists Imam Abu Hanifa, Imam Shafi'i, Imam Malik and Imam Hanbal. Barelvi and Deobandi Muslims follow Imam Abu Hanifa. Ahle Hadith sect is the only one which does not follow 'Taqleed', while the bulk of Muslims across South Asia follow the Hanafi school of Abu Hanifa. Even though Khan thinks that Quran alone must be the source of law, the Hanafi school does not agree with his position.

So, it can be argued that the positions taken by Khurshid and Khan necessarily militate the principle of separation of religion from the State and the law, thereby seeking to overturn several centuries of jurisprudence on this subject across the world. Elsewhere, Khan has argued that the Supreme Court should treat the practice of triple talaq as a contempt of court, which is basically arguing that whatever you do, don't remove religion from the Constitution. It is worrying that both Khurshid and Khan have argued against Muslim divorce taking place in a court of law. This position leaves room for the existence of a number of Sharia courts in India. And if the Supreme Court does not require a Muslim husband to effect his divorce in a courtroom, this will allow Islamic clerics to operate Sharia courts across the country.

This is a position also taken by the Islamic Sharia group Bharatiya Muslim Mahila Aandolan, whose advocate asked the apex court for "minimum interference". The so-called Aandolan (revolution), which trains female judges and runs Sharia courts, fears that if the apex court ruled that the Muslim husband must effect divorce inside a courtroom, its own Sharia shops will close.

Be it triple or quadruple talaq, it must happen inside a courtroom. The issue of talaq must come within the mainstream judicial framework and cannot be left to be determined by extra-judicial courts. Otherwise, not only would the Muslim wife be left at the mercy of unilateral divorce, the husband would also be left with the humiliating experience of effecting divorce on his own or through clerics.

The fallacy in Khan's argument, therefore, is that he wants the rights of women under Quran where the practice is essentially discriminatory. So long as the law does not give equal rights to Muslim woman and the Muslim husband can pronounce his own judgement, the issue cannot be resolved. One hopes that the Supreme Court addresses this aspect of the problem.

Currently, semi-literate Muslim women are defying Islamic clergy by knocking on the doors of the Supreme Court, by offering prayers at Hindu temples and by beseeching Uttar Pradesh Chief Minister Yogi Adityanath to deliver them justice in the cases of triple talaq. The Supreme Court must send out hope to them. If women like them are turned down at the door of the constitution bench too, it would cause a long-term threat to India's flourishing democracy.