NEW DELHI -- Triple talaq is neither integral to Islam nor a "majority versus minority" issue but rather an "intra-community tussle" between Muslim men and deprived women, the Centre on Wednesday told the Supreme Court.
Attorney General Mukul Rohatgi, in his rebuttal to the arguments favouring the 1,400 year-old practice of triple talaq, made a strong pitch for judicial scrutiny on grounds including violation of fundamental rights like right to equality and gender justice and said that the apex court cannot shy away.
A five-judge Constitution bench headed by Chief Justice J S Khehar, asked the Centre as to why it did not legislate to regulate marriages and divorce among Muslims.
"You (Centre) said if court quashes triple talaq then you will make a law but why the government did not make a law for last 60 years?" the bench, also comprising justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, asked.
Rohatgi replied that the hallmark of a secular court was to reform without waiting for a legislation, when such matters come to it.
"I will do what I have to do but the question is what will you (court) do? I have given statement on instruction. I speak for the government and can't speak for parliament," he said reiterating that the top court was guardian of fundamental rights and has to see whether there was any violation of such rights.
Earlier during the day, the bench asked the All India Muslim Personal Law Board (AIMPLB) whether a woman can be given an option of saying 'no' to triple talaq at the time of execution of 'nikahnama' (marriage contract).
"Can it be made possible to give an option to a wife that she can say that she was agreeable to or not agreeable to it (triple talaq)?
"Is it possible to pass a resolution to all 'qazis' to include this condition (giving right to woman to say 'no' to triple talaq) in 'nikahnama'? Give an option to wife to say 'no' to triple talaq," the bench said.
Former Union minister and senior lawyer Kapil Sibal, representing the AIMPLB, said that he will respond to after talking to all the board members.
Rohatgi, responding to Sibal and a battery of senior lawyers favouring triple talaq, said even the core of religion has to be tested on the touchstone of fundamental rights.
Referring to the responses of the AIMPLB, he said that even they say that triple talaq was "undesirable", "sinful" but yet valid and wondered "then how it can be said to be integral to religion".
He further said this time, Muslim women have questioned the centuries-old "hegemony suffered by them at the hands of their male counterparts" of the community.
"The prism through which you see the case is not like majority versus minority but this is a case where it is an intra-community tussle between Muslim men and women.
"This time Muslim women have questioned the centuries-old hegemony suffered by them at the hands of their male counterparts," Rohatgi said, adding that the practice of triple talaq is a tussle between the "haves and have-nots" inside the community.
He said this fight is between men of Muslim community, who are more powerful, empowered and educated and women, not so powerful, not empowered and uneducated.
The court can fill up the void by judicial pronouncements if there is no law on a particular issue, Rohatgi said, adding the guidelines on sexual harassment at work place were framed by it in the Vishakha case.
Rohatgi referred to practises 'sati', infanticide, 'devdasi' and untouchability among Hindus and said that they have been done away with.
"Did courts do it? These were abolished by legislations," the bench asked.
"Then why do the court goes into issues like Vishaka. The court can't say that it is helpless and it cannot step in. It is the guardian of fundamental right," Rohatgi replied.
He said that India is "secular country with a secular constitution" which has kept core of all religions intact but they are subject to fundamental rights.
"We had several religions after Partition. There were people from over 600 princely states and tribes practising different faiths and religions. The core of every religion was kept but they were made subject to fundamental rights," he said.
He said under Article 25 (right to practice religion) of Constitution, even the core component of a religion can be tested on the grounds of fundamental rights.
"Rights given under Article 25 of Constitution cannot be considered as absolute", he said, adding the court has to look into these aspects as a community cannot decide what is their fundamental rights.
Comparing practices in Islamic countries, Rohatgi said that in 25 nations, religion continued to strive even after abolishing triple talaq and hence, this cannot be termed as "integral part of Islam".
"What is optional cannot be under Article 25 and it cannot be considered as an essential part of religion. If it had been integral part of religion then the religion will not remain religion in its original form but if it is optional then even if it is taken out, the religion will remain the same," he said.
He said that if the right to religion went against the fundamental rights, then it is the Constitution which will prevail over practices like triple talaq.
Sibal, who started arguments today, referred to a Delhi High Court judgement and said that it was wrong in holding that all schools of thought termed 'triple talaq' as "sinful".
The Supreme Court cannot be called upon to decide as to what was wrong or right with the practice and belief, he said.
Referring to a judgement, he went to the extent of saying that the personal law is a legitimate basis of discrimination.
AIMPLB also said that the court should not venture into the issue on its own as no one has approached it.
"Some persons have come to this court," the bench said.
Sibal said challenging the constitutional validity of triple talaq, being practised by a small portion of community, may revive the practice which is dying.
He said if a secular court like the Supreme Court decides to undertake suo motu (on its own) scrutiny of the issue with the Centre seeking a ban then, the community may take a tough stand.
The Muslim community is like small birds on which golden eagle preys, he said, adding "the community's nests must have the Supreme Court protection."
Sibal said it is that faith with which the community is before the court today seeking protection of its personal law customs and practices.
"Our faith in this court for last 67 years is fundamental and with that faith we have come here," he said.
Today was the fifth day of the hearing on a clutch of petitions challenging triple talaq, polygamy and 'nikah halala' which is going on before a bench comprising members of different religious communities including Sikh, Christian, Parsi, Hindu and Muslim.
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