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Majority Cannot Make Laws For Minority, Kapil Sibal Tells Supreme Court

(Representation Image/REUTERS)

(Representation Image/REUTERS)

After several arguments against triple talaq, a Constitution Bench of Supreme Court on Tuesday heard submissions on behalf of All India Muslim Personal Law Board on day four of the hearing.

New Delhi: After several arguments against triple talaq, a Constitution Bench of Supreme Court on Tuesday heard submissions on behalf of All India Muslim Personal Law Board on day four of the hearing.

Senior advocate Kapil Sibal, representing AIMPLB, told the five-judge bench that the majority cannot make laws for the minority and “the legislation of reform that has been cited is from the majority community”.

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Sibal contended that laws like Hindu Marriage Act are for the majority community and that just because they feel that the minority community needs a reform, it cannot be implemented.

“Where was the concern for the minority community when the rights of Kutchi Memon were trampled upon? Majority community cannot make laws for the minority unless the reform comes from within the community,” submitted Sibal, stating that there will be a time for uniform civil code, but that time has not come yet.

Sibal stressed on the point that how a Muslim marriage is a civil contract, which does not have any element of sacrament in it. “The nikahnama forms the basis of marriage in Islam. There can of course be terms and conditions in the contract by the women, but those cannot be un-Islamic terms and conditions like no maintenance amount to be paid upon divorce by husband, etc,” said Sibal.

Sibal contended that just because a certain section of people was aggrieved by their personal laws, does not warrant a case to seek reform in the area. He also said that uniform law was a reality in India, but it does not touch marriage or divorce.

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“During the 175 years of rule of the British, there were uniform legislations like criminal procedure code, civil procedure code, Indian penal code, law of limitation, etc but not on the areas of marriage and divorce,” said Sibal.

Sibal has also cited Article 35 of the Constitution and has stated that interference in personal laws can only be there with the consent of the members. “If it’s a matter of social reform, then the parliament can usher in a legislation to deal with it but not in case of personal laws. The right of the parliament is to see which part of our law has secular impunity and then pass a legislation in that area, and not otherwise,” said Sibal.

Justice Rohinton Nariman has raised an important question which will be dealt in the verdict as well. It was to determine the meaning of the word ‘secular’.

“Can we say a word for secular is non-religion?” said the SC judge, to which Sibal replied in the affirmative.

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The senior counsel has also submitted that if there is an “interference in the personal law, then till what extent will it go on?”

“If you are start interfering, then what is the limit? Where do we go? And then ‘why me’ is the question that will arise among the community members,” said the AIMPLB counsel.

Sibal also cited a recent incident of a Dalit being denied a haircut to show the plight of the minority in the country. Referring to the constituent assembly debates prior to the formation of the Constitution, Sibal cited observations by Dr BR Ambedkar and said that intention for Article 35 of the Constitution was to have laws on varied subjects, but not marriage and divorce. He submitted that the assumption that there needs to be interference in personal laws is misplaced.

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Further, he stated that prior to the Sharia Act, Muslims used to follow the majority law of Hindus for succession, etc and the intention to being the law in 1937 was to enforce personal laws for Muslims and “not codify Sharia”.

“Customs and usages are never part of law as they are not made by anyone… it grows,” said Sibal.

Kapil Sibal asserted that the contention made by AG Rohatgi that triple talaq needs to be constitutionally tested under Article 14, 15, and 21 is misplaced.

“The intention of the 1937 Shariat Application Act was not to codify Muslim Personal Law. Shariat is personal law and it in no way comes under Article 13 of the Constitution. Hence since it is not law as per Article 13, it does not attract the drill of the fundamental rights,” he said.

The bench took note of this submission and Justice Nariman said “it’s a very powerful argument.”

The AIMPLB counsel has also put forth that just like in a majority Muslim state where minorities need protection, in India, “a majority Hindu state, the minority needs to be protected."

Citing an important line of argument, Sibal stated that personal laws cannot be tested on the basis of being discriminatory. “You cannot say that strike down this law because I cannot adhere to it or I don’t like it,” said Sibal.

He was also critical of Rohatgi’s view of bringing in a new law for Muslim divorce to help in case triple talaq is abolished. “Firstly, personal law is not a law under Article 13. Then you say that strike down the personal law and we will bring in a law. That cannot happen,” argued Sibal.

To this the CJI stated, “For the first time Mr Sibal you are with us and not Mr Rohatgi.”

Sibal also said that “once we say that whenever a dispute arises in a family, it goes to the court saying that out fundamental rights are being violated then all the families will come to court and that should not be the case.”

“Our country is like a mosaic. We are like a garden of flowers with different colours and feel,” said Sibal, who was immediately interrupted by Justice Nariman who said that is why we have Article 29, giving a right to every section to preserve their culture.

Drawing a comparison with the Hindu laws, the senior lawyer said that every Hindu customs and practices are preserved and they are still being practiced under the exception clauses of the acts. The Hindus have no interference, then why only in the case of Muslims.

“Dowry is prohibited under the Dowry Prohibition Act for Hindus but it goes on as customs and practices, under the exception clause. Same is the case with the Guardianship Act. But when it is about a Muslim you say it is violation of Article 14, 15 and 21,” said Sibal, adding that he was personally against all forms of patriarchy but also believed that change cannot be brought overnight.

The AIMPLB counsel clearly stated that Triple Talaq cannot be tampered with as it’s something the Quran is silent about.

“The Quran does not mention any form of Talaq, whether it is Hasan, Ehsan or Biddah. The Quran does not say anything about triple talaq. Then how can we call it un-Islamic?” questioned Sibal.

However, Justice Kurian Joseph was not satisfied with the answer and went on to say that the practice will be un-Quranic as it does not have any basis in the Quran.

“The petitioners have argued that the first two forms of Talaq are mentioned in the verses of Quran as it speaks about reconciliation and a gap of 3 months, but it does not mention triple talaq. Or at least, the first two forms have their basis in the Quran, but not Talaq-e-Biddah,” said Justice Joseph.

He also asked Sibal, “In case of an apparent conflict between Quran and Hadeeth, what should prevail?”

To this, the senior advocate replied, “Only my faith should prevail, as it is a matter of belief for me. My belief can stem from the Quran or Hadeeth and something which is going on for 1400 years should not be tinkered with at all. My belief and faith cannot be interpreted by this court of law.”

Justice Joseph, unsatisfied with Sibal’s submission, asked, “If there is something so explicitly mentioned in the Quran, then what is the need to invent something at a later date?”

Even Justice Nariman said, “Precisely, the point is one is regular divorce and the other is irregular divorce,” and to this, Sibal replied in the affirmative.

There was a point when Justice Joseph asked Sibal if Talaq altogether can be done away with in the form of a clause in the marriage contract or the Nikahnama.

Although Sibal said that it cannot be done away with as it would be un-Islamic, he was not sure about which form of Talaq to exclude. After consulting with his assisting counsels, he informed the court that only “Talaq-e-Biddat can be excluded as it is an undesirable form of divorce” and not the other two.

To this, Justice Joseph said, “That means you agree that one is more valid than the other,” and Sibal only said that it was the respondent’s matter of faith and it cannot be interfered with by the court.

Kapil Sibal, further during his submissions, attempted to demolish the petitioners’ case by stating that the cases being relied upon by Kerala, Madras, Delhi and Gauhati High Courts had observations from scholars who belonged to “the Ahle Hadees school of Islam and the Qadianis.”

“Most of the scholars these judgments have relied upon are either from the minority school of Ahle Hadees or Qadianis who are considered to be Non-Muslims or a follower of person who claimed to be a prophet after Prophet Muhammad, and hence cannot be relied upon by this court. Plus, issues before these four High courts were not triple talaq, but the judges went ahead to write their own thesis and dissertation on Talaq-e-Biddat,” said Sibal.

At the end of the day’s hearing, Arif Mohammad Khan, who is appearing for the All India Muslim Women Personal Law Board, said, “If the All Indian Muslim Men Personal Law Board can have six hours to argue, then we need time to rebut as well. I will contradict him (Kapil Sibal) point by point tomorrow,” said Khan.