Triple Talaq: Touchstone Method Of Constitution Is Supreme


Today Supreme Court of India has stated that triple talaq will be tested on the touchstone of the constitution. The message is clear that constitution is supreme law of the land and anything whatsoever be its nature or form will have to follow the provisions of the constitution.

This is the fundamental basis of the rule of the law. If expounded in elaborative terms, the rule of law encompasses everything; all practices, social norms or personal attitudes will have to conform to the basic premise of the rule of the law.

The basic premise of rule of law is not limited to the concept that governance and administration should be in accordance to the laws of the countries but it in fact establishes that nothing is greater than the constitutional rules and laws, including any practice, ritual or doctrine which are being practiced even for the ages but are not in the interests of the individuals and violate the fundamental life principles.

India has adopted the rule of law based governance. Its preamble and provisions of the constitution talk about the equality of every sort of, the dignity of the individual is supreme, how can then anything be greater than the laws of the nation?

The mistake which Mr. Rajiv Gandhi committed in case of Shah bano case led to the miseries of several. Though SC had given the time changing verdict but Congress party for the vote bank politics upturned the decision. The legacy of great human values which Indian nationalist leaders practiced during the days of freedom struggle was lost by one executive decision. These are the backward steps which lead to the darkness.

The fresh discussions which have come up in SC are to be welcomed as this shows that there is again realization among the sane people of India and the Muslim community as well that time has arrive to go for the change.

The SC on the issue of triple Talaq observed that it is a “very important matter affecting a large section of people” which needs to be tested on the “touchstone of constitutional framework”. SC has already given the verdicts in which it has stated that anything which is basic tenets of the religion can only be accepted; else not. Its decision on the Ananda Margi faith is landmark judgment in March 2004.In the decision “the Supreme Court reiterated that taking out a Tandava dance in public carrying a skull, a trident, a knife and a live snake, etc., is not an essential part of the Ananda Margi faith and that police could impose restrictions on such processions.

A three-Judge Bench, by a majority of two to one, held that ‘the essential part of a religion means the core beliefs upon which a religion is founded and those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts of practices the superstructure of religion is built. Without which, a religion will be no religion. ’The majority decision, by Justice S. Rajendra Babu and Justice G.P. Mathur, said: ‘The test to determine whether a part or practice is essential to the religion is — to find out whether the nature of religion will be changed without that part or practice. If the taking away of the part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.” (J.Venkatesan,Tandava dance in public not part of Ananda Margi faith’, The Hindu,12 March 2004)

It is good to see that new generations of the young ones in all communities have shown promise of the progress. The backwardness in any community is shame to the country. Women have a larger role in the progress and any retrogressive cuff is against to progress. A case in point is of Muslim community where the social forces have prevented them to attain the progress which they deserve. Their participation as a community is quite low in the work force and participation of women is still low. “According to the 68th round of the Employment and Unemployment Situation Among Major Religious Groups In India report( based on a survey conducted by NSSO),The highest illiteracy is among Muslims with 30 per cent for rural males, 48.7 per cent for rural females, 19 per cent for urban males and 33.1 per cent for urban females. The Labour Force Participation (LFP) remains the poorest for Muslims in the country. The LFP in rural India is 406 per 1000 individuals and 367 in urban areas. For Muslims, however, it is abysmally low at 337 in rural and 342 in urban areas.” (Zeeshan Shaikh, Unemployment up in rural India, down in urban: Govt survey, Indian Express, February 20, 2016 ,

The SC has given as serious thought to the issue with a rule based approach which it will always do. The thinking of SC is likely to unlock a lot of potential of the women which is badly needed for the upliftment of their lot. The SC’s statement of placing the constitution as the touch stone structure has pushed India forward. India should also move towards the Uniform Civil Code as enshrined in DPSP under article 44.

Dr. Vivek Kumar Srivastava is Assistant Professor CSJM Kanpur University, Vice Chairman CSSP, Consultant CRIEPS, e mail-[email protected]

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