Muslim Divorce and the Constitutional Right to Equality

Approximately one year ago, the Supreme Court of India issued the landmark Shayara Bano decision setting aside the Muslim divorce mechanism of instantaneous triple talaq (triple talaq), – the utterance of talaq three times in quick succession by a Muslim husband. In response to this judicial verdict, the central government recently promulgated the Muslim Women (Protection of Rights on Marriage) Ordinance (the ordinance), which imposes criminal penalties on Muslim men for invoking triple talaq. Many critics are clamoring for the constitutional invalidation of the ordinance on the ground that it discriminates between men of different religious communities as only Muslim divorce invites criminal punishment. As such, they argue that it is in violation of Article 14 of the Indian constitution, which guarantees equality before the law. These claims of discrimination will face the stumbling block of the 1951 judgment Narasu Appa Mali (Narasu), which empowered the state to enact “community-wise” criminal laws that targeted particular social groups in the interest of social reform. The Supreme Court has repeatedly upheld Narasu, insulating measures like the ordinance from the charge of discrimination. CONSTITUTIONALLY PERMISSIBLE: SOCIAL REFORM IN RESPECT OF A PARTICULAR COMMUNITY The court in Narasu upheld the Bombay Prevention of Hindu Bigamous Marriages Act 1946 making only Hindus criminally liable for bigamy. The defendant in the case objected to the exemption of Muslims, who also practiced bigamy, from the application of the law. In explaining why the state is not required by Article 14 to also ban bigamy committed by Muslims, the Court relied on a number of factors. It explained that the Constitution itself envisaged the gradual institution of social reform laws that may for some time exempt certain communities. It cited Article 44 of the Constitution, which recognizes that social reform will not occur through a single code of reform but via piecemeal measures enacted over time. Furthermore, the Court explained that the government could legitimately take into account the many differences between Hindus and Muslims while crafting legislation. For instance, the Court stated that Hindus had only recently been introduced to divorce law while for Muslims it had been a long-standing practice. Moreover, for Hindus, marriage was sacramental whereas for Muslims it constituted a contract. Given the multiple variations in the laws governing these diverse communities, the Court held that the two communities may harbor different expectations and demands when it came to social reform.As the state was entitled to consider these differences, the court deferred to its calculus, commenting “[t]he state…may have thought that the Hindu community was more ripe for the reform in question”. They added, “[s]ocial reformers amongst the Hindus have agitated for this reform vehemently for many years past and the social conscience of the Hindus, according to the legislature, may have been more in tune with the spirit of the proposed reform (at 30).” Thus, if the state believes a community is ready for reform based on social agitation it will not be “arbitrary or capricious” to confine reform to that particular community. CONSTITUTIONALLY PERMISSIBLE COMMUNITY-WISE CRIMINAL PUNISHMENT? The Narasu court also explains the constitutionality of the impugned law’s criminal punishment for bigamy. The objections to the Act’s criminal provisions mirror the objections raised today to the ordinance: “It is pointed out that in providing for the [criminal] punishment of bigamous marriages the impugned Act contains provisions which are very severe, and in so far as these…stringent provisions are intended to be applied only against the Hindus, they constitute discrimination against them…on the ground of religion (at 18).” The severity of a community-specific criminal sanction was not contentious for the Narasu court. It stressed that “[i]t must be remembered that the legislature…thought that the evil of bigamy prevailing amongst the Hindus could not be effectively put down unless the offense was made cognizable and unless amongst the abettors were included even the priests who officiate at Hindu marriages” (Paragraph 26). Thus, Narasu bestows upon the state the discretion to endow its community-specific social reform law with criminal sanctions, in the interest of giving it more teeth. CONSTITUTIONALLY PERMISSIBLE: THE ORDINANCE Based on this precedent, a court today could easily validate the discrimination contained in the ordinance. It could cite the constitutional affirmation of gradual reform. Furthermore, it could refer to the government’s claim that social reformers have campaigned vigorously against triple talaq. Finally, it could also refer to the government’s belief that triple talaq cannot be “effectively put down” without criminal punishment. Consequently, Narasu reminds us that as long as the state believes in the necessity of levying harsh penalties to achieve social reform measures, equality considerations will not invalidate a community-specific law. Given that the Supreme Court has endorsed this decision in a catena of cases, from Javed v. the State of Haryana to Khursheed Ahmed Khan v. State of Uttar Pradesh, the various challenges to the ordinance alleging unconstitutional discrimination face an uphill task.