SC to Con­sider If Per­sonal Law Con­sti­tu­tional Or Not

Khe­har asks stake­hold­ers to frame ques­tions to fa­cil­i­tate hear­ing soon; CJI wants to wrap up hear­ing be­fore demit­ting of­fice in Au­gust Govt urges court to con­sider whether triple ta­laq & polygamy are ba­sic tenets of Is­lam

The Economic Times - - Pure Politics -

New Delhi: A Supreme Court Con­sti­tu­tion bench will con­sider whether prac­tices such as in­stant triple­ta­laqand­polygamyvi­o­latethe fun­da­men­tal rights of women to life and dig­nity and whether Mus­lim per­sonal law can be con­strued as valid cus­tom­ary law un­der Ar­ti­cle 13 of the Con­sti­tu­tion. The bench will do so based on queries put forth by the gov­ern­ment, which asked the court to ex­am­ine whether “per­sonal law was law” un­der the Con­sti­tu­tion. A rul­ing on these mat­ters could have far-reach­ing con­se­quences for the coun­try, an­a­lysts said, go­ing by prece­dents such as the Shah Bano case of the mid-eight­ies.

The­gov­ern­men­turged­thetop­court to con­sider whether triple ta­laq and polygamy were ba­sic tenets of Is­lam and were there­fore pro­tected un­der the right to re­li­gion guar­an­teed to Mus­lims un­der the Con­sti­tu­tion. If so, the courts would not be able to in­ter­vene in such mat­ters. The bench will also have to de­cide whether they were vi­ola­tive of in­ter­na­tional treaties and covenants signed by In­dia.

In this con­text, the cen­tral gov­ern­ment also wanted the top court to ex­am­ine whether the right to re­li­gion would­pre­vailover­a­woman’srightto equal­ity and right to life and dig­nity guar­an­teed un­der Ar­ti­cles 14 and 21 of Con­sti­tu­tion. It’s ex­pected that these ques­tions will be come up for hear­ing by a five-judge Con­sti­tu­tion bench in May. This will be the court’s sec­ond at­tempt at re­mov­ing what’s per­ceived­bysomeas­the anti-woman bi­ases of per­sonal law.

Chief jus­tice JS Khe­har asked all stake­hold­ers in the case — those op­pos­ing such prac­tices as be­ing per­ni­cious to women and sev­eral groups op­posed to what they char­ac­terise as at­tempts to un­der mine Mus­lim per­sonal law — to frame ques­tions to fa­cil­i­tate a hear­ing soon. Khe­har demits of­fice in Au­gust and has sig­nalled that he wants hear­ings wrapped up in two weeks, pos­si­bly early in the court’s May-June sum­mer re­cess. Ar­ti­cle 13 main­tains the va­lid­ity of all cus­tom­ary laws in ex­is­tence at the time of in­de­pen­dence un­less specif­i­cally barred.

Ar­ti­cle 13 main­tains va­lid­ity of all cus­tom­ary laws in ex­is­tence at the time of in­de­pen­dence un­less specif­i­cally barred

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