The court observed that the triple talaq practice sanctioned under Muslim Personal Law that governs marriage, property and divorce violates the rights of Muslim women. Article 13 talks about laws that may be inconsistent with or in derogation of the fundamental rights. A bench of Chief Justice J S Khehar and Justices N V Ramana and D Y Chandrachud was sorting out the finer points and procedure for commencing final hearing on triple talaq from May 11 when advocate Madhavi Divan handed over four questions framed by the Centre for the court's consideration.
Article 25 as accorded by the Constitution deals with the freedom to religion.
Speaking to ANI here, Swamy opined that there is a "wrong impression" that freedom of religion is absolute and further elaborated, that under Article 25 of the Constitution, it says that freedom of religion is subject to some reasonable restrictions, which are due to morality, public order and health.
The first question said, "Whether the impugned practices of talaq-e-bidat, nikah halala and polygamy are protected under Article 25 (1) of the Constitution?"
Meanwhile, the court asked all sides, including aggrieved women petitioners, Centre, All India Muslim Personal Board and women rights bodies to submit written submissions by March 30 on the issue of triple talaq, polygamy and nikah halala. "We have to go by the law and we would not go beyond the law". Whether this practices run counter to Constitutional Morality that guarantees equality before law and equal protection of laws? "We have to consider whether it is a fundamental trait of the religion, if it is so then we have to view it from another perspective...all the issues raised in the petitions are important and can not be scuttled", said the bench. It hinted that a Constitution Bench may be formed to take up the matter during the summer vacation. A judicial declaration from a Constitution Bench under Article 13 that personal laws are liable to comply with the fundamental rights guaranteed under the Constitution would bring religious law, even uncodified practices, under judicial review.
Earlier, in an affidavit the government said there is no reason that women in India should be denied their Constitutional rights when "Muslim countries where Islam is the state religion have undergone extensive reform" in this sphere. In Krishna Singh Vs Mathura Ahir, 1980, the top court held that "Part III of the Constitution does not touch upon the personal laws of the parties". The rights bestowed by religion can't be questioned in a court of law, it said.
The last question sought to know whether practices under the Muslim personal law will violate any International Covenants to which India is a signatory.