Whenever there’s a conflict between personal law and the Indian Constitution, the latter prevails. If there’s a conflict between the rights of the individual and rights of the community, the former prevails. Period. This applies to the Muslim community and to all other communities, including Hindus. The government should make this clear to All India Muslim Personal Law Board and Muslim organisations up in arms over the call to ban triple talaq.
The government will be accused of pursuing a communal agenda — in fact, it has started already — and there will be a political ruckus, maybe a political price to pay, but it must stand firm. It has to send out a clear message that Constitution is supreme. Courts will follow it, if not in letter then in spirit, while dispensing justice. They are meant to provide justice to the victim. If the community, by whatever authority, intercedes on behalf of the culprit, it becomes party to the crime. Religious texts can be no excuse to perpetrate and perpetuate injustice. Personal law cannot override the rights and privileges guaranteed to individuals by the Constitution.
With the ideas of freedom, justice and equality as its core values, the Indian Constitution is modern as well as modernising. When it mentions the rights of minority communities, it has to be understood in the context of its core values. Rights of minorities from this perspective do not mean a licence to them to run the lives of their individual members in whatever manner they liked and under whatever justification. And so, it makes no sense when the AIMPLB claims that the Supreme Court is trying to ‘rewrite personal laws in the name of social reform’. This appears more ridiculous when you consider the fact it is making a case for triple talaq and polygamy.
The government must drive home the point emphatically.
An unambiguous position from the government is required to take all hypocrisy out of the political class in case of the above mentioned conflicts and avert a Shah Bano case-type situation. Of course, this needs absolute honesty of purpose and a good deal of tact. The more the BJP’s supporters keep talking about the Uniform Civil Code at this point, the more they are likely to create situations of communal acrimony. They must realise that if the rights and freedoms allowed to individuals by our Constitution are allowed in actual practice, the need for a common code may not arise at all. Make your position clear, keep aloof and let the courts take the call: This should be the approach of the government.
Of course, it has been tactful by steering clear of the UCC in this controversy. It can make its stand on the triple talaq issue stronger by getting the Muslim intellectuals of the progressive variety to speak in its favour. It’s rather curious that this section becomes inaudible when the forces of orthodoxy raise their pitch on such issues and communal politics takes over. The government's role as thought-leader and change agent always gets overshadowed by the shrillness let loose by vested interests in the community. The government can make them partners and win over the large voiceless population in the community. This, as we have mentioned earlier, requires honesty of purpose.
If the government is able to impress upon the community that its move is for the greater common good, it might win supporters too, not only among Muslims but among other communities. Traditions and religious practices have worked as instruments of suppression in the hands of the powerful or a nexus of the powerful in every religion. The oppressed need a hand of support. Since the political community in general would shy away from being vocal in their support, there’s the dividend of goodwill to be reaped by whoever does. BJP is in that position now. It does not have to do much. It only has to stand by the Constitution.