On August 22, 2018, the Indian Supreme Court ruled that “triple talaq”, the privilege of a Muslim man to divorce his wife instantly, was unconstitutional. The parliamentary debate that followed resulted in a stalemate; it was not possible to enact a statute codifying the unconstitutionality of talaq. President Ram Nath Kovind signed the Muslim Women (Protection of Rights on Marriage) Ordinance 2018, banning the Muslim practice of triple talaq.
The ruling and ordinance intend to deliver justice to Muslim women, are constitutional and well-intentioned. However, both the ruling and ordinance do not address whether individual Muslim, Hindu and Christian women and men are being treated equally. These actions are incomplete and flawed remedies. Many Muslims will feel singled out for unfair treatment and may resent the change. Article 14 of the Indian Constitution guarantees the fundamental rights to Equality before law and Article 15 is a prohibition of discrimination on the grounds of religion, race, sex or place of birth. Personal Laws are applied in areas covered by marriage, divorce, post-divorce maintenance, and succession and are different for individuals of different religious communities.
Is it possible to fashion a constitutional remedy that is equally applicable to all Indians, regardless of sex, religion, caste, or status of registration of the marriage?
In the Sarala Mudgal and Others v. Union of India and Others, 1995, case the Supreme Court emphasised that “respective personal laws were permitted by the British to govern the matters relating to inheritance, marriages etc. only under the regulations of 1781 framed by Warren Hastings. The Legislation – not religion – being the authority under which personal law was permitted to operate and is continuing to operate [in independent India].” These Regulations codified respective scriptures, holy texts, or customary practices of Hindus, Muslims, and Christians. The Company and subsequent British rule focused on colonisation and exploitation and were governed by the motto “divide and conquer”.
The regulations favoured men and discriminated against women. Personal laws, broadly the civil code, kept Indians divided by religion and prevented cohesion amongst Indians; this suited the British. Personal laws also suited the patriarchal sentiments of Indians. India gained Independence in 1947, and its Constitution came into force in 1950. After that date, Indians are no longer colonial subjects. The Preamble, summarising its wisdom of the Constitution provides for justice, liberty, equality of status, fraternity assuring the dignity of the individual for the people of India.
In the Mohd. Ahmed Khan v. Shan Bano Begum, AIR 1985) the Supreme Court acknowledged the “palpable injustice” being suffered by Indian Muslim women. The Court noted that “Undoubtedly the Muslim husband enjoys the privilege of being able to discard his wife whenever he chooses to do so, for reasons good, bad or indifferent. Indeed for no reasons at all.”
How could India and its Supreme Court tolerate privileging some individuals and allow them to discard another group of individuals? In re, Amina (AIR 1992 BOMBAY 214), Justice D.R. Dhanuka stated (pg. 218), that it was it is impossible to ignore patent discrimination resulting from some of the provisions of personal laws sought to be enforced in our Courts. He opined that some provisions appear clearly unjust and impose gross inequality and inequity in the matter of inheritance merely on the ground of sex.
Chief Justice Y.V. Chandrachud (Sivaramayya 1984 pg. vi) notes that “Discrimination based on sex is a well-known feature of ancient as well as contemporary India. Many inequalities based on sex in Hindu law have been removed by the enactments which were passed in 195556. Nonetheless, some inequalities like the right to birth in favour of a son, paternal grandson and paternal great-grandson persist…” 
Article 13, of the Constitution, deals with laws inconsistent with or in derogation of the Fundamental Rights. It voids all laws in force in the territory of India immediately before the commencement of the Constitution, to the extent of the inconsistency.
In the State v. Narsu Appa Mali (1952 Bom.) case, Justices Chagla C.J. and Gajendragadkar considered the Bombay Prevention of Hindu Bigamous Marriages Act 1946 and ruled that the sources of personal laws are religious texts such as the Srutis, Smritis, and Khoran (not the Constitution). They stated that personal laws cannot be said to have been passed or made by a Legislature or other competent authority. They stated that personal Laws were not “law,” or “law in force,” or “custom or usage,” or “not a custom or usage having the force of law.” Rather than take a commensurate logical action and cease the use of such dubious instruments, the Court continued Personal Laws. This judicial action was a blow against the rule of law.
In 1980, the Indian Supreme Court (Krishna Singh v. Mathura Ahir) ruled that it will not recognise the Fundamental Rights of citizens in areas covered by Personal Laws. This judicial action was a blow against Fundamental Rights.
In comparison to the above two rulings, the Supreme Court’s 2018, decision deeming triple talaq as unconstitutional, remedies the injustice in privileging Muslim men to discard Indian Muslim women. However, it is a piecemeal approach and so is the Presidential ordinance.
They leave the edifice of Personal Laws, whether derived from British Regulations or religious texts, untouched. In contrast to Personal Laws, the Indian Constitution demands justice, liberty, equality, and non-discrimination for the individual.
Justice Khalid in the Haneefa case (1972, page 514) noted the “suffering,” “tyranny,” “cruelty” meted out to “unfortunate” Muslim wives by “monstrous” personal laws imposed on such women by the State. He said that his conscience is disturbed by “personal law [which] remains so cruel towards these unfortunate wives.” More recently, in the Joseph Shine vs Union of India, 2018, the Supreme Court declared that a husband did not own his wife and stated that in India, “Equality is the governing parameter.”
The Special Marriage Act, 1954 is an Act of the Parliament of India. It provides a mechanism for every Indian citizen irrespective of the religion, sex, or caste to get married or divorced. For example, men and women who are Hindus, Muslims, Buddhists, Jains, Sikhs, Christians, Parsis, or Jews can avail themselves of its equitable provisions. It also provides a legal framework for succession. It does not favour either sex. It complies with all Fundamental Rights.
However, the effect of the Special Marriages Act, 1954, is that it discriminates based on the status of registration or non-registration. People whose marriages are registered enjoy fundamental rights regardless of sex or religion. In comparison, people whose marriages are not registered are denied fundamental rights. It creates a liability on many poor and illiterate masses who are unaware of the discrimination that results from not registering a marriage.
Furthermore, it creates a burden on them as they may not have the resources to register a marriage. Thus, the act’s requirement for registration of the marriage produces two classes of citizens, one privileged with constitutional rights and the other disfavored with constitutional disabilities. Thus currently, all Indians whose marriages are not registered have not been enjoying their Fundamental Rights.
The Supreme Court must perform a constitutional judicial review of the Special Marriages Act and declare its marriage-registration requirement as unconstitutional. All marriages (sacramental, contractual or otherwise), whether registered or not, must be held to be valid and subject to other provisions of the Special Marriages Act. It must declare that the Act’s equitable provisions for both sexes, to be the law of the land and applicable to all Indians — Atheist, Buddhist, Christian, Hindu, Jew, Muslim, Parsi Sikh, etc. In affected areas, such a constitutional judicial action will at once provide the freedoms of equality, non-discrimination, and uniformity of laws for all Indian individuals. Because the Special Marriage Act, 1954 is already an Act of the Parliament of India, no further Legislative action is necessary to enforce its provisions.