Women’s rights are upheld and Muslim personal laws remain in place but discriminatory measures remain, writes Ronojoy Sen, as he details how the landmark decision came about

By uttering ‘talaq’ three times in quick succession, Muslim men in India have been able to divorce their wives. In a recent ruling, the Supreme Court of India has decided that the practice of instant triple talaqi is invalid.

In a 3-2 verdict, a five-judge bench of the Court ruled on 22 August 2017 that ‘talaq-e-biddat’ or triple talaq is unconstitutional.

It is a momentous decision. However, it highlights the complexity of India’s constitutional secularism and the somewhat contradictory approach taken by the Court historically in deciding cases related to religion.

Moreover, the judgment has been criticised by some for not adequately upholding constitutional values or furthering gender justice.

The majority judgment found the practice manifestly arbitrary and a violation of the Constitution. On the other hand, the minority judgment found that the practice of triple talaq enjoyed constitutional protection.

The majority verdict

The majority ruling consisted of two judgments delivered by Justice Rohinton Nariman, on behalf of himself and Justice Uday U Lalit, and a separate judgment by Justice Kurian Joseph. Justice Nariman’s ruling was founded on the fact that the Court was narrowly concerned with the practice of triple talaq alone, and not other forms of talaq.

Importantly, he also made clear that the Court was not concerned with Muslim personal laws as a whole.

Justice Nariman made three broad points to justify declaring triple talaq illegal.

First, triple talaq was recognised and enforced by the British-era Muslim Personal Law (Shariat) Application Act, 1937. It therefore could be construed as a ‘law in force’—under Article 13(3)(b) and liable to be struck down under Article 13(1)—if found to be inconsistent with the fundamental rights enumerated in the Constitution.

Second, Justice Nariman rejected the argument that triple talaq could be regarded as an ‘essential’ part of Islam and hence protected by Article 25, which guarantees freedom of religion.

According to him, though triple talaq is ‘permissible in Hanafi jurisprudence [one of the four schools of Sunni law and widely prevalent in India], yet, that very jurisprudence castigates triple talaq as being sinful. It is clear, therefore, that triple talaq forms no part of Article 25(1)’.

Under it, marital ties could be broken capriciously and whimsically without any attempt at reconciliation

The application of the ‘essential practices’ test, which is characteristic of the Indian Supreme Court’s jurisprudence on religion and often involves investigation into religious texts and theology, was part of Justice Joseph’s ruling too.

[ratina][/ratina]Justice Joseph examined in some detail the Islamic sources of talaq. Combining this with an analysis of earlier Court judgments on talaq, he concluded that the practice of triple talaq could not be ‘considered integral to the religious denomination in question’ and that it was not part of Muslim personal law.

Third, Justice Nariman applied the test of ‘manifest arbitrariness’ to rule triple talaq as violating Article 14 which grants equality before law. He ruled that triple talaq is ‘manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right (i.e. equality) under Article 14 of the Constitution of India’.

The minority verdict

The minority verdict that found that talaq enjoyed constitutional protection was delivered by Chief Justice J. S. Khehar, since retired from the Court. He disagreed with the majority judgment on virtually all the major points, and mounted a strong defence of community rights.

First, Justice Khehar ruled that triple talaq was integral to the Sunnis belonging to the Hanafi school and was a part of their personal law. Second, on the question of whether talaq, as codified by the 1937 Shariat Act, could be considered as ‘personal law’ of the Muslims, he answered in the affirmative.

Justice Khehar cited the 1952 Narasu Appa Mali judgment, in which the Bombay High Court had kept personal laws outside the purview of Article 13. Following that proposition, he argued that triple talaq could be challenged only on the ground that it infringed Article 25.

Dwelling on the question of whether triple talaq impinged on public order, morality or health – grounds on which a religious practice can be declared illegal – Justice Khehar answered in the negative. He then proceeded to examine whether triple talaq violated the fundamental rights enshrined in Part III of the Constitution, which is the other ground under Article 25 on which a religious practice can be invalidated.

Several countries had already done away with the gender discriminatory practice through legislation

The petitioners in the case had specifically raised the violation of Article 14, Article15, which prohibits discrimination, and Article 21, which guarantees protection of life and liberty.

Here, too, Justice Khehar answered in the negative, saying talaq was a matter of faith and did not violate any fundamental right. He stated that personal laws had been ‘elevated to the stature of a fundamental right’, and that it was not for the Court to ‘determine whether religious practices were prudent or progressive or regressive’.

Justice Khehar did, however, concede that triple talaq was gender discriminatory, and that several countries had done away with the practice through legislation.

Accordingly, he said the Court should exercise its power under Article 142 and direct the Indian Parliament to consider appropriate legislation with regard to triple talaq.

Looking to the future

The Supreme Court’s invalidation of triple talaq has raised the question of whether this could mark the beginning of a legislative move to reform Muslim personal law, which is still governed by the Shariat Act of 1937. This has been noted by analysts who have pointed out that the Court cannot bear the entire burden of reform or forging a consensus on personal laws.

Both Prime Minister Narendra Modi and BJP president Amit Shah have hailed the verdict as ‘historic’. Although it has been a long-standing demand of the party, no one in the government has mentioned a more thorough reform of Muslim personal law or talked of a uniform civil code. Importantly, the Court, has not made a reference to a uniform civil code, as it has on earlier occasions, such as the Shah Bano judgment of 1985.

The All India Muslim Personal Law Board, which was a party to the triple talaq case, has sought to portray the judgment as a vindication of its stand and has noted that the Court judgment validated the protection of personal laws. This was in contrast to its strong reaction in 1985 to the Shah Bano judgment.

The Supreme Court’s judgment on triple talaq has upheld women’s rights without undermining Muslim personal laws.

The larger question of changes to Muslim personal law, especially those provisions that are seen to discriminate against women, still remains unresolved. This is something that parliament, not the courts, would have to take on.

Featured image: Muslim girls during the mourning of Muharram in Kolkata, 2014 Photo: Biswarup Ganguly Source: Wikimedia Commons