The Supreme Court’s verdict, invalidating the practice of triple talaq, has indeed put an end to a medieval practice, but the reasoning given by the court is not satisfactory
To the delight of a large number of progressively thinking people, the Supreme Court invalidated the practice of triple talaq as it pronounced the landmark judgement in Shayara Bano vs Union Of India. The judgement carries three different opinions which base themselves on three different rationales.
The minority opinion was delivered by outgoing Chief Justice of India (CJI) JS Khehar and Justice S Abdul Nazeer chose to concur with him. In layman terms, the CJI didn’t choose to strike down triple talaq. But it is important to delve into the specifics of the rationale he gave. Justice Khehar highlighted the fact that triple talaq doesn’t derive its validity from an eight-decade old statute, the Muslim Personal law (Shariat) Application Act, 1937.
This law is very central to the application of Muslim personal law in India. It is because of this pre-independence Act; Sharia’h law is recognised as Muslim personal law.
In the opinion of Justice Khehar, the practice of triple talaq doesn’t flow from the operation of Shariat Act, 1937 and therefore, is a religious custom and hence, it is ought to be protected under Article 25 of the Constitution of India.
Justice Khehar inter alia also remarked that the Government of India had joined the cause for the petitioners, which is a very rare case scenario. Whenever the validity of any law is challenged, the Government of India is usually a respondent in such a petition. The Government of the day, choosing to take a positive stand here, decided not to oppose the petition, and instead supported it.
This prompted Justice Khehar to remark that, why should the Government not be pro-active and come out with a law on thisIJ Strictly speaking, at the end of the day, this is a legislature’s job. The fact that any law should stay or should it be repealed, is the primary function of the legislature. The judiciary’s role is to scrutinise the enacted law and see that it doesn’t violate Part III of the Indian Constitution which contains the fundamental rights.
Ultimately, Justice Khehar decided to not declare tripletalaq unconstitutional permanently, and instead suspended its operation for six months. In the meanwhile, he directed the legislature to come out with a law on this point. He also acknowledged that it is out of purview of his powers to direct the legislature but nevertheless, said that he is compelled to do this because the Government is supporting the petitioner. The above direction is a very dangerous precedent in terms of Indian constitutional law. The judiciary can, under no circumstance, direct the legislature to frame a particular law. This is taking judicial activism to a whole new level.
Coming to the opinion of Justice Kurian Joseph. It is easily the most regressive one amongst the three. He agrees with the opinion of Justice Khehar that triple talaq doesn’t flow from the operation of Shariat Act. But nevertheless, he went on to examine the validity of the practice in Quranic law. This is a very surprising exercise which he undertook, which also broke the tradition of judicially reviewing the laws on the basis of the Constitution of the country.
The job of the judiciary is not to sit in judgement of validity of laws and customs with respect to the Quran or any other religious text for that matter.
The judges, as per the mandate of the Indian constitutional law, can only examine the validity of a law or a custom with respect to the Constitution and no other document.
Ultimately, Justice Joseph invalidated the practice. His logic was, “what is bad in theology is bad in law”. Here he overruled the view of Justice Bachelor of Bombay High Court in Sarabai versus Babiabai, where he famously remarked that triple talaq is “good in law, though bad in theology”. Ideally, theology shouldn’t be a parametre to judge whether anything is good in law or bad in law. This is why this opinion of Justice Jospeh is not something which a progressively thinking society should look up to.
The third opinion of Justice Rohinton Nariman, which has been agreed by Justice UU lalit, is the most progressive one out of the three. Justice Nariman held that the operation of Shariat Act lends sanctity to the practice of triple talaq and, hence, its validity can be checked on the touchstone of the Constitution.
He put to use the test of ‘arbitrariness’ under Article 14 of the Indian Constitution which deals with right to equality.
The major part of his judgement too delved into Muslim religious law in an effort to prove that the practice is arbitrary because anything which is arbitrary is violative of Article 14. During the course of his judgement, he also laid down the ambit of Article 14 and the test of arbitrariness embodied in it. He overruled the judgement of Supreme Court in State Of Andhra Pradesh versus Mcdowell, which had said “arbitrariness” is not a ground for striking down anything. An interesting trivia at this point about McDowell’s case is that Justice Nariman had appeared as an advocate in this case and ended up on the losing side.
Justice Nariman now lays down an entire corpus of a new legal doctrine and calls it ‘manifest arbitrariness’. He settled the law under Article 14 and established ‘manifest arbitrariness’ as a sole test under Article 14. The other doctrine under Article 14, which found support from the judiciary previously in certain cases, including McDowell, is that of ‘reasonable classification’. It states that any state action can stand the test of Article 14 even when it differentiates people but such differentiation has to be based upon reasonable classification. By the operation of this judgement now, the doctrine of reasonable classification stands overruled.
What is seemingly a criticism of the opinion of Justice Nariman is that he has chosen to acknowledge that triple talaq flows from the Shariat Act. By doing so he accepted the fact that he can examine its validity of the practice only because it flows from Shariat Act and not otherwise. This means that a religious custom which is per se violative of a fundamental right but is not part of a Statute can be accorded protection under Article 25.
This doesn’t make sense in a modern society. Ideally, any custom, usage or law, as is the mandate of Article 13, which is violative of fundamental rights, should be struck down by the apex court, come what may.
The judgement has, therefore, indeed put an end to the medieval practice of triple talaq, but the reasoning it has given is not satisfactory.
The Supreme Court also did miss the opportunity to establish in law that any custom under personal law of a religion, which is violative of fundamental rights, is liable to be struck down and will not be protected under Article 25.
(The writer is a research fellow at the Department of Humanities and Social Science, Indian Institute of Technology Bombay and teaches law at National law University)