It is very rare that the Chief Justice of India is reduced to a minority in a Bench of which he is a part. In the recent past, while there have been dissenting opinions given by individual judges, this trend has hardly been seen in CJI-headed Benches.
To hear the present case on triple talaq, a multi-religion Bench was set up with the first Sikh Chief Justice JS Khehar as the head. Justices Kurian Joseph (Christian), Rohington F Nariman (Parsi), UU lalit (Hindu) and S Abdul Nazeer (Muslim) were the other Bench partners.
Interestingly, the CJI’s minority decision had the lion’s share of 272 pages of the total 393 pages of judgment. The majority opinion given by Justice Joseph and Justice Nariman (along with Justice lalit) together constituted 121 pages.
There hasn’t been a judgment in recent times when the CJI’s opinion formed the minority view. This is so because CJI is the administrative head and while allocating Benches, it is his prerogative to choose which judge should sit with him in a Constitution Bench of five or more judges. Although, the CJI was made to eat a humble pie as his arguments to save triple talaq were powerfully repelled by three out of the five judges, yet his judgment raised some important points while arriving at a different conclusion.
CJI Khehar and Justice Nazeer, in their common judgment, referred to other countries in the Muslim and non-Muslim world which have codified divorce laws and do not recognise triple talaq.
“When remedial measures have been adopted by Muslim world, we find no reason for an independent India to lag behind.” The two judges formed the opinion that triple talaq is an integral part of religious faith of Muslims and enjoyed status of a fundamental right under Article 25 of Constitution. “It is judicially unthinkable for a Court to declare as unconstitutional what the Constitution declares as a fundamental right,” the CJI said.
The minority decision referred the matter to Centre to bring a law to do away with triple talaq referring to past instances where “undesirable” religious practices such as Sati, Devadasi and polygamy among Hindus were invalidated by legislative enactments. Giving six months to the Centre to frame a law while restraining Muslim husbands during this period from pronouncing triple talaq, the CJI beseeched political parties to come together while keeping their individual political gains apart.