In a landmark judgment, the Supreme Court on Tuesday scrapped the 1,400-year-old practice of instant triple talaq (Talaq-e-Biddat) among Muslims terming it unconstitutional and sending out a strong message that religious practices which are arbitrary and discriminatory have no place in a constitutional democracy. There will not be a need to draft an enabling legislation to ban triple talaq as the majority judgment overrides the minority view that called for such a measure.
The decision, on a set of petitions filed by victims of triple talaq, was rendered by a majority of three Judges comprising a five-Judge Constitution Bench with the Chief Justice of India (CJI) JS Khehar and another Judge, Justice S Abdul Nazeer, being in minority. The majority decision was formed by Justices RF Nariman and UU lalit (giving a common judgment) and Justice Kurian Joseph, who scripted a separate decision concurring with the other two Judges that triple talaq was arbitrary and hence deserved no constitutional protection.
Justice Joseph, however, added that triple talaq does not classify to be a Personal law under Shariat as recognised by the Muslim Personal law (Shariat) Application Act, 1937 for the reason that it is against the tenets of the Quran.
He said, “What is held to be bad in the Holy Quran cannot be good in Shariat and in that sense, what is bad in theology is bad in law as well.”
As a matter of fact, triple talaq is practiced by Sunnis and not Shia Muslims. The verdict will affect a sizeable 13 per cent Muslim population in the country (roughly 16 crore) of which Sunnis alone constitute over 12 crore.
The two Judges (Justices Nariman and lalit), who gave the leading opinion, followed a different course to arrive at the same conclusion. According to them, all forms of talaq (including triple talaq) are “recognised and enforced” by Section 2 of the 1937 Act. Once it is
recognised as part of statutory law, it fell foul of Article 13(1) which invalidates any pre-Constitution law “inconsistent” with fundamental rights. The 1937 law was a pre-Constitution law and the Judges had to see whether it violated any fundamental right.
The two Judges held, “This form of talaq (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 contained under Article 14 of the Constitution.”
The Bench made it clear that they had dealt only with triple talaq and not the other two forms of talaq, namely Talaq-e-Ahsan and Talaq-e-Hasan.
Although forming the majority opinion, on two points, Justice Joseph disagreed with Justices Nariman and lalit. First, he said that the 1937 law does not regulate triple talaq for the reasons that triple talaq is a concept foreign to Islam and the Quran. He further held that triple talaq cannot be an integral part of Muslim religious practice. Second, he did not believe testing the law against Article 14 (right to equality) but instead borrowed the argument of the two Judges on the practice being arbitrary. Justice Joseph said, “I am of the strong view that the Constitutional democracy of India cannot conceive of a legislation which is arbitrary.”
However, what is interesting to note is the fact that though the debate on triple talaq was ignited suo motu by a two-Judge Bench which felt that practices such as triple talaq and polygamy are gender discriminative, none of the three Judges in their separate judgments dealt with the issue of discrimination.
Justice Nariman gave reason for not doing so in his judgment saying, “Since we have declared Section 2 of the 1937 Act to be void…being manifestly arbitrary, we do not find the need to go into the ground of discrimination.” The judgment also did not indicate whether it will apply retrospectively in order to annul all triple talaq decrees of the past.