More than half the total strength of judges in Supreme Court will be working this summer vacation as Chief Justice of India (CJI) JS Khehar on Thursday disclosed that three Constitution Benches will sit through the summer break beginning May 11. One of the issues up for consideration is the contentious debate on whether triple talaq and polygamy practiced under Muslim Personal laws discriminate against Muslim women and violate their individual rights.
Taking up this case, the Bench of CJI Khehar and Justice DY Chandrachud fixed the case for hearing on May 11 with the counsels for all parties agreeing to argue the matter during vacation.
The Bench observed that “sentiments” were involved in the matter pending before it and a five-judge Constitution Bench would adjudicate the issue, which required a detailed hearing. The Bench said it was open to hearing the matter on even Saturday and Sunday during the summer vacation.
A Constitution Bench comprises of minimum five judges and one Bench will be assigned a case each. Beside the issue of Muslim Personal laws, the remaining two matters listed during vacation include the privacy rights of citizens in allowing Facebook to access information shared on WhatsApp, and the issue of grant of citizenship to children born of illegal migrants in the country.
Attorney-General Mukul Rohatgi requested the court to have one Bench at a time as this would help lawyers prepare for each matter.
Echoing similar views, senior advocate Kapil Sibal told the court that having simultaneous Constitution Benches will be a burden on lawyers who need to appear in more than one of the cases listed before these Benches. “If you are not ready to have it during vacation, then don’t blame us.”
Responding to the contention, the Bench said, “These are very important matters. If we do not do it this way, then for years it will never happen.”
CJI Khehar said, “If you say you do not want to do it (during vacation) then do not blame us. last time, I kept on writing the judgements during the whole vacation. We have to work together.
“If you do not want us to work together, I will be very happy enjoying my vacation but then do not tell us so many years have passed and the matter has not been heard,” the CJI said, adding when the matters remain pending there is a talk about the large arrears of cases.
The Bench also clarified that it has fixed the matter for hearing from May 11 as all the parties had agreed before it to list the case at the start of the vacation.
“If we start from May 11, we will have hearing on May 12 which is a Friday. If you wish, we can even sit on May 13 and 14 (Saturday and Sunday). After that we will have a whole week for hearing the matter.
“If a time frame can be fixed for NJAC (National Judicial Appointments Commission) case, why it cannot be done in this case. There are sentiments involved in it (this case),” the Bench said.
Beside a minimum of 15 judges meant for the Constitution Benches, the CJI is also likely to set up Vacation Benches for urgent matters arising out of bail, stay against eviction or imprisonment. The Bench indicated that at best the hearing would conclude within a week and it will be open to hear the case even on the intervening weekend, subject to lawyers agreeing to come.
The Apex Court had earlier said it would decide issues pertaining to the legal aspects of the practices of triple talaq, nikah halala and polygamy among Muslims but would not deal with the question whether divorce under Muslim law needs to be supervised by courts as it falls under the legislative domain.
The Centre had on October 7 last year opposed in the Supreme Court the practice of triple talaq, nikah halala and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism.
On March 27, the All India Muslim Personal law Board (AIMPlB) had told the apex court that pleas challenging such practices among Muslims were not maintainable as the issues fell outside the realm of judiciary.
The Board had also said that the validity of Mohammedan law, founded essentially on the Holy Quran and sources based on it, cannot be tested on the particular provisions of the Constitution.
It had said there was a need for “judicial restraint” before going into constitutional interpretation of these unless such an exercise becomes unavoidable.
The Ministry of law and Justice, in its affidavit, had referred to constitutional principles like gender equality, secularism, international covenants, religious practices and marital law prevalent in various Islamic countries to drive home the point that the practice of triple talaq and polygamy needed to be adjudicated upon afresh by the apex court.
The Apex Court had taken suo moto cognizance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husband.