On August 22, 2017, the Supreme Court of India proclaimed a verdict, wherein the misuse of triple talaq practice prevalent in the Indian subcontinent was criticized and ruled against. Primarily, the practice, which is presumed to be discriminatory and unjust to women, stands struck down by the Hon’ble Court on account of its misuse and violation of the fundamental rights doctrine. Howsoever, this welcoming judgment had to take a detour to arrive at its finding, clearly evident from one of its constructive reasoning, wherein it held that the right to religion cannot supersede the right of the government to create regulations over it:
Article 25. Freedom of conscience and free profession, practice and propagation of religion:
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion;
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform …
According to finding of the learned judges, the freedom enshrined under Part III of the constitution cannot supersede the golden triangle per se Article 14, Article 19 and Article 21 of the constitution of India. A mere look at the aforesaid article proclaims that the freedom to profess religion is subjected and conditioned to public order, morality and health. If the said freedom affects the secularity or violates the rights of the citizens then the government cannot be prevented from making or bringing into operation a law in this regard. The same can be done to bring in social welfare and reform.
The Supreme Court of India thereof, decided to em-panel a 5 judge bench comprising of judges from 5 different faiths in India- Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. A rare sight but a master stroke nevertheless. Despite having difference(s) of opinion – the majority view of Hon’ble Justices Rohinton Fali Nariman and Uday Umesh Lalit held triple talaq to be violative of the fundamental right to equality contained in Article 14 of the Constitution. Whereas Justice Kurian Joseph agreed with them that triple talaq must be struck down, but not because it fails the test on the anvil of Article 14, but rather because it is not an integral part of islamic religious practice and is against the basic tenets of the holy quran.
The minority view of two judges consisting of Chief Justice of India J.S. Khehar and Justice Abdul Nazeer, being as learned as they are, urged the courts to approach matters of personal law with absolute restraint, underlining that these laws have constitutional protection. However, in common parlance their view was that of dissent wherein it was more preferred to let the government form a regulation over the same to keep a check on the misuse of triple talaq.
This judgment is not bereft of a political context. The verdict was realized almost after three decades after a government in 1986 had overturned a court’s intervention on Muslim personal law in the Shah Bano case. Since then, the demand for reform only grew louder within the Muslim community, particularly among its women. Something that compelled the All India Personal Law Board to pay attention. Albeit, the coming to power of present government with a large mandate has sparked similar fears of majoritarianism amongst minority. Something that was recently pointed out by a former Vice President of India as well.
Notwithstanding the progressiveness of the decision, the court failed to reflect upon immediate issues despite the demands of the case in hand. One look at the 365 pages judgment of the Supreme Court of India will reflect that the learned bench failed to debate on the issue of gender justice and gender tranquility. The triple talaq was primarily held invalid on the context that it was not a part of holy quran, was not a religious practice and was violative of article 14. Yet, nowhere did they debate as to how this practice was discriminatory in nature, was violative of the rights of women, and how the same was being misused by a particular gender of a community.
The major setback from the perspective of any rational human is their failure to distinguish between instant talaq and triple talaq. The issue at hand was the misuse of triple talaq i.e. INSTANT TALAQ. The practice of triple talaq is not bad per se, but the failure to keep a check on the same and establishing an institutionalized form for it is what resulted in its misuse. Ironically none of the learned Justices pointed it out.
Another misconception spread by the media houses in India is that the Judiciary held the practice to be unconstitutional. Ironically, only 2 judges out of the 5 held it to be unconstitutional, the third declared it as invalid (void ab initio). If something is void ab initio, then it isn’t unconstitutional but rather illegal to practice.
Furthermore the court has not unanimously or starkly framed the issue as an opposition between the constitution and personal law, which might lead to a missed chance to uphold constitutional values. But the lack of stridency and grand claims, while striking down the abominable practice of triple talaq, serves a valuable end inter alia by acknowledging a minority community’s aspirations without being disrespectful of its apprehensions, it keeps the crucial spaces for reform open.
– by boringbug