Triple talaq verdict has not gone the entire distance
It fails to establish broader principles about the relationship between freedom of religion and other fundamental rights
The Supreme Court verdict on the practice of talaq-e-bidat is a curious one. By declaring instant triple talaq invalid, albeit in a split decision, the five-judge Constitution bench has ensured that Muslim women will no longer be subject to a regressive practice that ran counter to gender justice and equality. This is an unalloyed good.
However, the bench has sidestepped the broader issues of constitutional rules versus social norms. In doing so, it has failed to address the tension between freedom of religion and other fundamental rights that is a central issue in a liberal democracy.
Chief Justice of India J.S. Khehar and Justice S. Abdul Nazeer’s dissenting opinion has dismissed the appeal to invalidate talaq-e-bidat, on multiple grounds. In response to the petitioners’ argument that the practice was disprovedby various hadiths—reports containing the sayings ofProphet Muhammad—the judges have accepted the All India Muslim Personal Law Board’s (AIMPLB’s) argument, echoed by amicus curiae Salman Khurshid, that it was not the court’s role “to determine the true intricacies of faith”. This is understandable. It is absurd to expect a secular court to examine the hadiths presented by both sides, and untangle religious history and interpretation.
In contrast, Justices Khehar and Nazeer’s refusal to submit talaq-e-bidat to the test of fundamental rights guaranteed in Part III of the Constitution—such as the equality before law set down in Article 14—is disappointing.
A point of contention here is whether the Muslim Personal Law (Shariat) Act of 1937 codified talaq-e-bidat into statutory law or not, since statutory law is subject to fundamental rights. They conclude that it did not. They then have the option of examining whether personal laws are subject to fundamental rights even so. They cite the 1951 case, The State Of Bombay v. Narasu Appa Mali, to say that personal laws are not subject to fundamental rights—and refuse to re-examine the issue.
Justice Kurian Joseph has taken a very different approach. He agrees with Justices Khehar and Nazeer that the Shariat Act does not codify instant triple talaq into statutory law. But unlike them, he examines the relevant surahs in the Quran and cites the precedent of Shamim Ara v. State of UP & Anr to argue that talaq-e-bidat is not in fact an integral part of Muslim personal law and thus “lacks legal sanctity” under it.
Like Justice Joseph, Justices R.F. Nariman and Uday Umesh Lalit have invalidated talaq-e-bidat, but they have adopted yet another approach. They raise the crucial question of whether “Narasu Appa... which states that personal laws are outside Article 13(1) of the Constitution, is correct in law”. If they had examined that question, unlike Justices Khehar and Nazeer, and decided that the Narasu Appa precedent did not hold, it could have been a landmark.
But they never get around to it. They disagree with the dissenting judges, and with Justice Joseph, in holding that the Shariat Act in fact codifies talaq-e-bidat into statutory law. Given that, it can be measured against fundamental rights—and they find that “it is clear that this form of 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”. Being arbitrary, they judge it in violation of Article 14.
Even as the judgement is welcome, it fails to establish broader principles about the relationship between freedom of religion and other fundamental rights. Justice Nariman has acknowledged that “the difficult task of determining the propriety or the validity of adjustments made either legislatively or by executive action between the fundamental rights and the demands of socio-economic welfare has been ultimately left in charge of the High Courts and the Supreme Court by the Constitution”. But Justices Khehar and Nazeer have instead exercised judicial restraint at a time when reinterpretation was warranted. Nor does Justice Kurian’s justification of the bench kicking the can down the road to the legislature, by arguing that reconciliation between religion and other fundamental rights was solely the legislature’s responsibility, hold water.
The case provides as good an argument for a uniform civil code (UCC) as any. A number of political theorists have argued that individual rights spring from group rights, and are meaningless without them. This is true to an extent. Article 25, guaranteeing the right to freedom of religion, is indeed theoretically an individual right. But over seven decades, and in every religion practised in the country, it has been apparent that it often operates as a group right that does not buttress individual rights but suppresses them. In a contest between the two in a liberal democracy, individual rights must always win.
The most direct way to achieve this is with the UCC. Justice Khehar has argued: “Law is largely the formalized and enforceable expression of a community’s cultural norms.” In contrast, B.R. Ambedkar had famously said: “Constitutional morality is not a natural sentiment. It has to be cultivated... Democracy in India is only a top-dressing on an Indian soil which is essentially undemocratic.”
It would be wise to heed Ambedkar. Allowing cultural and religious norms to dictate jurisprudence in India would be a mistake.
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