India’s Historic Week (Part I): Triple Talaq Judgement | Swagat Baruah

Swagat Baruah


While the riots in the state of Haryana hijacked the “good” part of last week towards its end, the faith in the justice system was yet again, for the third time, restored today after Gurmeet Ram Rahim Singh was was convicted and sentenced to 10 years in prison for the rape of two of his female followers in 2002. But the “good” part or even the “great” part of last week still remains vividly fresh in the minds of the Indian citizen.

On August 22, 2017, a 5-judge bench of the Supreme Court by a ratio of 3:2 declared the practice of instantaneous triple talaq by which a Muslim husband could divorce his wife by just pronouncing the words “talaq” thrice, as constitutionally invalid. The majority opinion regarding the same (although not regarding other vital questions of law in the case) was penned by Nariman J. and Lalit J. (jointly) and Joseph J. (separately)  and the minority opinion was penned by Khehar C.J. for himself and for Nazeer J. The primary route of arrival at their respective conclusions was through the practice of triple talaq according to the Muslim Personal Law (Shariat) Application Act, 1937 (hereinafter “the Act”), and whether it had been codified into the same and hence could be subject to fundamental rights under Part III of the Constitution. The dissenting opinion of Khehar C.J., in my opinion, although bad in law was a necessary and convenient stance, as it would’ve otherwise put both the majority and the minority in a 4:1 ruling in an uncomfortable position, given the religion of the Hon’ble Justices.

Quite surprisingly, the majority of the three judges (Khehar C.J., Nazeer J. and Joseph J.) held that the Act didn’t codify triple talaq (which had laid down the foundation of penning both the majority and the minority judgements). However, Joseph J. who had the “swing vote” in the case, arrived at his concurring majority opinion by departing from the line of dissent when he held that triple talaq is not a part of Muslim Personal Law.

Nariman J. revived his ‘doctrine of arbitrariness’ by overruling and criticising the 1996 judgement of  State of Andhra Pradesh v. McDowell [AIR 1627] which had held that laws cannot be constitutionally challenged on the ground of arbitrariness. However, as Gautam Bhatia rightly points out in his article on the Triple Talaq judgement, the practice was never a question about arbitrariness or the rule of law under Article 14, but about unequal powers granted to the Muslim man over his wife which attracts Article 15. Quite logically this line of approach was indeed wrong, until and unless Nariman J. and Lalit J. considered Muslim men as ‘entities’ which were capable of exercising over-empowering rights over their wives, through the Act, which goes against the understanding of family and societal institutions.

Jospeh J. opined that the Act is not a legislation regulating triple talaq. He adopted a convenient religious and wholly technical interpretation of the practice by reading into the Quran and invoking the Shamin Ara judgement which had declared the same to be “against the basic tenets of the Holy Quran and consequently, violative of Shariat law” while at the same time trying to distinguish between the Act enforcing the Shariat and the Act regulating triple talaq. Therefore the pertinent and vital question of whether uncodified personal laws are subject to the Constitution still went unanswered.

Khehar C.J. and Nazeer J. delivered their dissenting opinions on the line of essential religious practices as under Article 25 of the Constitution held triple talaq to be an essential religious practice as per Islamic law. The criticism of their dissenting opinion is very well understood as for the same, the two Hon’ble Justices had not many constitutional texts or history to cite except for an ancient Privy Council judgement dating back to 1932 (the Rashid Ahmed case), nor did they have viable statistics to prove the test of essential religious practices except for their citation of the population of Sunni Muslims belonging to the Hanafi school. To put it simply: the dissenting opinion in a landmark constitutional and religious law case of 21st Century India cited a favourable judgement, which is ancient, to prove the essentiality of such an abhorrent practice in light of the population which will be affected by it in 2017. They declared the same as:

“We are satisfied, that the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. There is not the slightest reason for us to record otherwise. We are of the view, that the practice of ‘talaq-e-biddat’, has had the sanction and approval of the religious denomination which practiced it, and as such, there can be no doubt that the practice, is a part of their ‘personal law’.” (paragraph 145)

What is essential and not essential for a religion was propounded by the Supreme Court in the Shirur Mutt case [AIR 1954 SC 282] where Mukerjea J. observed that:

What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, those periodical ceremonies should be performed these would be regarded as parts of religion and the mere fact that they involve expenditure of money, or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character ; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b).

Even in other more contemporary issues (recently revived politically as well as constitutionally) such as interpreting cow-slaughter, the Supreme Court has in the past, held it to be a non-essential religious practice after consulting the Quran and Hidaya (in the case of M.H. Qureshi v. State of Bihar [AIR 1958 SC 731]) although it is a commonly acknowledged fact that the Muslim community does consume beef and it is one of its main delicacies. But does Islam mandate it? No, as the Court had held as back as in 1958, and no Islam also doesn’t mandate the practice of triple talaq. The jurisprudence of essential religious practice hence has been seriously misinterpreted by the dissenters in this case as they didn’t really look into its true essentiality and stuck to a superficial and presumptuous viewpoint of its prevalent practice amongst Muslims in India.

Keeping up with the bizarre dissenting opinion, Khehar C.J. held that ‘personal laws’ are ‘fundamental rights’ of the people and that one’s religion itself was one’s exercise of fundamental rights. Such an opinion regarding law is intellectually unexpected and unbecoming of a Supreme Court judge (that too the Chief Justice) as he missed out on the fact that Article 25 doesn’t incorporate religion as a fundamental right, but only grants individuals the ‘freedom of conscience and free profession, practice and propagation of religion.’ To make such a view arrests the future jurisprudence of the Supreme Court of in illogical and medieval chains of justice. If this were indeed to come out as true, even Ram Rahim Singh can argue in court that his rape (or his ‘contact’ with his female followers) were part of his religion (which is according to the dissenters of this judgement, part of Article 25 and hence immune). This sounds preposterous even as I write it. This would’ve allowed a carte blanche to all religious bodies to unreasonably intervening in a person’s civil status and civil rights.

The other part of the dissenting opinion that I also find problematic is Khehar C.J.’s opinion that “religion is a matter of faith, and not a matter of logic” and his rejection of the argument of triple talaq violating the constitutional morality on that ground. This is yet again serving the interests of the ‘old guard’ of the judiciary and shying away from tackling religious issues as they exist in India today. Sure religion itself may not be a matter of logic, it never has been and it never will be. Religion and logic as history and even the status quo proves, have been each other’s nemesis. But in ascertaining a religious matter, and to depart from its illogical portions (if any) the Court must make use of logic as only that will be the only guiding light in those circumstances. Else, how do we expect a blind man to lead other blind men or for darkness to chase away darkness? This line of interpretation of the Supreme Court must be departed from and the judiciary must not shy away from fighting superstitions with logic and fighting blind faith with science. After all, given the paramountcy that the judiciary has gained in India today, who else can steer our society towards greater societal progress?

Swagat Baruah is a student of law at Gujarat National Law University.

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