Today's Editorial

03 September 2017

Good decision, poor reasoning

 

Source: By Namit Saxena: Deccan Herald

 

A five-judge bench of the Supreme Court has set aside the Indo-Sunni-Islamic practice of dissolving marriage instantly through the pronouncement of triple talaq (talaq-e-biddat). It was a split decision, in the close ratio 2.6: 2.4. Chief Justice Khehar, writing the minority opinion for himself and Justice Abdul Nazeer, directed the Union of India to consider bringing an appropriate legislation in this regard and injuncted Muslim husbands from using talaq-e-biddat for severing their matrimonial relationship for a period of six months.

Justices Kurian Joseph and Nariman (the latter writing for himself and Justice U U Lalit), writing the majority opinion, with a few disagreements, held conclusively that the practice of triple talaq cannot be sustained. The decision is welcome, but the reasoning given by the Supreme Court is disappointing. To check the constitutional validity of the practice of triple talaq, the Supreme Court had to first decide if a personal law is a ‘law’ or ‘law in force’ as per Article 13 of the Constitution; secondly, whether such a practice of personal law can supersede a constitutional right; and thirdly, whether the practice was an essential or integral part of Islam.

The Supreme Court, however, chose an entirely different, and clumsy, route. Justices Khehar and Joseph held that the 1937 Shariat Act is not a legislation regulating talaq and, hence, the same cannot be tested on the anvil of Article 14, which is diametrically opposite to the stand taken by Justice Nariman who, in fact, wrote that the 1937 Act being a pre-constitutional legislative measure would fall directly within Article 13(1).

Another prominent aspect is that all three judges have consciously refused to consider the question whether personal law is subject to the Constitution. Justice Khehar wrote erroneously that the stature of personal law is that of a fundamental right. None of the judges expressly held that triple talaq is unconstitutional. Therefore, in contrast to what has been largely reported, it cannot be said that triple talaq has been declared unconstitutional.

The difference of opinion between Justice Khehar and Justice Nariman is that while the former finds that the practice of triple talaq cannot be set aside for being violative of Articles 14, 15(1), 21 and 25(1), the latter found the practice arbitrary and liable to be set aside. Interestingly, Justice Nariman did not connect manifest arbitrariness to the practice of triple talaq at all and simply termed it so. It is in this light that Justice Joseph’s opinion becomes extremely important as he tilted the judgement in favour of Justice Nariman’s view. However, before going into Justice Joseph’s opinion, it is important to note that in Narasu Appa Mali (1950), the Bombay High Court had held that personal laws which had not been codified under a statute cannot be tested on the touchstone of Part III of the Constitution. This proposition has been affirmed by the Supreme Court.

Justice Joseph’s reasoning is based on the decision in Shamim Ara v. State of UP [(2002) 7 SCC 518] which had previously held in implied words that triple talaq lacks legal sanctity. He held that the practice of triple talaq not being a state action cannot be examined for being violative of Part III. However, as Justice Kurian found that the 1937 Shariat Act is not a legislation regulating talaq, he took Justice Nariman’s route that legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness.

He, therefore, based his reasoning on triple talaq being against the basic tenets of the Holy Quran and consequently, violative of Shariat. He further held that the practice of triple talaq is not integral to Islam (concurred by Justice Nariman) and that a practice that has been expressly declared to be impermissible cannot be held as valid merely because it has continued for long. He further differed from Justice Khehar’s minority opinion in two more aspects – that even under Article 142, the exercise of a Fundamental Right can be injuncted; and that it is not for the courts to issue direction for any legislation. Thereby, Justice Joseph has held triple talaq to be arbitrary, not integral to Islam and not part of their personal law at all, and against the Quran.

Therefore, the abhorrent practice of triple talaq has not been discarded for being discriminatory and against Part III of the Constitution but for only being arbitrary and, therefore, violative of Article 14 of the Constitution. In my view, the Supreme Court missed a golden opportunity to revisit the rationale of Narasu Appa Mali. Surprisingly, none of the judges dealt with the issue whether triple talaq can be treated as a ‘customary law’ which by virtue of the judgment in Madhu Kishwar vs State of Bihar, is subject to Part III. It is Justice Joseph’s partly concurring, partly dissenting judgement which tilts the issue against triple talaq.

The reasoning given by Justices Nariman and Joseph are different and none of them completely justifies setting the practice aside and did not even touch the aspect of the practice being discriminatory to women at all. What is also astonishing is that Justice Nariman did not express any views as to how triple talaq is arbitrary but set it aside for being so. In fact, he overruled by implication McDowell’s and Rajbala cases which declined to accept the doctrine of arbitrariness. He declared the 1937 Act, insofar as it seeks to recognise and enforce triple talaq, void to the extent that it recognises and enforces triple talaq. This view is not at all endorsed by Justice Joseph who, in fact, holds that after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.

There’s a well-known saying: If all you have is a hammer, everything looks like a nail. Instead of going into actual questions of law, the majority chose to use its hammer – or rather the gavel -- to declare triple talaq arbitrary without assigning any reasons for it and set it aside. In a nutshell, undoubtedly the decision is welcome, but the reasoning taken by the Supreme Court is disappointing and leaves much to be dealt with.

 

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