Today's Editorial

09 September 2017

SC took a novel path



Source: By Afroz Alam: Deccan Herald



A ‘multi-religious’ five-judge bench of the Supreme Court in its recent judgement of 395 pages set aside the practice of instant triple talaq by a 3:2 majority. It is certainly a welcome judgement, but it is just another ruling in a line of earlier judicial pronouncements. At first glance, the five-judge bench does not seem to have attempted to test the constitutional validity of instant triple talaq. Rather, it pronounced the verdict like an ordinary bench of the Supreme Court.


Specifically, the recent judgement has once again set aside the judicial pronouncement of the Privy Council in Rashid Ahmad v Anisa Khatun declaring instant triple talaq valid in 1932 by relying on the notion of Justice Bachelor — “good in law, though bad in theology,” propounded in Sarabai v Rabiabai (1906). However, this judgement of the Privy Council had already been overruled in the successive judgements of different high courts and the Supreme Court. For instance, the Gauhati High Court in Jiauddin Ahmed v Anwara Begum (1981) and Rukia Khatun v Abdul Khalique Laskar (1981) had already declared instant triple talaq invalid in the conspicuous absence of reasonable cause, attempts at reconciliation and the involvement of arbitrators.


In Masroor Ahmed v State (2008), the Delhi High Court did not consider the validity of instant triple talaq, declaring that talaq pronounced thrice instantly should be treated as a single pronouncement, and therefore not conclusive. Similarly, the practice of instant triple talaq was deprecated by the Kerala High Court in its judgement in Nazeer v Shemeema (2017), with an appeal to the legislature to frame a law in this regard. The culmination of earlier pronouncements was in Shamim Ara v State of UP (2002) when the Supreme Court affirmed that instant triple talaq lacks legal sanctity.


Be that as it may, the recent judgement was nevertheless significant for many other reasons. For one, the Supreme Court has thwarted the attempt of many political parties to exploit its judgement on triple talaq for electoral dividends by delivering the judgement at a time when no election (Lok Sabha or Assembly) is due anywhere in the country in the immediate future. For another, through this judgement, the Supreme Court tried to restore its waning democratic credentials when three of the learned judges used their own rationales capably to arrive at different opinions in examining the validity of triple talaq.


Lastly, it has been generally observed over the last six decades that dissenting opinions are rare when the Chief Justice is himself a part of the bench. More significantly, no Chief Justice of India had previously written a dissenting opinion. Contrary to these past trends, the present judgement is distinct in the sense that Chief Justice J S Khehar, since retired, expressed his dissenting opinion. Surprisingly, the issues, concerns and grievances of all parties in the present case were brilliantly aired as the five judges expressed their opinions in what seemed like a role play method — of clergy v liberal, with a moderator.


For instance, Justices Khehar and S. Abdul Nazeer, while taking the concerns of the Muslim clergy and other conservative forces into account, argued that the Supreme Court cannot judge religious practices on the rational logic of discrimination, arbitrariness and constitutional morality, and put the right to freedom of religion under Article 25 on a high pedestal by declaring it absolute. Further, they advised Parliament to frame a law in this regard using its power to bring about social reform through legislation, but restricted its domain only to instant triple talaq.


Justice Rohinton F Nariman and Justice Uday U Lalit in their judgement adopted the liberal posture, arguing that instant triple talaq is violative of not only fundamental rights contained under Article 14, but also that the 1937 Act is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognises and enforces triple talaq.


Median approach


In the ‘contest’ between the clergy and liberal judgements, the opinion of Justice Kurian Joseph acted like a moderator as it adopted not only the median approach but also helped in forming the majority opinion on certain opinions expressed by Justice Khehar and certain other opinions expressed by Justice Nariman. On the one hand, Justice Joseph sided with Justice Khehar’s opinions, first that the Shariat Application 1937 Act is not a legislation regulating talaq and, second, affirming that the right to freedom of religion under Article 25 is absolute. On the other hand, Justice Joseph went with the judgement in Shamim Ara case declaring that instant triple talaq lacks legal sanctity and thus approved the stand taken by Justice Nariman.

In other words, the judicial weight on the absoluteness of the right to freedom of religion has emerged as a face-saver for the All India Muslim Personal Law Board (AIMPLB) and all those who were on the side of continuing instant triple talaq. Similarly, the declaration of instant triple talaq invalid by a 3:2 majority has given a sense of victory not only to Muslim women but also to all those who sided with the abolition of instant triple talaq. As a consequence, unlike the Shah Bano judgement, the present judgement has been successful not only in neutralising the discontents of reactionary masses but also in safeguarding the country from public disorder. Most importantly, it remains to be seen whether the patriarchal exercise of ‘threat’ of talaq to ‘discipline’ women will finally be done away with or not in Indian society? After this judgement, will the Muslim clergy restrain themselves from issuing fatwa in relation to triple talaq?

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