REPORTS & ESSAYS
September 5, 2017
The triple talaq judgment of the Supreme Court is a partial victory for Muslim women since it declares instantaneous triple talaq as unlawful, but not unilateral triple talaq. Even in the case of the former it does not declare instantaneous triple talaq as unconstitutional but only unlawful and that is a significant difference. Indian courts, even in respect of legislated laws have not been very encouraging when it comes to personal laws being challenged on the grounds of discrimination and dignity of women.
The only clarity about the “triple talaq judgment” in Shayara Bano v Union of India and others is that instantaneous triple talaq has been struck downby the Supreme Court. This article attempts to throw some light on the judgment’s logic, meaning, and implications.
The immediate questions that come up are: Does the judgment ban only instant triple talaqor all kinds of talaq? Does it hold instantaneous triple talaq as constitutionally bad? Does the Supreme Court hold that personal laws can be tested on the anvil of constitutional law? Has the Supreme Court said anything new or has it merely repeated what it had stated in earlier judgments— especially in the case of Shamim Ara?1 Most importantly, what is the way forward?
Counterproductive in the Long Run
While the judgment needs to be welcomed for taking a small step in favour of women’s rights, even the much hailed opinion of Justices Nariman and Lalit remains what I would call a “safe” judgment. They struck down talaq-el -biddat on extremely narrow constitutional grounds when they had the opportunity to strike it down on a variety of grounds making it a case of lost opportunity for gender justice. I will try to explain herein why, in fact, the majority judgment may even prove to be counterproductive in the long run.
Of course, there can be a debate as to whether the judiciary should at all intervene in matters of personal law or whether this should be left to the legislature. Even when it comes to the legislature, the issue would still be about whether the legislature should step in only when the community demands it or should it even otherwise carry out its “obligation” under the Fundamental Rights so asto bring about reforms in religious practices and law. The other important factor is whether, with the growing clout of the Bharatiya Janata Party (BJP) and the Rashtriya Swyamsevak Sangh (RSS) one should call for changes in personal laws of minority communities at all, as this can be used as a stick to beat them with and become a vehicle for the majoritarian agenda.
I do not go into these debates in this article. However, I wish to make my position clear because some of my conclusions are coloured by my opinion on these issues. I do believe that when it comes to gender equality, the constitutional courts should and do have the power to strike down laws—personal or otherwise—which are arbitrary, discriminatory, or against the broader framework of Article 21,that is,against the dignity of women. I am also firmly of the view that no such discrimination, arbitrariness, or erosion of dignity can be permitted on the grounds that a particular practice or law is an essential or non-essential part of that religion. Once any provision of a “personal law” is found to violate a constitutional mandate, it needs to go. Laws, personal or otherwise, need to be tested on the anvil of the Constitution and not on the basis of whether that law is based on a true interpretation of a particular religious text.
I also believe that all “personal laws,” whether Hindu, Christian, Muslim or Parsi, in varied ways discriminate against women. When most of the political parties or fundamentalist groups speak about a uniform civil code (UCC), they are concerned with “uniformity” and not with “gender justice”. We can thus end up having a UCC which uniformly oppresses women. However, if, at some stage, a uniform law which removes all gender discrimination as well as discrimination on grounds of sexual orientation is brought in, I would welcome such a law. That, I do not see such a model law being enacted even in the distant future, is a separate issue. In any case, at present, we are left with judicial intervention for striking down pernicious personal laws, and it is in this context, that I am disappointed with the present judgment.
Issues before the Court
A constitution bench of five judges decided the case. Three separate judgments were given. The first by Justice Khehar and Justice Nazeer, the second by Justice Nariman and Justice Lalit, and the third by Justice Kurian Joseph. As a result, there is no majority judgment and only those aspects of any of the judgments which have the affirmation, in aggregate, of at least three judges can be said to be laying down the law.
All the five judges agree that the only issue to be decided concerns talaq-ul-biddat or what is commonly known as instantaneous triple talaq. They do not venture into the legality or constitutionality of other forms of unilateral talaq or other aspects of Muslim personal law such as polygamy.
The common meeting ground of all five judges (as accepted by lawyers on both sides) was that personal laws can be challenged only if they have been legislated and not if they are purely in the realm of non-legislated practices. It was also agreed by all sides that talaq-e-biddat was a pernicious practice. The question was whether it could be struck down by the court.
Forms of Talaq
Talaq-e-biddat is practiced only by Sunni Muslims and that too only those Sunni Muslims who belong to what is known as the Hanafi School. Sunnis are the majority among Muslims in India and amongst them, an overwhelming majority belong to the Hanafi school. Crores of Muslims in India would consequently be affected by this judgment.
Under the Islamic law, two other methods of talaq are also recognised, namely talaqahsan and talaqhasan. All the three forms of talaq are unilateral (that is, they do not require the consent of the wife) and can only be exercised by Muslim men. Talaqhasan and talaqahsan, however, are not instantaneous and require a certain time frame for them to become effective. They are also revocable during this time period. Talaqahsan consists of a single pronouncement of divorce made during the period between menstruations followed by abstinence during the period of iddat. Thus, it takes effect only at a future date. Talaqhasan consists of three pronouncements made during successive tuhrs (period between menstruation) and no intercourse taking place during this period. Talaq-e-biddat consists of three pronouncements during a single tuhr, whether in one sentence or in separate sentences. It takes effect immediately. Talaqahsan and talaqhasan are spread over time, arerevocable, and are also subject to a process of reconciliation. But talaq-e-biddat occurs at one go, is not revocable, and not subject to any reconciliation attempts. Talaq, its forms,its legality and propriety have been much discussed in India by Muslim scholars and since at least the last hundred years— by various courts.
Earlier Views of Supreme and High Courts
Initially, the courts were of the view that talaq-e-biddat, while being a pernicious practice was legally valid. The argument was that “talaq-e-biddat was good in law but bad in theology.” Of late, the Supreme Court and the various high courts have been laying down strict conditions under which talaq can be held to be valid and this culminated in Shamim Ara’s case (supra) in which the apex Court held talaq-e-biddat to be unlawful. It observed: “13…The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and wife by two arbiters- one from the wife’s family and the other from the husband’s, if the attempts fail, talaq may be effected. In Rukia Khatun Case the Division Bench stated that the correct law of talaq as ordained by the Holy Quran is : (i) talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the other from the husband by his. If their attempts fail, talaq may be effected. …We are in respectful agreement with the above said observations made by the learned Judges of the High Courts.”
The Court also affirmed the earlier view of Justice Krishna Iyer when he was a high court judge observing: “..The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions…It is a popular fallacy that a Muslim male enjoys, under the Quoranic law, unbridled authority liquidate the marriage.” In Shamim Ara’s case, the Supreme Court held that since in instant talaq there is no scope for reconciliation, nor can reasons for such talaq be tested, such talaq would be bad in law. This has also been followed by a number of high court judgments which say the same. Justice Khehar (alongwith Justice Nazeer) felt that Shamim Ara was not good law while the others agreed with the Shamim Ara observations.
Muslim women on the other hand have to take recourse to Dissolution of Muslim Marriages Act, 1939 which requires them to approach the Court for divorce. All the judges agreed that though this form of talaq is not mentioned in the Koran, it has been practiced across the world for almost 1400 years. Justice Khehar also relied on legislations in a number of countries (theocratic and otherwise) banning instantaneous triple talaq. He drew two conclusions from this. First, the fact that a large number of countries had prohibited talaq-e-biddat was proof of it being a very widespread practice amongst the Sunnis. Secondly, Justice Khehar (along with Justice Nazeer) also came to the conclusion that this also showed that it can only be prohibited by a legislation and not by judicial action.
Powers of Constitutional Courts
It is important to look at what the courts, most importantly the Supreme Court, can or cannot do under our Constitution. Article 13 of the Constitution provides that all existing laws at the time of the Constitution coming into force which are inconsistent with the fundamental rights chapter of the Constitution, shall be void to the extent of inconsistency. Similarly, in the future, no law which takes away or seeks to abridge any right conferred by the Fundamental Rights chapter shall be passed in the future. Right to equality, right to non-discrimination, and right to life and liberty are part of the Fundamental Rights chapter. The question that still remains is that while a law in violation of the fundamental rights can be declared as void, how do you define a law? More particularly, the question is whether personal law can be considered as “law” for being tested in the context of fundamental rights. Article 13 (3) (a) states that “ ‘law’ includes any ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law.”Therefore, even a custom or usage which is in violation of the fundamental rights can be declared as void or unconstitutional.
At first glance, it would appear that personal laws which are essentially based on custom or usage would be “law” and susceptible to the rigors of the fundamental rights chapter. Thus, any personal law which is discriminatory towards women should not only be subject to constitutional rigor, but also be declared unconstitutional because discrimination against women is in violation of the fundamental rights. Forget instantaneous triple talaq, but any kind of unilateral talaq, or polygamy, or principles of other personal laws including Hindu law, which discriminate against women, should have been declared unconstitutional a long time ago. It is important to remember that the rights to pronounce talaq (instantaneous or otherwise) and to indulge in polygamy are rights only conferred on men and not women. Similarly, under Hindu law the father is declared as the natural guardian and only after him is the mother declared a natural guardian. Take for instance the Hindu Marriage Act which allows a man to marry if he has completed 21 years of age but a woman to marry if she has completed 18 years of age. Discriminatory practices against women are prevalent across various personal laws.
While courts (including the Supreme Court) are in no position to formulate a uniform civil code (gender just or otherwise) one expected the Constitutional courts to strike down discriminatory aspect of the personal or family laws. But by and large the high courts and Supreme Court despite giving regular homilies on equality of women have failed to declare such laws as unconstitutional. This opportunity has again been lost in the triple talaq case.
Does the 1937 Shariat Act Codify Muslim Personal Law?
Since it is generally agreed that personal laws which had not acquired a legislative flavour, that is, those personal laws not recognised through a legislation cannot be tested on the anvil of fundamental rights, the first issue was whether Muslim personal law had at all been legislated or not. In effect this required consideration on whether the Shariat Act, 1937 amounted to the Muslim Personal law becoming, or being metamorphosed into legislation. If the answer is yes then all aspects of Muslim personal laws could be tested against the Constitution. If the answer is no then they could not be. According to Muslim Personal Law Board, the 1937 Act was not meant for enforcing Muslim personal law which was enforceable in any case by itself but to do away with custom or usage which is contrary to the Muslim Personal Law.
Section 2 of Shariat Act, 1937 reads: “2 Application of Personal law to Muslims. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat, maintenance, dower and guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”
Justice Khehar (alongwith Justice Nazeer) and Justice Joseph held that the Shariat Act 1937 did not convert the Muslim personal law into a legislated enactment; that it remained uncodified and therefore could not be tested on the grounds of Constitutional violation. They held that it was enacted not to codify Muslim Personal Law or to make it into a legislative fiat but to clarify that non Islamic customs and usages which had crept into Muslim law would no more be held valid. On the other hand, Justices Nariman and Lalit held that all forms of talaq recognised and enforced by Muslim personal law are also recognised and enforced by the Shariat Act.
The judges observed that “it is very difficult to accept the argument on behalf of the Muslim Personal Law Board that Section 2 does not recognise or enforce triple talaq. It clearly and obviously does both, because the section makes triple talaq the rule of decision in cases where the parties are Muslims.’” According to Justice Nariman, the Shariat Act codified the Muslim personal law and therefore the provisions of Muslim personal law were liable to be tested on Constitutional grounds and if found to be in violation of the fundamental rights chapter were liable to be struck down.
What is crucial here is that the three judges have held that Muslim Personal Law did not get codified, or to use their words metamorphosed into a legislation, and therefore could not be tested on the touchstone of the Constitution. Justice Khehar and Nazeer concluded that in view of this, instant triple talaq which continued to be part of the personal laws could not be held unconstitutional. Justice Kurian Joseph, on the other hand, while agreeing with Justice Khehar that the Shariat Act, 1937 did not codify Muslim personal law came to the conclusion that instant triple talaq was against the tenets of the Quran and was thus not part of the personal laws and therefore at the highest amounted to custom or usage which was pernicious and not part of Muslim personal law and thus bad in law. He therefore agrees on the fundamentals with the judgment of Justice Khehar but disagrees on the details. The logic used is that there are various sources of Islamic law but that the Quran is the main source while all other sources are supplemental.
If Quran prohibits a practice, such a practice cannot become part of Islamic law or Shariat merely because other sources permit it. According to Justice Joseph, the Quran prohibits or frowns upon instant triple talaq and therefore instant triple talaq cannot be considered as part of Shariat. Therefore, since the 1937 Act says that the shariat is the rule of decision in matters including talaq and since instant triple talaq was never a part of the Shariat, it has to be prohibited. The prohibition here flows from the reading of the Shariat Act and not from applying principles of the Constitution of India. Justice Nariman, on the other hand concludes that the Shariat Act, 1937 converts the Muslim personal law into a legislated law and thus it can be tested on the anvil ofconstitutionality. Having thus held, thejudge should have tested triple talaq to see whether it is discriminatory towards women or whether it is in violation of dignity of women. Triple talaq is not available to women and is on the face of it discriminatory. Even talaq is violative of the dignity of women for various reasons including the repeated observations of the Supreme Court over the years which imply that if a woman is not “obedient” or “docile” it may be a good ground for talaq. This is nothing else but reaffirmation of patriarchal values. These should have been tested at least by Justices Nariman and Lalit since they did go into the question of the constitutionality of triple talaq. The opportunity was however missed.
Does Arbitrary State Action Violate Fundamental Rights?
Justice Nariman treads a narrow but largely uncharted territory. The earlier approach of the Supreme Court was to hold that the fundamental right to equality is violated if the state discriminated against a group without valid reasons. This interpretation was given an expanded meaning and at least since 1974 the Supreme Court has been holding that even arbitrary state action (without being necessarily discriminatory towards a group or section) would also be an antithesis of equality. The courts could strike down a state action as being in breach of Articles 14 or 15 not only if it was discriminatory but also if it is arbitrary.
State action can be of varied kinds. In the Macdowells case2 the Supreme Court held that while ordinary state actions could be challenged as being arbitrary or discriminatory, a state action which is legislative can only be challenged under Articles 14 and 15 of the Constitution if it is discriminatory and not merely because it is arbitrary. In the triple talaq case, Justice Nariman (with Justice Lalit) took a constitutional stride by observing that the Macdowell case was wrongly decided and a legislative action could also be challenged as being manifestly arbitrary. The Court observed, “Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/ or without adequate determining principle. Also when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.” On this aspect Justice Joseph Kurian agrees with Justice Nariman. In terms of constitutional jurisprudence, this is a major breakthrough and advance. Three of the five judges (and thus the majority) hold that legislation can be challenged as being in violation of equality clause even if it is not discriminatory as long as it is arbitrary.
But this is where the concurrence stops because Justice Joseph holds that in the present case since the Islamic law has not been given legislative colour, there is no question of testing it on the grounds of being arbitrary. Justice Nariman on the other hand proceeds ahead and holds that triple talaq which is part of the legislated Shariat Act is arbitrary and thus needs to be struck down.
While this is a leap forward constitutionally, it hardly takes the case ahead in terms of the Muslim Personal Law. According to the majority, the Muslim Personal law has not been metamorphosed into legislation and thus it cannot be challenged as being unconstitutional. Tomorrow, if polygamy or other forms of unilateral talaq are challenged and the court feels that they are not against the Quran or Hadith, they will be held to be legally valid practices irrespective of whether they are arbitrary, discriminatory or against the dignity of women.Jurisprudentially the present case does not advance Muslim women’s cause even a wee bit. In terms of talaq-e-biddat, it only reiterates what the Supreme Court had already held in the case of Shamim Ara. Justice Khehar’s opinion (supported by Justice Nazeer) is extremely curious to say the least. It also suffers from major contradictions. On one hand it holds that instant talaq is part of the Muslim Personal Law. He further goes on to hold that personal laws are themselves fundamental rights. Then he proceeds to say that, of course a law should be passed prohibiting instant triple talaq.
The problem is if triple talaq being part of fundamental rights as he says is prohibited through legislation, such legislation itself can be challenged as being violative of fundamental rights. In fact such a legislation by his own logic would be bad in law as it would be in violation of fundamental rights. To top it, he grants injunction from the exercise of a right, which according to him is a fundamental right, for six months to begin with. This is unheard of and jurisprudentially unprecedented and untenable. It was also argued that Article 25 of the Constitution which protects religious freedom as a fundamental right would in turn protect talaq-e-biddat. The Supreme Court has time and again held that essential religious practises are protected by this fundamental right and cannot be tampered with. However Justice Nariman held that as regards talaq-e-biddat is concerned, it is only one form of talaq and the Hanafi school itself treats it as sinful but something to be tolerated. Justice Nariman therefore concluded that this form of talaq cannot be treated in any case as an essential religious practice. Justice Nariman held that obviously in instant talaq such attempts of reconciliation have no scope and such instant triple talaq would be treated as valid even if it was not for any reasonable cause. In view of this, he held that instant triple talaq is manifestly arbitrary and therefore bad.
The judgment through majority holds that un-legislated personal law does not have to pass the constitutional test but is only required to pass the religious test. It is irrelevant whether such a personal law is discriminatory or against the dignity of women. As long as it can be shown that the particular law flows from religious tenets it is to be held as valid. This is a major impediment for future actions especially against non-legislated personal law, which is what, according to the majority judgment, the Muslim personal law by and large is.
On the other hand, the constitutional test can be applied for legislated personal laws such as the Hindu Marriage Act, Succession Act, Parsi Marriage and divorce law, Christian Marriage and Divorce law, Indian Succession Act, etc, and this judgment add an additional constitutional test, namely arbitrariness, for deciding the validity of such laws. Of course we will have to see how this works out in future when such laws are challenged. The experience of Indian courts even in respect of legislated laws has not been very encouraging when it comes to personal laws being challenged on the grounds of discrimination and dignity.
While the judgment does declare instantaneous triple talaq as unlawful, it neither declares unilateral triple talaq as unlawful nor does it pave the way for doing so. The majority judgment declares instantaneous triple talaq as unlawful but it does not declare it as unconstitutional–the difference being quite significant. Though the judgment does advance the cause of gender justice on the issue of instantaneous triple talaq it does not open the doors of judicial review in other matters of the Muslim Personal Law. While the opinion of Justices Nariman and Lalit does find instantaneous triple talaq as being arbitrary and therefore violative of constitutional guarantee of equality, this opinion does not find (in fact does not go into the issue) of instantaneous triple talaq as discriminatory towards women.
However the judgment is still a partial victory for Muslim women for two reasons. First, five Muslim women facing all odds were able to take on the might of the fundamentalists upto the Supreme Court and this by itself is a major success. Second, the amount of publicity and buzz the case and the judgment has generated, including favourable interventions by various women’s organisations working with Muslim women, will go a long way in empowering Muslim women. Unlike the case of Shamim Ara the present one has been discussed in nooks and corners of the country. A large number of Muslim women are now aware that instant triple talaq is not legal. Immediately after the judgment, there were reports of Muslim women approaching police stations to demand action against their husbands for giving them instant triple talaq. The question is not whether approaching the police station is the right procedure to be adopted but that these women feel enabled and invigorated by the knowledge that the highest court has recognised certain rights, and declared a practice as pernicious.
First published in SabrangIndia.
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