NEW DELHI: The Constitution is a social and political text. A judicial review on competing claims on such a document will inevitably have effects that are both social and political. As I argued earlier in The Citizen (article can be read here)the essence in this case lies in four diverse claims that were made.
First, the Government position of declaring such a practise as unconstitutional, while making clear that this step is one towards implementing a uniform civil code. For them conceptually, uniformity would serve as equality.
Second, that gender must be viewed as secular identity and therefore such a practise must be seen to violate equality, non-discrimination and the right to dignity clauses of the Constitution.
Third, that a social movement leading to inward introspection and possibly legislation and not judicial intervention must be the way to bring change in religious affairs, (something which should have been a long time ago !).
Four, the Muslim Personal Law Board’s claim of hegemony on personal law resting on the argument that the Constitution protects personal law from any challenge under the fundamental rights chapter (i.e. equality and non-discrimination) and that constitutional freedom of religion protects their right to personal law.
As we now know, The Supreme Court through a fractured mandate correctly found the practise of Talaq-e-Biddat or instantaneous Talaq to be unconstitutional and invalid. Let us frame legal questions which will help understand what has been decided in this land mark judgment .
(A) Is Triple Talaq in the domain of personal law guided by the Quran and Hadith or statutory law under the Muslim personal Law (Shariat) Application Act, 1937 ?
Chief Justice J.S. Khehar, Justice Ahmed Nazeer joined by Justice Kurien Joseph’s judgement (paragraph 5 of judgement) on this question form a majority and are of the view that the Muslim Personal Law (Shariat) Application Act, 1937 is not legislation that regulates Triple Talaq. The act of instant Talaq is one which is governed by personal law and is guided by four sources, which are Quran, Hadith, Ijma and Qiyas.
While, J. Joseph, though agreeing that Triple Talaq is not statutory law, held that this is a practise to be recognised in personal law. Relying on the earlier Supreme Court judgement of Shamim Ara vs State of U.P.. J. Joseph found that instant Talaq is not subscribed to by the verses of the Quran and therefore not an essential part of religion. Therefore, no constitutional protection can be given to such an act under the right of freedom of religious expression (paragraph 24). Finally, the order ends by saying “what is bad in theology is bad in law”.
Justice Rohinton Nariman and Justice U.U. Lalit form the minority view and held instant Talaq to be governed by Muslim personal Law (Shariat) Application Act, 1937 and therefore was an act that fell under Article 13 (3) (b), that is laws existing before the Constitution . Therefore, it was held that such laws can be tested under Article 13 (1),which states that all laws existing previous to the constitution can be challenged if violating provisions of the Constitution.
(B) Is Triple Talaq set aside and for what reasons?
Majority view- :J. Nariman and J. U.U. Lalit held that instant Talaq as recognised by the Sharia Act, 1937 is arbitrary and therefore antithetical to the right to equality guaranteed under the Constitution.
J. Nariman relying on Justice P.N. Bhagwati’s passage in Maneka Gandhi vs Union of India explained that right to equality as the founding faith of the Constitution. Further, he held the thread of reasonableness runs throughout the fundamental rights chapter and any state legislation that is manifestly arbitrary can not be said to be reasonable.
Manifest arbitrariness is when the legislature enacts something which is either capricious, irrationally, excessive or disproportionate. And equality being a dynamic concept with many dimensions must ensure reasonable and fair treatment, therefore any state action which is manifestly arbitrary must be struck down. The judges held that the act of Triple Talaq is irrevocable, instant and irreconcilable and therefore such a whimsical and one-sided act must be arbitrary and against the equality clause under the constitution. And therefore, recognised section 2 of the 1937 Act recognising Triple Talaq as being void.
J. Joseph, as stated above, while disagreeing with instant Talaq being governed by the 1937 Act, agreed with this form of Talaq as being void. For him such an act is not as per the verses of the Quran, for this proposition he relied heavily on the Shamim Ara case previously decided by the Hon’ble Supreme Court. Thus, he held that such an act cannot be protected under the freedom of expression, a proposition that even J. Nariman upheld in his order. J. Nariman relying on Javed vs State of Haryana was of the view that Triple Talaq is not an essential religious practise and consequently not protected under the freedom of religious expression (para 25).
Minority view- Chief Justice J.S. Khehar with Justice Abdul Nazeer refused to strike down the act of instant Talaq as being violative of the constitution. The reasons they gave were first, a challenge on the grounds of right to equality, life or on grounds of discrimination can only be made when state action infringes upon any of the above rights. In this case it is not state made law (statutory law) which the petitioners claim violates the rights of women but are clauses of personal law. That is Shariat law is not based on any state made legislative action, though the Petitioners did make the case that the Muslim personal Law (Shariat) Application Act, 1937 is a statute that embodies personal law.
The minority judgement believed the aforesaid Act only recognises Muslim personal law much like Article 25 recognises the freedom to express religion, it does not provide the manner and substance of the law, which is derived from the four sources of Quran, Hadith, Ijma and Qiyas. The Chief Justice argued that the act of Triple Talaq is protected under the freedom of religion. He held that religion is a matter of faith and not logic and that the relationship between tenants of modernity and reform in religious affairs must not be through judicial review in courts but rather a process initiated by the Parliament of the Country.
The striking down of Instantaneous Talaq is a welcome move. The expansion of the use of the doctrine of arbitrariness to strike down state acts violating the right to equality is one that will be carefully studied. In fact, J. Narimans order also holds that the infamous Raj Bala case which held that the Haryana legislation barring people from not contesting elections if they do not have a toilet or lack certain educational qualifications is not good law. For the Court in Raj Bala had held that the doctrine of arbitrariness cannot be used to strike down such a legislation as being void and violative of the equality clause of the Constitution (para 53).
Now, the political question that will be thrown up in the coming days is whether uniformity of personal laws is the way ahead ? And what is the meaning of religious expression in our plural society ? Chief Justice Khehar who did weigh in to dissuade the use of judicial review as means of shaping personal law, but was also of the view that uniform civil code is a matter that the legislature may contemplate when considering the realm of religion and law. The other judges did not discuss this issue.
The highlight are two, first, in terms of the scope of judicial review. J. Nariman’s resurrection of the right to equality as one which is expansive , all pervasive and dynamic now more than ever reminds us why the equality clause is and in the coming times will be at the centre of the social revolution goal of the Constitutional text.
And second, the protection of plural religious identities in India and the citizens right to express themselves through personal law. In the coming time the political argument for homogeneity and uniformity as the only manner of fulfilling the ideal of an equal society will be aggressively pushed. I personally feel a hurried move to legally enforce sameness would be antithetical to the Constitutional ideal of unity in diversity.
For now, however, we must celebrate this judgement of the Supreme Court. The abhorrent act of instant Talaq is one which should have ceased to exist a long time ago, and eventually justice has finally been delivered.
(Abhik Chimni is a Delhi based lawyer)