The SC Ruling on Triple Talaq Is a Breakthrough: Indira Jaising

Shivangi Misra: What are your views on the Triple Talaq judgment? Will the verdict open the doors to challenging personal laws in future?

Indira Jaising (IJ): I do think so because, as I’ve been saying, the Court has held, in the past, introducing constitutional law into family law is like introducing a bull in a china shop. But for the first time in over thirty years in Indian constitutional history, two judges of the Supreme Court have said that this practice is unconstitutional, and that it violates Article 14 of the Constitution of India.

The moment you concede that a law dealing with family matters can be declared unconstitutional for violating any provision of the Constitution, there is nothing to stop the Court from declaring any other provision of any other family law as unconstitutional on the ground that it violates Articles 14, 15 and 21 of the Constitution. So, in that sense it’s a breakthrough.

SM: Do you think the judgment is a big step in the direction of gender equality in personal laws?

IJ: Well, I would be happier if the Judges had struck it (triple talaq) down on the ground that it violates the right to non-discrimination on the basis of sex. However, what they (the Court) have done instead is that they have struck it down on the ground that it is “manifestly arbitrary”.

SM: So according to you, this an incomplete judgment? There was scope for the judges to give reasons beyond "manifestly arbitrary"?

IJ: Every judgment leaves you with a feeling that something more could have been done. But the real question is, I believe as you yourself asked me earlier, will it advance gender equality?

Yes, it has the potential to advance gender justice, and I think its now up to the future generation of feminist lawyers to argue.

Several provisions of Hindu law, Muslim law, Christian law or Parsi law are unconstitutional. There are several writ petitions pending before the Court, which states that temple entry must be permitted to women in Sabarimalai. Obviously, the same question will arise then.

(NewsClick)