By Flavia Agnes
Aug 25, 2017
It is indeed surprising that the operative part of the elaborate and complex ruling comprising of three different and diverse judicial opinions captured in 395 pages is just one line: “By a majority of 3:2 verdict the practice of Talaq-e-Biddat — triple Talaq is set aside”. Justice Kurian Joseph’s opinion expressed in just 27 pages that clinched the issue.
He concurred with Justices Rohinton Nariman and Uday Lalit that the practice of triple Talaq does not form the core of the Sunni Muslim religion and helped it to acquire the status of a majority opinion. He also concurred with Chief Justice J.S. Khehar and Justice Nazeer that the personal laws of minorities are protected by the Constitution as fundamental rights, a clear statement against the enactment of a uniform civil code, contained in Article 44, which is a directive principle of state policy.
It was obvious that arbitrary triple Talaq had to go. No one had held it to be a desirable mode of dissolving a Muslim marriage, not even the AIMPLB. What was under contest was the most appropriate manner in which it could be done — through the courts, the legislature or through the Muslim clerics. On this critical issue, the verdict split.
Justice Khehar held that though triple Talaq is undesirable, since it is an integral part of the Sunni Hanafi faith — an unbroken tradition followed for 1,400 years — it was not possible for the courts to strike it down. But using the power under Article 142 of the Constitution, the CJI gave a six-month window for Parliament to declare the law and issued an injunction restraining Muslim husbands from pronouncing triple Talaq in the intervening period. A convoluted verdict, which creates more confusion than it solves. The sole Muslim judge on the bench, Justice Nazeer, concurred with this view. But fortunately for us this has become the minority view and no longer applicable.
The three other judges on the bench gave a clear verdict that triple Talaq is invalid. But here again opinions differed regarding the grounds on which it was done. The judgment delivered by Justice Rohinton Nariman (for himself and Justice Uday Lalit) held that since the word “Talaq” is mentioned in the Sharia Application Act 1937, it forms part of a statute and becomes “law in force”. Hence, it is amenable for being declared as unconstitutional. However, the Sharia Application Act does not mention the word “triple Talaq” or “Talaq-e-Biddat”. The views expressed by Islamic legal scholars are that a mere recognition of Muslim personal law by the Sharia Act does not give it a statutory status.
Justice Kurian Joseph, too, differed with this view and held that triple could not be tested against the touchstone of fundamental rights. He preferred to stay within the realm of Islamic law and examined whether instant triple Talaq forms an essential and core religious practice. Since Shamim Ara (2002) had already declared instant triple Talaq invalid, and had laid down the procedure for pronouncing Talaq, he had no hesitation in concluding that triple Talaq is not an essential core of Islamic law in India and hence invalid.
This position has been repeatedly advanced by me and hence today I stand vindicated. Since there was no media hype, the kind we have witnessed during the last two years since the Bharatiya Muslim Mahila Andolan (BMMA) flagged this issue and since the Narendra Modi government at the Centre, and its various chief ministers in states, as well as the ideologues of the RSS had not awakened to the plight of Muslim women as political capital, the historical ruling delivered by Justice Lahoti (who went on to become Chief Justice of India) went unnoticed. So, Muslim women and their supporters ignored it in their pursuit to get a decisive verdict from the Supreme Court. But beyond the hype, we have not advanced an inch from the earlier position which had held triple Talaq invalid.
Again, it is Justice Kurian’s concurrence of CJI’s opinion on freedom of religion that renders it a majority opinion today. According to Prof. Faizan Mustafa, Justice Khehar’s detailed judgment is a major milestone in the history of freedom of religion in India. For the first time in Indian judicial history, it is declared that personal laws are an integral part of freedom of religion guaranteed under Articles 25 and 26 which the courts are duty-bound to protect.
This hallowed status awarded to the Muslim personal law has warmed the hearts of the All Indian Muslim Personal Law Board (AIMPLB). The mandate of bringing reforms is today squarely in their court. The board had earlier issued an advisory that triple Talaq is sinful and had declared the correct procedure for pronouncing Talaq. Upon a directive from the CJI, the office-bearers of AIMPLB had filed an affidavit in court that a provision will be included in the Nikahnama (marriage contract) whereby the husband binds himself against pronouncing instant triple Talaq. But they were not willing to wal the last mile and declare it invalid. The need for Muslim husbands to bind themselves against this practice through a model Nikahnama continues to be relevant.
Unless the board gives a clear signal that it has accepted the verdict of the Supreme Court regarding triple Talaq, there is bound to be confusion within the community. This may provide an opportunity for Muslim-bashing by the Modi government, which has rejoiced over the verdict as though it is an anti-minority one, to usher in legislative reforms, a situation which the board wishes to avoid at all costs. However, in the absence of a clear stand and prompt action from the board, Muslim women’s groups such as the All India Muslim Women’s Personal Law Board and BMMA will be well within their rights to lobby with the government to enact a law to bring in clarity within the Muslim personal law.
When this happens, the board will find its back pushed against the wall. So now is the time to act.
Flavia Agnes is a women’s rights lawyer