By Rajeev Dhavan
04 September 2017
The Supreme Court’s recent judgment invalidating triple Talaq Case has been welcomed by secularists, progressive Islamists and Islam bashing communalists. Such divisions have become endemic to India. The arithmetic of the court — 3:2 in favour of invalidation — is upstaged by the algebra. Of the three, Kurian Joseph invalidated on Quranic grounds, whilst the other two judges — Nariman and Lalit — struck down triple Talaq on constitutional grounds.
The two dissenters (if they may be called that) did a tentative validation until Parliament intervenes (Khehar and Nazeer). But read as a whole, each judgment has its own peculiarities to produce flawed reasoning for an eminently satisfactory result.
The Khehar-Nazeer judgment is written in Khehar’s characteristic style – with 200 pages out of 272 pages devoted to lawyers’ arguments. The basic argument appears to be that the practice of Talaq-e-Biddat or triple Talaq can most certainly be stated to have originated “some 1400 years ago”. The fact that various Muslim countries banned it proves that its “practice.... was not limited to certain areas but was widespread”.
Consequently, “the practice of Talaq-e-Biddat has to be considered integral to the religious denomination in question, namely Sunnis, belonging to the Hanafi school. However, it begs the question as to whether it is a legitimated practice, especially when it has been tolerated though downgraded as sinful.
Khehar proceeds to declare that “judicial interference can be rendered only in such manner as has been provided for in Article 25 of the Constitution”. Further, personal law “being a matter of religious faith and not being state action, there is no question of its being violative of the...Constitution”. This is an over statement and evades the question as to whether triple Talaq is an essential practice of Islam.
With this hop-step and-jump, a strange result inures. Exercising the Supreme Court’s inherent power to do “complete justice”, Khehar believes that “the position can only be salvaged by way of legislation”, hopefully in six months.
Somewhat unrealistically, Khehar “beseeches different political parties to keep their individual political gains apart” to enact legislation. Till then Muslim husbands are expected to restrain themselves for 6 months. This seems somewhat absurd in every way, but satisfied Justice Nazeer who obviously wanted the practice to be upheld at least until legislation. He might have written a more thoughtful judgment.
In fact, there was only a majority of results. The Nariman judgment is anexample of touching one’s nose by going round the head. The judgment has two steps, first being: since the Shariat Act 1937 protected the “Shariat” from “custom”, “Shariat” was part of statutory law and the second is: statutes can be invalidated for being arbitrary — which triple Talaq undoubtedly was. As far as the second argument is concerned, Nariman had a score to settle because his own argument as lawyer canvassing this in the McDowell case (1996) did not find favour.
So Nariman, the judge, upholds the argument of Nariman the lawyer. To be sure, Nariman as judge does not hide this and, to that extent, must be feted for his candour. But as judge Nariman expends pages upon pages to construct his argument against his bête noir. Although I agree with Nariman on his second point, it could have been more compactly addressed.
Nariman’s first argument was to resolve a legal cul-de-sac. It has long been settled that "personal law" is not amenable to challenge for violation of fundamental rights. Sitting in a Constitution bench Nariman could have overruled this view, dealing with comments in another constitution bench as obiter. But instead, he swam on troubled water with too much aplomb.
He missed the wood for the trees by assuming that but for the Shariat Act 1937, Muslim law would not be enforced in India. The Shariat is not incorporated in 1937 Act by reference, but protects Sharia from custom – no more, no less. The consequence of Nariman’s view is that all Muslim law can be struck down if arbitrary. He stretches this to all forms of Talaq; and perforce all Sunni Muslim law. This is clever but over-stretched.
Judges as Pontiffs
The most judicious judgment is that of Justice Kurian, who interprets rather than invalidates Muslim personal law. He elaborates that triple Talaq is contrary to the Quran, which Islamic law forbids. At first blush, this places Indian judges of all kinds to become pontiffs of Islam. But this is consistent with Indian Law. Personal law (including Muslim) are part of Indian law as a part of the doctrine of “justice, equity and good conscience” (JEGC) — as continued by Article 372 of the Constitution.
JEGC has meant that personal law can only be interpreted in its own terms. At times, Indian courts have made what Gandhiji called "egregious blunders" in discharging this task of interpretation (such as on Hindu gains of learning and Muslim Waqfs for family). However, Anglo-Indian courts have been rightly entrusted with this task which includes examining the view of Muslim jurists. In that sense, Justice Kurian approached the issue in the right spirit of interpretation. If Justice Nariman’s view is taken, huge consequences beyond the issues in this case would result.
The real problem is that this case was forcibly put for argument by Justice Khehar during vacation. The bar rose to the challenge. But given time, a more thoughtful and less contentious determination would have taken place.