Thirty-two years after the government of Rajiv Gandhi overturned the the apex Court’s verdict in Shah Bano Case, the Apex Court has reaffirmed its commitment to gender justice through the Shayara Bano case (2017). The fivejudge bench delivered a 395-page judgment with a stunning 3-2 verdict, setting aside the Islamic practice of Triple Talaq (Talaq-e-Ibadat) which is a serious blow to the centuries-old dogmatic practice resulting in gender injustice. Justices Kurian Joseph, UU Lalit and RF Nariman delivered the majority Judgment whereas Chief Justice Khehar and Justice Abdul Nazeer dissented on the issue of Triple Talaq being unconstitutional.

While the majority judges agreed on the outcome of striking down instantaneous triple Talaq as unconstitutional, they took two different routes to reach that objective. While doing so, the judgment made forays into the domain of Islamic practice and held that instantaneous triple talaq is not essential to the practice of Islam and does not therefore benefit from the constitutional protection guaranteed under Article 25. With some disagreement, the entire bench conclusively held that the practice of instant Triple Talaq is unconstitutional.

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The majority view held that Triple Talaq lacks Quoranic sanction; hence it fails the test of fundamental right to religion. Justice Kurian did not go into the question of constitutionality, he decided with reference to the Shamim Ara case and the practice invalid. The dissenting opinion expressed by Chief Justice JS Khehar and Justice S Abdul Nazeer held that triple talaq “may be sinful”, but the court can’t interfere in personal laws which have the status of fundamental rights under the Constitution. The decisions rendered by the bench are correct but some incoherence does exist in terms of the logically examining the issue.

All three authors of the judgment have consciously avoided the question as to whether personal law is subject to the Constitution or not-though Chief Justice Khehar tried to explain that stature of personal law is that of a fundamental right. But he avoided a clear explanation. Marriage is one of the most important social institutions and any element of gender insensitivity or gender injustice disturbs the institution. Merely because a particular practice has been going on for long by itself cannot make it valid if it has been expressly declared to be impermissible.

The CJI-authored minority view held that the practice of Triple Talaq was not amenable to a challenge on grounds of Articles 14, 15 and 21, because these provisions are limited to State actions, whereas the practice regulated the conduct of private parties. In so doing, the minority opinion held that such practice was not inconsistent with constitutional values and fundamental rights, and directed the government to consider legislating on the issue.

According to Justice Kurian, Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937 does not per se set down the rules of talaq. The provision merely states that notwithstanding any custom or usage to the contrary, the law applicable to Muslims in matters including talaq shall be the shariat law or the Muslim personal law. The emphasis is laid on the non obstante clause with which the provision starts. It is held that the Act merely asserts and declares that customs and usages contrary to shariat will not apply and that shariat alone shall apply to parties who are Muslim.

There seem to be some inherent contradictions with respect to the Shariat Act, 1937. CJI Justice Kheher and Justice Joseph do not treat it as legislation, whereas Justice Nariman (speaking for himself and Justice Lalit) has termed it as a pre-constitutional legislative measure. In the majority verdict given by Justice Kurian Joseph, it was observed that the process of harmonising different interests was within the powers of the legislature and this power has to be exercised within the constitutional parameters without curbing religious freedom guaranteed under the Constitution. On the other hand, the majority view authored by Justice Nariman held that instant irrevocable Triple Talaq not preceded by efforts at reconciliation is unconstitutional, being violative of the right to equality and it smacks of arbitrariness.

Unfortunately, Justice Nariman has failed to explain as to how Triple Talaq is arbitrary. The abhorrent practice of instant Triple Talaq has not been discarded for being violative of Part-III of the Constitution but it is held that since the instant Triple Talaq is arbitrary hence it is hit by Article 14. The Constitution bench has missed a golden opportunity to revisit earlier cases of Narasu Appa Mali and Madhu Kishawar. In Narasu, the High Court held that personal laws were not subject to judicial scrutiny and cannot be examined for violating fundamental rights. The judgment deals with validity of triple talaq, yet the constitutionality issue was left unattended.

Justice Nariman strongly dissented with the CJI on the issue of the judiciary not being the right forum to dispose of such matters. According to him, the Supreme Court cannot refuse to decide when approached by a litigant under Article 32 against the violation of his/her fundamental rights, and roll the ball to Parliament’s court.

Quoting Constituent Assembly debates on Articles 25 and 44, the CJI held that personal law is part of the freedom of religion, which courts are duty-bound to protect. He also said courts are not supposed to find fault with provisions of personal law, which are based on belief, not logic. Personal law, he said, is beyond judicial scrutiny. He also turned down the central government’s argument citing international conventions, saying such conventions, if they were contrary to fundamental rights, cannot be implemented.

He did not agree that Triple Talaq is violative of public order, health and morality hence it is contrary to other fundamental rights such as the right to equality or the right to live with human dignity. Resultantly, his discussions completely evade the discriminatory, inhuman and derogatory practice of instant Triple Talaq. The flow of the minority judgment has thus got derailed and reveals that the judges failed to fathom the real issue which has disappointed many jurists. The dissenting opinion is based on rhetoric rather than sound jurisprudence or legal analysis.

In fact, the issue was more of discriminatory treatment meted out to Muslim women rather than that of arbitrariness. The personal laws, regardless of the fact that they are meant to preserve the plurality and diversity of the country, should be tested on the touchstone of the overarching goal of equality and gender justice.

Despite some contradictions in the judgment, it will usher a new era for the Muslim women in India who are living in a dark isolated space, treated as lesser humans by their own community and disowned by the Constitution in the name of religious autonomy. They have achieved a grand victory through Shayara Bano -a victory over the patriarchal orthodox elements of their own community.

(The writer is a Supreme Court Advocate)