At 10:30 am on Tuesday, a 5-judge bench of the Supreme Court assembled to deliver their verdict in the Triple Talaq case. Courtroom 1, the Chief Justice’s court was quite literally overflowing with lawyers, journalists and curious onlookers, all eagerly awaiting the court’s verdict, preventing the bailiffs from shutting the doors.
The madding crowd (including myself), and all those following the proceedings remotely, were subsequently left confused as CJI JS Khehar pronounced his judgement first, but this turned out to be a minority judgement and therefore, NOT the legal position of the Supreme Court.
It turned out that the judges did not have a unanimous decision and that there were different opinions among them. This meant that the final order of the Supreme Court was based on concurring judgements of 3 out of the 5 judges, who were hearing the matter, expressed in 2 separate opinions. According to this order, triple talaq (the term used by the court to refer to talaq-e-biddat, the instantaneous form of divorce) was to be set aside.
Still confused? That’s entirely understandable. After having gone through the 395 pages of the judgements, there’s still a lot that isn’t clear. But we can now answer some of the big questions everyone has regarding this landmark decision.
Also Read: Triple Talaq: 5 Judges, 3 Views, 1 Order, But Why No Clarity?
NOTE: The Supreme Court in this case had restricted itself to ruling on one particular form of divorce among Muslims, that of talaq-e-biddat – where a husband can unilaterally, irrevocably and instantaneously divorce his wife by pronouncing talaq, whether verbally or on paper. ‘Triple talaq’ as a term doesn’t strictly refer only to talaq-e-biddat. However, all three judgements use the term ‘triple talaq’ to refer to talaq-e-biddat, ie, instant talaq, and we have done the same here for consistency.
What Was the Supreme Court Supposed to Be Deciding Here?
The case before the Supreme Court was a combination of multiple petitions. The primary petition among these was filed by a Muslim lady named Shayara Bano, who wished to contest her husband’s decision to divorce her in 2015, which was conveyed to her in written form.
Bano argued that this divorce was void, since triple talaq was not a valid part of Muslim personal law (or Shariat). She also asked for a declaration that talaq-e-biddat is unconstitutional. The other petitions were also for similar issues, and so the court clubbed them together, a consolidated case to decide on the validity of triple talaq as a practice.
The basic questions before the court were, therefore:
- Is triple talaq consistent with the Constitution of India?
- Is triple talaq consistent with Muslim personal law?
To answer these questions, the court also had to answer these additional questions:
- Does triple talaq have the status of statutory law (prepared by the legislature) or uncodified personal law? WHY: Under existing Indian case law, laws prepared by the legislature have to be consistent with fundamental rights in the Constitution. However, uncodified personal laws do not need to comply with fundamental rights. Therefore, if triple talaq was just uncodified personal law, it could not be struck down as unconstitutional.
- Is triple talaq an essential religious practice for Muslims? WHY: Under Article 25 of the Constitution, all citizens have the right to practice their religion and the courts can’t pass judgement on their practices. However, this protection only applies to essential religious practices. If triple talaq were an essential religious practice, the Supreme Court could not strike it down.
Why Were Five Judges Hearing the Case?
As these questions involved interpretation of the Constitution, a five-judge “Constitution Bench” was put together to hear the case. Under Article 145(3) of the Constitution, cases involving interpretation of important Constitutional law matters have to be heard by benches of at least 5 judges.
This was of course to have important consequences, as the majority (3/5) held that triple talaq was struck down, while the minority (2/5, including the CJI) held that the courts could not strike down triple talaq, and so the government needed to pass a law to reform it.
But Only the Majority Matters, Right?
That’s broadly true. Minority judgements can be used for persuasive value in subsequent cases, if well-written, but otherwise have no binding value in law.
However, at the end of the day, it is the majority decision that reflects the final legal position on the issues raised in a case, and what we really need to concern ourselves with.
So What Did the Majority Decide in This Case?
As mentioned, the majority decision was that triple talaq is to be set aside. This means that triple talaq is not a valid method to divorce someone.
That Means That the Majority Agreed on Everything, Right?
No, actually. The majority agreed on the outcome, but not on why triple talaq should be set aside.
Justice Kurian Joseph held that triple talaq is anti-Quran, and therefore cannot be part of Muslim personal law (reiterating a position taken by the Supreme Court in 2002 in Shamim Ara vs State of UP). If it could not be part of Muslim personal law, he reasoned, it was not protected under Article 25 of the Constitution, and therefore the court could strike it down.
Justice RF Nariman (supported by Justice UU Lalit), on the other hand, held that triple talaq violated Article 14 of the Constitution of India, because it was “manifestly arbitrary”. They also relied on the Shamim Ara case, using it to say that triple talaq was not a valid religious practice, and therefore arbitrary.
Does That Make Any Difference?
There is a lot of significant confusion in the legal community about what precedent this case now sets. While triple talaq has been struck down for sure, there is a lot of contradiction between all the judgements, including those which make up the majority decision.
Take, for instance, the question of whether triple talaq is part of statutory law or uncodified personal law. According to Justice Nariman (and Justice Lalit), triple talaq is part of statutory law since it is mentioned in a 1937 Act, which made various legal issues between Muslims subject to Muslim personal law (Shariat). Because of this, they were able to reach their conclusion that triple talaq was unconstitutional.
Justice Kurian Joseph, however, found that the 1937 Act did not bring triple talaq within the ambit of statutory law, and so triple talaq remained part of uncodified personal law. In this, he ended up agreeing with CJI Khehar (and Justice Ahmed Nazeer) and expressly stating that he didn’t think triple talaq could be tested against Article 14 of the Constitution.
This leads to the bizarre possibility that this case can be cited as a precedent that triple talaq has been struck down, partially because it is considered unconstitutional AND it can also be cited as authority to say that Muslim personal law cannot be considered unconstitutional. It is difficult to recall any other case which is so confused about such central issues.
Wait, What About Shayara Bano? How Does This Affect Her?
If Shayara Bano and the other petitioners needed a definitive statement about the constitutionality of triple talaq, then yes, this confusion could have affected their cases.
Thankfully, however, their cases do not depend on this issue. For them, they just need a majority finding that talaq-e-biddat is invalid in Muslim personal law. The judgements of Justice Kurian Joseph and Justice Nariman arguably manage to do this, based on their finding that divorce in Muslim law cannot be instantaneous and irrevocable (as talaq-e-biddat is), as per the decision in the Shamim Ara case.
Does the Majority Order Benefit Women Divorced Before 22 August 2017?
Judgements of the courts are normally prospective, that is, they apply from the date they were published. If a judgement is to apply to a time before its publication, it needs to be specified as retrospective.
Since neither Justice Kurian nor Justice Nariman have said their judgements are retrospective, in the ordinary course of things, we would have said that triple talaq is only struck down from this day forth.
However, both decisions look at things from a historical perspective, which should mean triple talaq is considered invalid from a point in the past, which would benefit divorcees from that date.
Justice Nariman declares the portions of the 1937 Act, which gave sanctity to triple talaq, to be unconstitutional. Justice Kurian Joseph emphasises how law needs to change and notes that the Shamim Ara case in 2002 was a result of findings in many other cases over the decades, that triple talaq was invalid.
At the very least, this should mean that any Muslim woman who was divorced using triple talaq since 2002 (when Shamim Ara was decided), should be able to successfully argue for restitution of their marriages.
Wasn't There Something About 6 Months, and the Govt Making a Law Against Triple Talaq?
All of that is irrelevant.
CJI Khehar’s judgement said that the courts could not strike down triple talaq, because triple talaq was an integral part of Muslim personal law, and personal law was protected under Article 25 of the Constitution in the same way fundamental rights are. As a result, he said that to reform triple talaq, the Parliament would need to pass a law to do so.
As a way to help this process along, his judgement included a 6-month injunction against the use of triple talaq for divorce, which would be extended if the government decided to pass a law to ban the practice.
However, because CJI Khehar’s judgement ended up being a minority judgement, none of that matters. Unfortunately, several media outlets reported CJI Khehar’s opinion as the overall decision of the court since this was read out first – some of them unhelpfully continued to report it even after it became known that this was the minority judgement.
So the Govt Doesn't Need to Pass a Law on Triple Talaq?
It has been struck down with immediate effect by the order of the court.
Can the Govt Use This Order as a Launching Pad for the Uniform Civil Code (UCC)?
This case was always a political goldmine for the government. Regardless of which opinion had been the majority verdict, the Centre would have had the ability to exploit it for political gain, since all opinions at the end of the day recognised that the legislature could pass a law regulating or banning triple talaq under Article 25(2) of the Constitution.
Justice Nariman’s judgment has the potential to be even better for the government, since it recognised that aspects of Muslim law mentioned in the 1937 Act (succession, marriage, divorce, maintenance, gifts, trusts, etc) were elevated to the level of statutory law, and therefore needed to comply with fundamental rights under the Constitution.
However, as mentioned earlier, on the matter of Muslim personal law as statutory law, the majority view is actually the opposite of Justice Nariman’s, which means that it should continue to be protected as uncodified personal law.
At the end of the day, however, the Centre has got validation to legislate on Muslim personal law issues, and will feel free to cherry pick concepts from the different opinions that will suit it, which should all help build momentum for a UCC.
Is This a Good Result?
As with everything about this judgment, a definitive assessment is not easy to make. The judgment is great insofar as it puts to bed a practice which was discriminatory, arbitrary and an affront to the dignity and well-being of Muslim women.
Also Read: SC Strikes Down Triple Talaq, But Does Little for Gender Justice
The judgment is also good because the majority managed to reject some extremely dangerous views expressed by the minority. CJI Khehar’s minority judgment arrives at some problematic conclusions, including that
- personal laws have the same status as fundamental rights;
- any practice sanctioned by a religion, no matter how discriminatory or arbitrary, can be considered protected against challenge in the courts; and
- the Supreme Court can, in the interests of justice, pass injunctions against the exercise of what the CJI (dubiously) considers fundamental rights.
That is not to say it is all good. We have already touched on the confusions the judgment has created. Justice Kurian’s judgment plays it safe, but in doing so, doesn’t seem to arrive at the right decision on the statutory law point.
Justice Nariman seems to get the statutory law point right, and boldly and thoroughly asserts an entirely new basis on which to hold something violative of Article 14 (manifest arbitrariness), but then spends minimal time applying that to the practice of triple talaq.
He also avoids conducting an analysis of triple talaq as discriminatory, which would have been of far more use in helping empower women against gender discrimination.
In sum, the right thing has been done. But how exactly we got here, and what it fully means for the future, remains a bit of a mystery.
(#TalkingStalking: Have you ever been stalked? Share your experience with The Quint and inspire others to shatter the silence surrounding stalking. Send your stories to editor@thequint.com or WhatsApp @ +919999008335.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)