Professor Philip Bobbit gave five archetypes of constitutional arguments – Historical, Textual, Structural, Prudential and Doctrinal. Touching others superficially but relying on a doctrinal argument, a constitution bench of the Supreme Court vide a split decision in a close ratio of 2.6:2.4 has set aside the practice of dissolving marriage instantly through pronouncement of triple talaq (talaq-e-biddat). While Justice Khehar (writing for himself and Justice Abdul Nazeer), - the minority opinion, directed the Union of India to consider bringing in an appropriate legislation in this regard and injuncted muslim husbands from using ‘talaq-e-biddat’ for a period of six initial months, Justices Kurian Joseph and Nariman (writing for himself and Justice U.U.Lalit) - the majority opinion with few disagreements, held conclusively that the practice of triple talaq cannot be sustained.
Let us test the judgment from Bobbit’s eyes. In my view, the decision is correct but the reasoning given by the Supreme Court leaves much scope to answer the reference effectively.
Examining through an anecdote from the mythological book Mahabharata – At Yudhisthara’s coronation, Shishupala started insulting everybody. All felt bad except Lord Krishna. After the 100th insult, Krishna hurled his razor sharp discus and beheaded Shishupala. The historical limb of Bobbit’s argument is precisely this when we consider the abhorrent practice of instant triple talaq. Its time had come and had to be beheaded by the Supreme Court. The majority opinion held that although it may be ancient, the practice of triple talaq was neither integral to islam nor a part of personal law.
Textually, Justices Khehar and Kurian Joseph held that the 1937 Shariat Act is not a legislation regulating talaq and hence, the same cannot be tested on the anvil of Article 14 which is diametrically opposite to the stand taken by Justices Nariman who in fact wrote that the 1937 Act being a pre-constitutional legislative measure would fall directly within Article 13(1). It is because of this reason I termed the judgment 2.6:2.4, the difference of opinion between Justice Khehar and Justice Nariman is that while the former finds that the practice of triple talaq cannot be set aside for being violative of Articles 14, 15(1), 21 and 25(1), the latter found the practice arbitrary and liable to be set aside. Interestingly, none finds the practice unconstitutional per se. Justice Kurian Joseph finds triple talaq against Quran, arbitrary, not integral to islam & not part of its personal law and Justice Nariman finds triple talaq manifestly arbitrary. However, surprisingly, Justice Nariman hasn’t explained as to how and why did he come to a conclusion that Triple Talaq is arbitrary.
Structurally, in order to check the constitutional validity of the practice of Triple Talaq, the Supreme Court had to first decide if a personal law is a ‘law’ or ‘law in force’ as per Article 13 of the Constitution, secondly whether such a practice of personal law can supersede a constitutional right and thirdly whether the practice was an essential or integral part of Islam. However, the Supreme Court chose an entirely different and clumsy route. All three judgments have consciously refused to consider the question that whether personal law is subject to Constitution and erroneously Justice Khehar wrote that the stature of personal law is that of a fundamental right. None of the judges expressly held that Triple Talaq is unconstitutional. Therefore, in quite contrast to what has been largely reported, it cannot be said that Triple Talaq has been declared unconstitutional. It has been simply set aside. While Justice Khehar found it constitutionally valid holding that it cannot be set aside for being violative of Articles 14, 15(1), 21 and 25(1), Justice Nariman found the practice arbitrary and liable to be set aside. It is in this light that Justice Kurian Joseph’s judgment becomes extremely important as he tilted the judgment in favour of Justice Nariman’s view via different route even without commenting on constitutional validity of triple talaq as such.
Justice Kurian Joseph’s reasoning is based on the decision in Shamim Ara v. State of UP [(2002) 7 SCC 518] which had previously held in implied words that triple talaq lacks legal sanctity. He held that the practice of triple talaq not being a state action cannot be examined for being violative of Part III. However, as Justice Kurian found that the 1937 Shariat Act is not a legislation regulating talaq, he took Justice Nariman’s route that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness. However he also misses to share why and how exactly is triple talaq arbitrary. He therefore based his reasoning on triple talaq being against the basic tenets of the Holy Quran and consequently, violative of Shariat. He further held that the practice of triple talaq is not integral to islam. He further differed from Justice Khehar’s minority opinion in two more aspects - even under Article 142, the exercise of a Fundamental Right can be injuncted and it is not for the Courts to direct for any legislation. Thereby, in no clear terms Justice Kurian Joseph has authoritatively held Triple Talaq to be against the constitution but termed it against Quran, arbitrary, not integral to islam and not part of their personal law at all.
Checking the verdict doctrinally, therefore, the abhorrent practice of triple talaq has not been discarded for being discriminatory and against Part III of the Constitution but for only being arbitrary and, therefore, violative of Article 14. Justice Khehar’s opinion is full of self evident contradictions which is clear in unambiguous terms when he upheld the constitutional validity but not only injuncted it for extendable initial 6 months but also instructed (incorrectly so) the legislature to bring in a law to hold opposite of its validity. In my view, the Supreme Court missed a golden opportunity to revisit the ratio of Narasu Appa Mali. Surprisingly, none of the judges dealt with the issue that whether triple talaq can be treated as a ‘customary law’ which by virtue of the judgment in Madhu Kishwar vs State of Bihar, is subject to Part III. It is Justice Kurian Joseph’s partly concurring, partly dissenting judgment which tilts the decision against triple talaq. The reasoning given by Justices Nariman and Kurian Joseph are different and none of them completely justifies setting the practice aside and did not even touch the aspect of the practice being discriminatory to woman at all. What is also astonishing is that Justice Nariman did not express any views as to how triple talaq is arbitrary but set it aside for being so. Infact he impliedly overruled McDowell’s and Rajbala’s cases which declined to accept the doctrine of arbitrariness. He declared the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, void to the extent that it recognizes and enforces Triple Talaq. This view is not at all endorsed by Justice Kurian Joseph who infact holds that after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.
Instead of going into actual questions of law, the majority chose to declare triple talaq arbitrary without assigning any reasons for it and set it aside in a half baked manner. In a nutshell, undoubtedly the decision is welcome but the reasoning taken by the Supreme Court is disappointing, tragically optimistic and leaves much to be dealt with. It is to be seen how the neo-arbitrariness doctrine is applied to cases such as right to privacy and how religious freedom jurisprudence is reshaped after this judgment. Nevertheless this judgment will affect the way practices not integral to a religious demonination may be examined judicially. It shows it may be necessary to compel a man to be free. All I can say today is how difficult it is to know, yet how important to remember! Someday, later, fingers crossed!