In ancient Greek mythology, the king of Ephyra, Sisyphus was sentenced by Gods to roll the rock up the hill. After toiling hard, he would reach the peak to complete his punishment, only to watch the rock comeback rolling down to hit him. Thus, at the end of the even after grinding away, he wasn’t left with making any real progress.
The widely hailed judgment by the Supreme Court has set aside the‘Triple Talaq’or ‘Talaq -e-Biddat’. This was the first instance wherein the Supreme Court of India has set aside a discriminatory practice in the intimate sphere. However, on a closer perusal of the judgment, it is realized that the important issues such as the lack of gender justice in personal laws and Uniform Civil Code have not been addressed by any of the 5-Judges. Thus, even though the nefarious practice of Triple Talaq was set aside by a narrow margin of 3:2. But in essence, it is an equivalent of Sisyphean’s progress where there is no real progress in the jurisprudence. The judgment egregiously fails to engage with any consequential issues. Even after majority judgment of Justice Joseph Kurian and Justice Nariman concurred by Justice Lalit, it must not lose sight that it has not ruled that our basic constitutional values override religious belief and practice.
While wholeheartedly appreciating the outcome that set aside the downright discriminatory and patriarchal practice of ‘Triple Talaq’, this article will critically analyze the legal importance of the 5-Judge Bench ‘Triple Talaq’ judgment.
Majority Judgement: The Intersection of Parallel Lines
The majority, Justice Kurian, Justice Nariman concurring with Justice Lalit, arrived at the same decision using two diverse, distinct and at times, contradicting reasoning. It is perhaps difficult to curl out a judicial precedent which can be used as reference point for future issues like Polygamy and Halala which are pending before the Honourable Court.
The stark difference between the two judgments is that Justice Nariman recognizes the Muslim Personal Law (Shariat) Application Act, 1937 as a statutory provision, whereas Justice Kurian recognizes it codification of personal laws. For Justice Kurian Joseph the purpose of Shariat Act was to codify Islamic laws, thereby separating the Un-Islamic elements from it. Therefore, by establishing that the ‘Triple Talaq’ is Un-Islamic in nature, he set aside this practice. The issues leading out of this judgment is that he used the religious text to set aside the discriminatory practice of ‘Triple Talaq’ instead of putting the practice on test of Fundamental Rights under Indian Constitution, absolutely evading the question of gender justice and interpreting the Quran, he simply asserted that ‘bad in theology is bad in law’. Thus, setting aside the practice of ‘Triple Talaq’on the narrow ground, of it being un-Islamic, instead of Un- Constitutional seems like a wrong method to deal with the whole issue.
Whereas, in the judgment written by Justice Nariman and supported by Justice Lalit, approached the issue in a different manner. They categorized the Shariat Act, 1939 as a statutory enactment, which “recognizes and enforces triple talaq”. The same was not protected as a religious practice under Article 25 and was put to test under Article 14 of the Constitution. The practice was put to test of ‘Doctrine of Arbitrariness’. Furthermore, he holds the practice to be “manifestly arbitrary” as it depends entirely on the whims and fancies of the husband and takes places instantly without any possibility of reconciliation. Here, he fails to make any remarks on how the practice is against the very fiber of gender equality guaranteed under the Constitution.
The Minority Judgement- A Faux Pas
The minority judgment was given by the Chief Justice of India, Justice Khehar, concurred by Justice Naseem even while conceding to the fact that the practice of ‘Triple Talaq’ as a demeaning and obnoxious practice for Muslim women, were reluctant to set it aside. According to them, setting aside of the unjust practice would amount to interference by the Judiciary on Legislative function, so they implore the Legislation to make laws on the matter.
The most dubious outcome of this judgment is that they have placed the personal laws of each religion, over and above the Indian Constitution. Justices Nazeer and Khehar’s dissenting decision offers the strongest defense of community rights over individual rights places gender equality below religion and personal religious law over statutory enactment. It does not stop there. By placing practices like personal law tantamount to Article 25(1), with freedom of conscience, it lays places the personal law in a shield impregnable by the Constitution of India, holding the personal laws beyond the reach of Courts.
Though the practice of Triple Talaq has been set aside, all the judges fail to take notice or even address the colossal issue of gender discrimination. Unlike the popular perception, this case insufficiently moves in the direction of achieving gender justice. Unlike a frog leap, it has advanced only a step in that direction.