Saturday, September 2, 2017

Decoding the Triple Talaq case: Decision and Ratio Decidendi

                                                                                                -by Muhammad Isa Hakim

Factual Background
The controversy around Triple Talaq came to court after a suo-motu writ petition was initiated by the Supreme Court in the case of Prakash v. Phulavati[1] - a case which pertained to the interpretation of Hindu Succession Act, 1956 and had nothing to do with Muslim law. Be that as it may, the reference by the Supreme Court was in respect of two specific issues, (i) polygamy and (ii) arbitrary divorce.[2]However, at the preliminary stage the Court limited the scope of the case to only Talaq-e-biddat (Triple Talaq). It was after the saidsuo-motu writ petition, that a number of interventions were filed by Muslim women’s groups and the Muslim Personal Law Board and similar organisations, supporting and opposing the motion respectively.
By and large, the contention of most of the Muslim women’s organisations was that the practice of Triple Talaq was un-Islamic, un-Quranic and had no place in Muslim personal law(Shariat). However, the Centre and one organization contended that the practice was unconstitutional as it violates Article 14, 15 and 21 of the Constitution. Against the Centre’s contention, the heavily debated NarasuAppa Mali[3] judgment holds the field. The 1952 judgment of the Bombay High Court held that ‘personal law’ does not fall within the meaning of the term ‘laws in force’ under Article 13(3)(b) of the Constitution. Therefore, the validity of personal law cannot be tested on the anvil of provisions of Part III of the Constitution. In other words, the High Court created a distinction between ‘personal law’ and ‘statutory law’ and held that only the latter could be challenged as being unconstitutional. The said judgment has, since then, held the field and was heavily relied on by theSupreme Court in Ahmedabad Women Action Groupv. Union of India[4] as well.
Due to this contentious Bombay High Court judgment, in every case pertaining to a constitutional challenge to personal laws, the Court is called on to decide on the correctness of the NarasuAppa Mali case. Fortunately, the Court has made a final determination on the issue.
In this backdrop, essentially, there were two issues before the Supreme Court in the present case.
(i)             Whether personal laws can be tested on the anvil of fundamental rights? (In other words – the validity of NarasuAppa Mali.)
(ii)            Whether the practice of Triple Talaq is un-Islamic/un-Constitutional?

The Three Judgments
The verdict of the Court was split. Three separate judgments were delivered – two judgments supported by two judges each and one judgment by Justice Joseph. The learned Judge did not fully concur with either of the judgments and hence there is no clear-cut majority judgment. Instead, there are majority ‘opinions’ which haveto be ascertained based on the collective decisions of the judges on the two issues.
It is interesting to note that Chief Justice Khehar’s judgment (supported by Justice Nazeer) does not record disagreement with either of the two judgments. This indicates that Chief JusticeKhehar’s judgment was the first judgment to be written in the case. JusticeNariman’s judgment (supported by JusticeLalit) is in dissent ofChief Justice Khehar’s judgment as recorded in the first paragraph of the judgment. In this deadlock, JusticeJoseph gave his judgment partly agreeing and partly disagreeing with both the previous judgments. It is in this context, that the learned Judge’s judgment becomes crucial.

The Decision and theRatioDecidendi
The majority ‘opinions’ on the two questions demonstrated above, are as follows:
(i)             Whether personal laws can be tested on the anvil of fundamental rights?
·       Chief JusticeKhehar(supported by JusticeNazeer)
There is a distinction between personal law and statutory law. The personal law of the Muslims cannot be conferred with the status of statutory law merely by virtue of the Muslim Personal Law (Shariat), Application Act, 1937. The limited purpose of the 1937 Act was to negate the overriding effect on customs and usages over the Muslim personal law.(Para 156)
An example of Muslim Personal Law crystallising into statutory law was the Dissolution of Muslim Marriages Act, 1939 which codified the grounds of divorce for Muslim women.(Para 157)
Further, the fundamental rights enshrined under Article 14, 15 and 21 of the Constitution are available against State action. By virtue of the distinction between personal law and statutory law, there Muslim personal law cannot be challenged on the touchstone of State action.(Para 165)
·       JusticeNariman(supported byJustice Lalit)
Answer: Yes.
Muslim Personal Law is both recognized and enforced by virtue of the 1937 Act. It is clear from the operative words of Section 2 which state that the “the rule of decision in cases where the parties are Muslims shall be Muslim personal law (Shariat)”.(Para 18)
The 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution. (Para 19)
·       Justice Joseph
Answer: No.
Reasoning:Adopts the reasoning ofChief Justice Khehar. (Para 5)

Ratio decidendi: (By 3:2 majority) Personal law does not fall within the definition of ‘laws in force’ under Article 13(3)(b) and consequently, it can’t be challenged on the provisions of Part – III of the Constitution.

(ii)            Whether the practice of Triple Talaq is un-Islamic/un-Constitutional?
·       Chief Justice Khehar (supported by Justice Nazeer)
Answer: No.
The practice of Triple Talaq has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school. The practice of Triple Talaq, has had the sanction and approval of the religious denomination which practiced it and is thereby a part of their ‘personal law’. (Para 145)
Personal law has a constitutional protection. This protection is extended to ‘personal law’ through Article 25 of the Constitution. The stature of ‘personal law’ is that of a fundamental right. The elevation of personal law to this stature came about when the Constitution came into force. Personal law of every religious denomination, is protected from invasion and breach, except as provided by and under Article 25. (Para 146)
·       JusticeNariman (supported byJusticeLalit)
Answer: Yes. The practice of Triple Talaq is un-Constitutional.
Triple Talaq is a form of Talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of Talaq. It is violative of Article 14 as it is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.(Para 57)
·       JusticeJoseph
Answer: Yes. The practice of Triple Talaq is un-Islamic.
Triple Talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat. It cannot be considered integral to the religious denomination. (Para 10)
Relies on Shamin Ara v. State of U.P.[5], which held that Triple Talaq given without prior efforts of reconciliation as mandated in the Quran would be invalid.(Para 26)

Decision: (By 3:2 majority) The practice of Triple Talaq is set-aside.
A tabular summary of the decisions of the judges is as follows:
Chief JusticeKhehar(supported by Justice Nazeer)

JusticeNariman(supported by Justice Lalit)

Majority opinion
Whether personal laws can be tested on the anvil of fundamental rights?

No. 3:2.
Whether the practice of Triple Talaq is un-Islamic/un-Constitutional?

Yes. Un-Constitutional
Yes. Un-Islamic
Yes. 3:2.

Triple Talaq: Not Unconstitutional
As seen above, the practice of Triple Talaq was set-aside by a majority of 3 judges but for two very different reasons. JusticeNariman (supported by JusticeLalit) held it to be ‘unconstitutional’ for being manifestly arbitrary and thereby violative of Article 14 of the Constitution. However, JusticeJoseph held it to be un-Islamic as it was against the basic tenets of the Quran. In view of the different reasons adopted by the learned judges to arrive at the conclusion, it would be incorrect to conclude the practice as unconstitutional. The Court in its order uses the term ‘set-aside’ acknowledging this nicety. However, there can be no doubt that the resultant effect of the judgment is that the practice of Triple Talaq as a form of divorce is legally prohibited.

The Balancing Act by Justice Kurian Joseph
A conciliatory role was played by Justice Joseph in the present case.It has been demonstrated above, that the learned Judge delivered his judgment at the end after careful consideration of both the judgments. The judgment is extremely significant as it forms a majority with different judgments on different issues.
In para 5, the learned judge forms a majority withChief JusticeKhehar’s judgment on the first issue, in the following words:
In that view of the matter, I wholly agree with the learned Chief Justice that the 1937 Act is not a legislation regulating talaq. Consequently, I respectfully disagree with the stand taken by Nariman J. that the 1937 Act is a legislation regulating triple talaq and hence, the same can be tested on the anvil of Article 14.”
On the second issue, Justice Joseph J. adopts a unique approach by holding that the practice of Triple Talaq is un-Islamic relying on the Shamim Ara case. It is this balanced approach of the learned Judge, which is truly remarkable. It was ensured that the practice of Triple Talaq is done away with, whilst insulating personal laws of different communities from any challenge under fundamental rights and thereby confirming the NarasuAppa Mali judgment as law of the land.
It is this balanced approach which reminds one of JusticeKhanna’s judgment in KesavanandaBharati v. State of Kerala[6]where the learned Judge formed majority with different sets of judges. The 13 judge-bench in KesavanandaBharati was also starkly divided. Six judges held that fundamental rights could not be abrogated while six judges were in favour of absolute amending power of Parliament. It was Justice Khanna who held that the Parliament would have absolute amending power but it could not alter the basic structure of the Constitution. This balanced approach between two divergent views ultimately reconciled the longstanding tussle between the Parliament and the Judiciary. A similar feat of reconciliation between personal law and constitutional rights was achieved by the judgment ofJusticeJoseph which makes the ultimate verdict of the Court landmark in its true sense.

[1](2016) 2 SCC 36.
[2]Ibid at para 27.
[3]AIR 1952 Bom 84.
[4] (1997) 3 SCC 573.
[5](2002) 7SCC 518.
[6](1973) 4 SCC 225.