Triple Talaq verdict today: What is at the heart of this case in SC?

NDA govt can legislate to outlaw Triple Talaq rather than asking SC to do it

This article originally appeared on Business Standard on 30.05.2017. It is being republished in light of the Supreme Court delivering the verdict today to declare whether the Islamic practice of triple talaq is constitutionally valid or not. A five-member bench, headed by Chief Justice JS Khehar, will pronounce the judgment.

At the heart of the arguments in the Shayra Bano, Triple Talaq case being heard by a Constitution bench of the Supreme Court, is the submission that all laws, including personal religious laws, should accord with the fundamental rights of every citizen, man and woman alike. However a  judgment of the Bombay High Court delivered in 1951, on bigamous Hindu Marriages, has set the framework for consideration of this question.

In Narasu Appa Mali’s case, a bench of the Bombay High Court, comprising Justices MC  Chagla and PB Gajendragadkar the then  pre-eminent Muslim and Hindu judges of the court, fashioned a constitutional compromise, which interpreted Article 13 of the newly adopted Constitution of India. Article 13 of the Constitution provides that “all laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part”, [fundamental rights], “to the extent of such inconsistency, be void”.

Before the High Court, it was argued  that Hindu second marriages of Narasu Appa Mali and others were being discriminated against. Only Hindu Bigamous Marriages were being criminalised, while Muslim bigamy was allowed, and even bigamous marriages by Christians and Parsis, were not subject to imprisonment. This discrimination violated Mali’s right to equality, was the argument. It was also argued that a bigamous marriage, in order to beget a male child who could make offerings to ancestors, was an integral part of the Hindu religion under Article 25. It was further contended that with the advent of the Constitution, all laws and customs which were inconsistent with the fundamental rights, were void and could not be given effect to. Hence Bigamous Muslim Marriages and easy divorces, which were allowed by Muslim Personal law were no more part of Indian law, as they had been rendered void by the coming into force of the Constitution.

The Constitution was new and its early interpretation depended on the judges then in office. The Hindu Code Bill had not yet been enacted. A lot of personal law, was yet in the realm of scripture and custom, sanctioned by the courts in precedent after precedent. The bench could have agreed with the arguments and held that all personal laws, had to conform to the constitution or be rendered void to the extent of inconsistency with constitutional norms. The effect would have been, to invalidate a lot of settled legal positions, void many marriages and bastardise many a child of a bigamous marriage. It chose instead to hold that Article 13 was prospective and did not impact existing personal law.

Justice Chagla wrote “The scheme of the Constitution, therefore, seems to be to leave personal law unaffected except where specific provision is made with regard to it and leave it to the Legislatures in future to modify and improve it”. “Although the point urged before us is not by any means free from difficulty, on the whole after a careful consideration ot the various provisions of the Constitution, we have come to the conclusion that personal law is not included in the expression "laws in force" used in Article 13(1).”

Justice Gajendragadkar agreed “.. it is competent either to the State or the Union Legislature to legislate on topics falling within the purview of the personal law and yet the expression "personal law'' is not used in Article 13, because, in my opinion, the framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish that the provisions of the personal laws should be challenged by reason of the fundamental rights guaranteed in Part III of the Constitution” 

This view  was approved by the Supreme Court in several decisions, with a three judge Judgment of 2003 in Javed v Haryana going so far as to say - “We find ourselves in entire agreement, with the view so taken by the learned Judges whose eminence as jurists concerned with social welfare and social justice is recognized without any demur.”

The Chagla-Gajendragadkar compromise which excluded non-legislated  personal laws, from conforming with the fundamental rights, has lasted for nearly 65 years now. Courts do not easily depart from settled precedents. Today the Supreme Court, is being asked to overrule Narasu Mali, inter-alia on the ground that all laws customarily ordained or legislature made, should be in accord with the Constitution. The Government has told the Supreme Court, through the Attorney General, that it will step in with legislation in case Triple Talaq is invalidated. 

The court has as yet refrained from pointing out, that nothing prevents the government from legislating in the matter. The judgment in Mali itself recognises and indeed commends the idea of social reform through legislation. It is difficult to escape the conclusion that whenever  a Government fears to legislate, it invites Courts to strike down the existing position of law. 

The country saw the UPA government do the same routine, with the constitutional challenge to S.377 of the penal code, which criminalised homosexuality. Even though the Delhi High Court read down the section, the Government appealed to the Supreme Court which set aside the High Court verdict. Though almost every parliamentarian privately deplores the law, there are but a minuscule minority who will publicly take steps to repeal it.

Today the NDA with an absolute parliamentary majority, refuses to legislate on Muslim personal law. It wants the courts to give a declaration of invalidity, prior to it framing a statute. Courts should not always rush in where legislators fear to tread.

Twitter: @sanjayuvacha