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A law has been struck down for being “arbitrary” for the first time, until now it was used only to strike down executive action not laws made by a legislature.

The Supreme Court’s judgment in Shayara Bano’s case is monumental but not for the reason most of the commentators are talking about. What has been said about the so-called “instant triple talaq” is largely an echo of what was already said by multiple High Courts and the Supreme Court itself in Shamim Ara’s case. The final order in the case, “setting aside” talaq-e-biddat, only puts to rest a debate which was inexorably moving to this conclusion.

But the consequences of this judgment for Muslim women may be less monumental than is being made out. What the Supreme Court has said is that a Muslim marriage between Sunnis will not come to an end simply because the husband pronounces “talaq” thrice in one sitting. However, a Muslim wife abandoned by her husband still has to approach the court and seek appropriate remedies against him. This judgment has to now be followed by a law made by Parliament.

The minority judgment not only holds talaq-e-biddat to be a part of sharia law in India, but that it is also constitutionally protected. The analysis confuses what is practice with what is law in the context of Islamic law. There is little analysis as to why a practice, even one with a long history, should necessarily be considered as part of the law when, as Justice Kurien Joseph points out, there is much legal opinion to the contrary.  The minority opinion also refuses to analyse the hadiths for the puzzling reason that courts are not supposed to, when in fact it is the mandate of the Muslim Personal Law (Shariat) Application Act, 1937 that they should, especially since they are a source of Islamic law.

Equally befuddling is the assertion that “personal law” is unequivocally protected under the right to religious belief contained in Article 25 of the Constitution as a fundamental right. In fact, previous judgments of the Supreme Court have held that such secular activities like marriage, divorce et al are not within the purview of Article 25.

On one hand, the minority opinion says that talaq-e-biddat is not in violation of Article 14 or 15 of the Constitution, then it proceeds to concede that the practice is indeed “gender discriminatory”. After having held that it is a fundamental right and deciding almost every issue against the petitioners, it still goes on to “injunct” all Muslim men from availing of talaq-e-biddat till some sort of legislation is passed on this matter. Para 200 of the minority opinion effectively contradicts the previous 199 paras.

In his judgment, Joseph sounds incredulous that a practice that has little basis in sharia itself is being held to be “constitutionally protected” by Khehar. Justice Rohinton Nariman’s judgment dissects this point further to say that even if talaq-e-biddat were to be part of sharia, it would not necessarily be protected under Article 25(1) of the Constitution since not every single thing in every religion has been deemed worthy of constitutional protection anyway.

So, what is truly monumental about this judgement?

The fact that a law (Section 2 of the 1937 Act) has been struck down for being “arbitrary”.

“Arbitrariness” had long been recognized as a ground for striking down executive action but not laws made by a legislature. However, the Supreme Court made a crucial move in EP Royappa in 1974, holding that arbitrariness in all government action was, by definition, prohibited under Article 14 of the Constitution of India as well. This meant that laws made by a legislature could also be challenged and struck down solely for being “arbitrary” by the courts.

The question about arbitrariness as a ground to strike down legislation was referred to a constitution bench of the Supreme Court in Subramanian Swamy v Director CBI, in the context of Section 6-A of the Delhi Special Police Establishment Act, but was not actually answered by the Bench which decided the case. Nariman’s judgment and Joseph’s concurrence has now answered that question and put it beyond dispute.

Nariman’s opinion holds that the practice of instant triple talaq, investing uncontrolled and “whimsical” power on the man, is arbitrary and that the 1937 Act in giving recognition to such arbitrary acts is therefore unconstitutional.

Then, the reasoning gets a bit shaky – it is not quite clear what exactly is “arbitrary”: the fact that it is only the prerogative of the man or that it requires no reasons and is irrevocable. If it is the former, it is actually discriminatory not arbitrary, and if it is the latter, the problem with it is the absence of reasons and not the practice itself.

It was incumbent on Nariman to lay out the parameters of what is “arbitrary” and thus unconstitutional, lest the judgment end up replacing one form of arbitrariness (legislative) with another (judicial).

The case has, however, left unanswered many questions, mainly whether uncodified personal laws can be held to be unconstitutional. Suppose a Naga tribal custom concerning marriage is held “unconstitutional”- would it mean they will be compelled to follow statutory law in direct violation of special status to Nagaland? Or risk non-recognition of marriage by the Indian state? A question like this may have to be answered in the future, but this judgment leaves us no wiser.

Alok Prasanna Kumar is a Senior Resident Fellow at Vidhi Centre for Legal Policy

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