Triple Talaq Verdict: Certain Misgivings on the Majority

The week past has been an important one for the two important verdicts delivered by the Supreme Court on Triple Talaq and the Right to Privacy has ushered in new changes in the constitutional outlook. Especially the verdict by the Supreme Court declaring the Triple Talaq to be illegal has been hailed by the members of the civil society as an important step towards the realization of equality for women. However, the 3:2 majority that delivered the verdict, precariously thin majority that it is, has given rise to more questions than what it purports to settle now. The jurisprudential questions that it has opened up will give rise to new round of debates over religious rights vis-a-vis the individual liberties. More than the outcome the basis upon which it has been arrived at poses certain intriguing questions that could give rise to new round of debates in the future. This is especially because even within the majority of three judges the authors Kurian Joseph J. and Rohinton Nariman J. differs on the fundamental reasoning to call the practice of TT invalid. Nariman J. in order to declare Triple Talaq to be illegal puts forward two fold reasoning.
1) It is 'arbitrary' in violation of right to equality under Article 14 and hence unconstitutional.
2) Triple Talaq is against the fundamental tenets of Islam and hence illegal.
In his first reasoning, Justice Nariman has restricted himself only to test the practice of Triple Talaq upon the principles of equality under Article 14, while wholly ignoring the discrimination that sexual discrimination that this practice causes by testing its validity against Article 15, which prohibits discrimination on the grounds of sex amongst other grounds. To the contrary, Justice Kurian Joseph takes a rather narrow approach by only testing the whether the practice of triple Talaq is against the fundamental principles of Islam itself without any resort to the arguments of the Petitioners upon the infringement of the affected women’s fundamental rights. While testing the Triple Talaq crucially did not feel the need to inquire into the constitutionality of Triple Talaq. He differs from the opinion of Justice Nariman in his finding that Muslim Personal Law (Shariat) Application Act, 1937 is a law that regulates Talaq, a precondition under Article 13 (1) of the constitution to invalidate anything to be unconstitutional. He has in fact agreed with minority opinion of Chief Justice Kehar in this regard. in holding that the 1937 Act is not a legislation regulating talaq, rather it merely states that "Shariat [is] applicable as the rule of decision in the matters enumerated in section 2" of 1937 Act. His reasoning for holding it illegal under the EP test are similar in nature to that of the opinion of Nariman J. Here he holds that under quran itself, whenever a talaq is granted, an opportunity for reconciliation is necessary and if the reconciliation succeeds revocation can happen. These are essential under Quran. TT closed the opportunity for such a possibility and hence it violated 'shariat'. But this narrow view to declare it illegal, without resorting to the main arguments on discrimination and arbitrariness is a precarious proposition for the enhancement of civil rights. Unless the rights that are alleged to be violated by such regressive religious practices are constitutionally protected it cannot be remedied completely. It is yet a regressive choice that personal laws can prevail over fundamental rights.
Quite independently, Justice Nariman, in consonance with Justice Joseph’s conclusion, also tests the practice by inquiring into whether it permitted within the Islamic jurisprudence or not. In other words, he tests whether it forms an essential inalienable part of the religion of Islam or not, called as ‘essential practices’ test. The test was for the first time used by the court in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005 case. The question that was involved here is the conflict between the rights to practice a religion (Article 25) as against the intervention of state on the grounds of social welfare and other secular activities. The court held that any kind of infringement of these rights, if it does not affect the essential aspects of the religion, could not be given the protection under Article 25 and 26. Through this argument the court sought to regulate those aspects of a religion that does not form the core of the subject religion.

“… in regard to article 26 is, what is the scope of clause (b) of the article which speaks of management “of its own affairs in matters of religion?" The language undoubtedly suggests that there could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, whereas the line to be drawn between what are matters of religion and what are not. It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two clauses of article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law.”

This test essentially gives the power to courts to decide upon what constitutes the essential aspects of religion, fundamentally altering freedom choice in the inner belief system of an individual to an externally dictated version of it. The reach and practice of a religion, while it cannot be put to any precise definition, the court attempts to do that by relating it powers to find what constituted the integral part of it. In the words of the court:
A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else, but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression "practice of religion" in Article 25.
The attempt here is to secularize the religion with an external definition that might run contrary to the manner in which the followers of a particular religion would interpret it actually. This reverses the freedom of choice of a person to see the religion in the way that he chooses it to be as against an externally dictated conception of the belief system of the individual. This is an unnecessary exercise, which could have been avoided, to look into the validity of the practice when the rights infringed are constitutionally guaranteed rights of individuals.
This, in fact, runs quite contrary to the secular ideals that were envisaged under Article 25, which leaves things to choice sensitive to religious and legal pluralism rather than an expectation in terms of normative uniformity. Also, the definition of “religion” itself was given the widest possible amplitude in this judgment

“Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine of belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”

In fact, Nariman J. while noting this judgment states, “atheism would also form part of “religion”.” (Para 24) By both providing the powers to define what constitutes ones faith and by defining the term “religion” under the “essential practices” test the court’s power has arrogated to itself the powers to homogeneously define anything that falls under the term “religion”. In fact this has been used so much so that in a recent case the Supreme Court decided whether keeping a beard formed the essential practice under Islam or not. (Mohammed Zubair Corporal No.781467-G Vs. Union of India & Ors. Civil Appeal No. 8643 of 2009)
The subsequent line of judgments on this question both reiterated and expanded this. The fundamental issue here with this present TT judgment perpetrating this is that it chokes the critical ability of a person to self identify his own belief system by possibly alienating a social norm that does not conform to these devised tests imposed by the judiciary. There cannot be any straitjacket definition that could possibly be provided for a person’s faith by eliminating the role played by freedom of choice for an individual guaranteed under the Constitution. Counterintuitively this test curtails the very freedom the practice religion (according to one’s own conception of what religion is) that it seeks to protect under Article 25, creating an anomaly.
In the present case, Nariman J., in order to hold the TT to be unconstitutional, first he brought the 1937 act under the definition of “laws in force” Article 13 (1) in order to test TT for infringement of the Muslim Women’s rights under Article 14, as against the opinion of Kurian Joseph J. By holding that TT can be tested on the anvil of the principles ‘arbitrariness’ developed under Article 14 the case was very much made for holding it unconstitutional. There never arose any need for Nariman J. to resort to whether TT forms an essential practice of Islam. This was an invaluable opportunity to discard this test altogether from the constitutional jurisprudence.

Individual Liberty Vs. Religious Rights

The parochial understanding paid to the underlying questions upon the civil liberties of the affected women is made visible by the choice of the court to not reconsider the past precedent in State of Bombay Vs. Narassu Appa Mali, which held that personal laws cannot be subject to the restrictions of fundamental rights. It is quite anachronistic that individual rights are given precedence for the communal rights in an era where completely new forms of rights are propounded by the court. The narrow view taken by the judges, including the dissenting minority, without resorting to the main arguments on discrimination is a precarious proposition for the furtherance of civil rights jurisprudence. Unless the rights that are alleged to be violated by such regressive religious practices are constitutionally protected it cannot be remedied completely. It is yet a regressive choice that personal laws can prevail over fundamental rights. This is a classic example of misplaced priorities of the court in balancing individual liberties against the communal rights. More than the overall the conclusion, the failure of the court to recognize the inequality in the prevalent social structure against the women would ring against the liberal conscience of the court.

Formal Vs. Substantive Equality

The opinion rendered by Justice Nariman is celebrated by scholars for furthering the jurisprudence of equality and the principles of ‘arbitrariness’ under Article 14 of the Constitution. This is missing the wood for the trees. The verdicts failure to even recognize that there has been discrimination based on sex, in violation of Article 15, has misdirected the inequality analysis. It is only after taking into consideration the substantive effects of sex of a person plays a role in directing discrimination that one can recognize the mischief that is sought to be remedied. The superficial assessment of all the three opinions has failed to look at the root cause that is gender discrimination only accords a formal equality that has not remedied the issue. This is only a formal equality giving a short shrift to the unequal bargaining power of women in a family structure. It is necessary that the discussion must redirect its attention to the social constructs of discrimination and must analyze it in its own terms. The deeper questions over economic dependence of women, artificial construct of gender based social hierarchy and the resultant discrimination cannot be answered without it. It must deconstruct the social, economic and political dimensions of the gender based discrimination that are a direct result of a conservative understanding of women’s position in the society to achieve substantive equality by travelling the last mile.
A mechanical look at the majority opinion might show it to be a progressive verdict in terms of its outcome; however, it is yet another opportunity missed by the judiciary to protect a major vulnerable section of the society from discrimination and abuse. Jurisprudentially there is a great difference in the two opinions of the majority putting things at a naught. It would be interesting to see the further development of jurisprudence upon this pulpit in the future and how these differences within the majority are going to play out further.

Naz Foundation Judgement and Right to Privacy: A Revisit

Now that the much-awaited judgement of Supreme Court judgement on Right to Privacy is upon us, many interesting discussions are happening all around. On a jurisprudential level the judgement will be path breaking and will initiate further discussion on this subject, for its impact is widespread. More than putting an end to the problems involved this decision would initiate fresh grounds for development of law in this area. Some past decisions might have to be revisited based on the outcome here. One such case is the regressive jurisprudence established by the Supreme Court in Suresh Kumar Koushal & Anr. Vs. Naz Foundation and Ors. (2014) 1 SCC 1. Apart from other jurisprudential mistakes, that the judgement has made it has relied upon two judgements in particular to discredit the arguments on right to privacy made by the LGBT persons in the case. While the High Court 160 (2009) DLT 277 found Section 377 to be in violation of the Right to Privacy under Article 21, the Supreme Court simply rejected such arguments relying upon the judgement by the Court in Kharak Singh v. State of UP AIR 1963 SC 1295 and Gobind v. State of MP  (1975) 2 SCC 148. The overt reliance by the court in these two judgements is both to delineate the state interference on one’s privacy rights and to show that Section 377 challenged in the case falls under the reasonable restrictions on the fundamental rights guaranteed under the constitution. As far as the correctness of these two judgements are concerned it can be seen that these cases are no more a good law, since they were effectively been disregarded in a line of subsequent cases. Especially in Kharak Singh the ratio was based upon the premise that the fundamental rights were watertight compartments, which cannot be read together and cannot have spill over effects on each other –a pre Maneka Gandhi era with A.K.Gopalan understanding of fundamental rights. However, this understanding has been changed both in Maneka Gandhi and R.C.Cooper judgements of the court. Moreover, a seriatim of subsequent cases has identified this and has been noted by the court even very recently in Mohd Arif v. Supreme Court of India (2014) 9 SCC 737

“25. In Kharak Singh v. State of U.P. [(1964) 1 SCR 332 : AIR 1963 SC 1295 : (1963) 2 Cri LJ 329] , Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] reading of fundamental rights in watertight compartments was reiterated by the majority. However, they went one step further to say that “personal liberty” in Art. 21 takes in and comprises the residue after all the rights granted by Art. 19. Justices Subba Rao and Shah disagreed. They held:
“The fundamental right of life and personal liberty have many attributes and some of them are found in Art. 19. If a person's fundamental right under Art. 21 is infringed, the State can rely upon a law to sustain the action; but that cannot be a complete answer unless the said law satisfies the test laid down in Art. 19(2) so far as the attributes covered by Art. 19(1) are concerned. In other words, the State must satisfy that both the fundamental rights are not infringed by showing that there is a law and that it does amount to a reasonable restriction within the meaning of Art. 19(2) of the Constitution. But in this case no such defence is available, as admittedly there is no such law. So the petitioner can legitimately plead that his fundamental rights both under Art. 19(1)(d) and Art. 21 are infringed by the State.” (at pages 356-357)
26. The minority judgment of Subba Rao and Shah, JJ. eventually became law in Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India [Rustom Cavasjee Cooper (Banks Nationalisation) v. Union of India, (1970) 1 SCC 248] , where the 11-Judge Bench finally discarded Gopalan's [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] view and held that various fundamental rights contained in different articles are not mutually exclusive: (SCC p. 289, para 53)
“53. We are therefore unable to hold that the challenge to the validity of the provision for acquisition is liable to be tested only on the ground of non-compliance with Article 31(2). Article 31(2) requires that property must be acquired for a public purpose and that it must be acquired under a law with characteristics set out in that Article. Formal compliance with the conditions under Article 31(2) is not sufficient to negative the protection of the guarantee of the right to property. Acquisition must be under the authority of a law and the expression “law” means a law which is within the competence of the Legislature, and does not impair the guarantee of the rights in Part III. We are unable, therefore, to agree that Articles 19(1)(f) and 31(2) are mutually exclusive.”
27. The stage was now set for the judgment in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 2 SCR 621 : (1978) 1 SCC 248] . Several judgments were delivered, and the upshot of all of them was that Article 21 was to be read along with other fundamental rights, and so read not only has the procedure established by law to be just, fair and reasonable, but also the law itself has to be reasonable as Articles 14 and 19 have now to be read into Article 21. [See at SCR pp. 646-48 : SCC pp. 393-95, paras 198-204 per Beg, C.J., at SCR pp. 669, 671-74 & 687 : SCC pp. 279-84 & 296-97, paras 5-7 & 18 per Bhagwati, J. and at SCR pp. 720-23 : SCC pp. 335-39, paras 74-85 per Krishna Iyer, J]

In the much-awaited judgement on the right to privacy, if the court finds that the Right to Privacy is a fundamental right recognised under the constitution they must necessarily overrule these two judgements, which has been relied upon in Naz foundation, explicitly to arrive at such a conclusion. This would erode the fundamental premise upon which the challenge to Section 377 was made by the LGBT persons was rejected by the court. Also, while arguments were made before the 5 judge bench in the Right to Privacy case it was strenuously submitted the petitioners that the court must only identify that the Right to Privacy is a fundamental right and is a part of the Constitution and it must not venture into defining the contours of it but to leave it to be decided on case to case basis. In Naz Foundation, the state interference in the matters of personal choice and sexual orientation may have to be revisited in view of the concrete understanding that would emerge through this judgement on privacy rights. Specifically in the context of privacy rights and individual autonomy over sexual orientation would be put to question and there would be a necessity to delineate the degree of state interference in such matters. It would provide a wonderful opportunity for the court to revisit one of the most regressive judgements ever has been delivered by the court. The overarching impact of the judgment on the constitutional status of right to privacy can be keenly felt when we see the wide ranging repercussions, either positive or negative, that it could create in the established jurisprudence. It is the fondest hope that the Supreme Court would not succumb to the temptations of arming the state by failing to recognise such an inalienable right.

ADM Jabalpur Vs Shivakant Shukla: Supreme Court and its Jurisprudence of Redemption

If there is one case which marked the downfall of Indian judiciary no doubt that it will be Habeas Corpus case (ADM Jabalpur Vs. Shivakant Shukla (1976) 2 SCC 521). The case was decided by the court in a highly charged political situation and it was clearly visible for everyone that the decision was made the court not on merits but on external political considerations. The tragedy also gifted us with the courageous dissent of Hon'ble Justice H.R.Khanna who went down the annals of history and the saviour of the ideals for which the Indian democracy stood for. But the mortal blow that the decision and its subsequent repercussions dealt to the higher judiciary took a long time to recover. During the hearing of the case when Justice Khanna specifically asked whether there would be any remedy if a police officer, because of personal enimity, took into detention a law abiding citizen and even put an end to his life. The attorney general unequivocally stated that, 'consistently with my argument there will be no judicial remedy in such cases as long as the emergency lasts’. It is a treacherous path that the government went into and which the Supreme Court gave into. The decision altered the very nature and course that the judiciary was to take in its days to come. The blatant supersession of Justice Khanna in his appointment as the Chief Justice of India was a direct result of his dissent from the 4 other judges forming the majority which held that even fundamental rights are suspended when emergency is proclaimed. The then judicial reclusiveness gave way to newly found activism which elevated it to unknown heights. The judiciary cloistered itself and arrogated to it all powers that was possibly within its reach under the Constitution including its own process of appointments and transfers. Entering into a new era, its subsequent interpretive ventures expanded both reach and scope of civil liberties under the Constitution.

The new jurisprudence that which was heralded by the Supreme Court post the Habeas Corpus case ushered in an positive morality to the constituional provisions. But it is yet a surprising fact that the judgement, which is seen as a gruesome manifestation of state power, has dubious validity without being explicitly overruled. There arose no opportunity for the Apex Court to revisit this byproduct of the dark hours of emergency. In an era where far reaching rights, which were never intended or contemplated by the framers of the Constitution were provided by the judiciary purely through its powers of interpretation, it baffles one's reasoning power to think that this still forms a part of its history. In contrast with the judiciary that we know of now, this judgement yet remains a blemish in its record. To put this in perspective a passage from the majority judgement written by J. Beg will be instructive

“we understand that the care and concern bestowed by the State authorities upon the welfare of detenus who are well-housed, well-fed, and well-treated, is almost maternal. Even parents have to take appropriate prevent action against those children who may threaten to burn down the house they live in.”

The subsequent jurisprudence expounded by the Supreme Court in a series of landmark judgements changed the fundamental approach towards the interpretation of constitutional rights and the remedies. Therefore it is important for us to see what is the scope and reach of the jurisprudential conclusion arrived at by the court in this infamous judgement. Apart from its conclusion on the suspension of fundamental rights during emergency it also raised several contentious issues upon the substantive and procedural justice and it's implications.

The issue that arose in ADM Jabalpur is whether constitutional remedies under Article 226 and Article 32 of the Constitution can be availed by a party whose fundamental rights are infringed during emergency or not. The issue arose when, after the declaration of emergency by the President, many leaders of the opposition were arrested by the government on one pretext or the other all over the country. Within two days of declaring the emergency the President made another declaration whereby no person could move the courts for enforcement of articles 14, 21 & 22. The detainees initiated Habeas Corpus petition before the high courts challenging their detention. Though the judiciary was not able to examine the order of detention on any illegality under the maintenance of internal security act, 1971, several High Courts granted the relief to such Petitoners by scrutinising the validity of such detention orders on the pedestal of fundamental rights conferred under Article 14, 21 and 22, in spite of the proclamation of emergency under Article 359. The Supreme Court in the challenge to such orders concluded that

"Article 359 prohibited enforcement of articles 14, 21 & 22 and it also barred anyone from approaching the High Court to question his detention on any ground whatsoever. Liberty is the gift of law and can be forfeited by law. There is a complete bar to approach the court for any violation of articles 14, 21 and 22 once a proclamation under Article 359 is made. No person can question his detention for any reason whatsoever or on the ground that it is illegal and mala fide."

In a textualist reading of the provisions the majority concluded the above by ignoring the fact that one does always have to read the provisions of the Constitution with strict fidelity to its text, or in a manner faithful to the intent of its framers. The parochial understanding of Article 21 and its substantive reach was directly carried over from the A.K.Gopalan (AIR 1950 SC 27) where the court rejected the arguments to import the due process clause from the American Constitution. The entailing effect was that even when a procedure established by law passed by the legislature offends Part III the validity of such a law or the procedure cannot be challenged. The court also concluded the fundamental rights to be mutually exclusive and are water tight compartments which cannot have spilling effects on the other rights conferred under Part III of the Constitution. The substantive effect of such a conclusion is that the rights that were not explicitly recognized under the Part III cannot be enforced. The dissent by J. Khanna in refusal tellingly stated that 

“The right not to be deprived of one's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights  I did not have the effect of exterminating the independent identity of such a right and of making Article 21 to be the sole repository of that right.” (para 531)

This conclusion of the court over the ambit and scope of Article 21 that is seen above was substantially overruled by the court the celebrated case of Maneka Gandhi Vs. Union of India (1978) 1 SCC 248. It is of interest to know that (ironically) three of the judges (Beg, Chandrachud, and Bhagwati) in the bench which decided the Maneka Gandhi were also a part of the bench which decided the Habeas Corpus case. It substantially imported the due process clause, which was consciously eschewed by the framers of the Constitution. The jurisprudence that was spearheaded by the Supreme Court in the subsequent decades expanded the ambit of the ‘due process’ to include 'substantial’ due process. In fact, it is the author of the Habeas Corpus judgement J. Bhagwati who opened up a whole new arena of rights under Article 21 by recognizing the epistolary jurisprudence for the first in the history heralding the new era of Public Interest Litigation (PIL). If one looks at the human participants behind these judgements, one cannot help but think that the ground breaking jurisprudence heralded by the Apex Court is a jurisprudence of redemption for what it failed to do during the hours of want for this country. While the external pressure made these decision makers to follow this path of regression, the subsequent decades, post emergency, provided valuable lessons for the judiciary to be cautious of the executive excesses affecting the Independence of judiciary and its ability to curtail the freedom. The judiciary saw this as an opportunity to redeem its role as a protector of civil liberties enshrined under the Constitution. Undoubtedly the subsequent developments be it the expansion of Article 21 to include civil rights of the new era or the expansion of its powers of judicial  review is towards this goal. It is necessary for the court to not forget such lessons in the present when questions as to the very existence of rights as basic as privacy are put to question by the state before the court.

P.S: In the arguments before the 9 Judge bench, constituted for deciding on the fundamental right to privacy, Advocate Mr.Gopal Shankaranarayanan made an argument (albeit as a passing remark) that this judgement can be overruled by the present bench. The legal effect of the judgement, apart from the implied overruling by subsequent judgements of the court, the 44th constitutional amendment nullified it. Making it irrelevant as far as the legal effect is concerned. However, it yet remains as a blot in the judicial reasoning and deserves to be overruled by the present bench of 9 judges.