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.

Secularism Under Section 123 (3) of the Representation of Peoples Act

The Supreme Court of India recently in a very short of period heard and delivered several judgements of wide import, several of which were heard by a large bench of seven judges. One of those judgements involving the usage of 'religion' to appeal to the voters by a candidate invited much public and media attention. The decision of the court was much lauded for its progressive interpretation of Section 123 (3) of the Representation of Peoples Act, both by the media and public at large. In a political landscape fraught with communalism and other narrow-minded considerations this seen as a welcome move to cleanse the democratic elections to ensure the survival of constitutional ideals. In all this hubris something very fundamental about this judgement has gone unnoticed by everyone. The gravity of this misconception is too large to be brushed aside easily. Though on the face of it the judgement comes out as a progressive stance taken by the judiciary towards ensuring the elections to be free of parochial sectarian considerations, the overall outcome of the interpretation offered by the Court proves to be diametrically an opposite one at that. The jurisprudential error committed have widespread ramifications, not merely confined to the corrupt electoral practices that it sought to adjudicate. The spillover effect that this judgement can have over other legitimate democratic aspirations that find its way through freedom of speech and expression is the main concern that I wish to address here.
The fundamental issue that arose for the consideration is the scope and purport of section 123(3) of the representation of people act, more specifically the scope and application of the word "his" as used in the section.

(3) The appeal by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for any person on the ground of his religion, race, caste, community or language or the use of, or appeal to religious symbols or the use of, or appeal to, national symbols, such as the national flag or the national emblem, for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a religious symbol or a national symbol for the purposes of this clause.

Section 123 of the Representation of People Act, 1951 provides for penal actions against corrupt practices that are defined under the section. Subsection 3 of the provision defines any action by the candidate or his electoral agent using religion, race, caste, community or language to seek votes for himself or using it to the detriment of another candidate. A seemingly straightforward definition, however, gave rise to confusion on whether the appeals made is deemed to be a corrupt practise under the section only when it is of the religion to which the candidate belongs or it is a wholesale ban against the use of religion to seek the favour of the voters. The issue before the court was to decide whether it is a corrupt practice to use religion in all its forms to appeal to the voter or it must be confined only to those appeals made by a candidate on the ground of his religion. The judgement of the majority, after going through the usual rigmarole of framer's intent, the legislative history and other paraphernalia, decided in favour of an interpretation that gave the section widest possible import resulting in a blanket prohibition on the use of religion in election. The dissenting judgement assumes much significance for it espouses correct stand in this regard.
Though the intention behind the prohibition of using religion, either to seek the favour or to the detriment of another candidate is laudable, the mechanism devised should not be so restrictive as to have detrimental effect upon other constitutionally guaranteed rights of the citizens. While the fact remains that the broad and purposive interpretation used by the Supreme Court to justify its conclusion to give a sweeping effect to the provision itself suffers from serious defects.
In any democracy the process of election is a democratic negotiation between competing groups of interests to have their views represented in the corridors of power. A minority, be it a language or a religion, might want to voice their concern against any issue that threatens their existence, for which elections are one of the best tool provided under constitution. It is through the elections they are given a possibility to voice their views either by electing someone as their representative or by pressurising the political parties to consider their views. The conclusion of the majority, in its aim to thwart unhealthy influence of religion in elections, has completely ignored the need for sufficient latitude in the interpretation of the provision so that such legitimate concerns are not curtailed. In this light, the overt reliance of the majority view upon the purposive interpretation is not right, since the inherent conflict that the resultant interpretation has with certain fundamental rights under Constitution of India. Surprisingly the majority has brushed this aside lightly, citing Jamuna Prasad Mukhariya vs. Lachhi Ram (1955) 1 SCR 608, where the similar arguments raised upon objections raised as against Article 19(1)(a) were rejected by the bench. Being a bench of seven judges, which is a rarity on its own, this was a golden opportunity missed by the court to reverse it. In the process the subtle line of difference that must be drawn between its aim to secularise the electoral process and protecting the rights like freedom of speech and expression has been lost.
What is surprising is the fact that the past decisions of the Supreme Court, which were considered and rejected in the present case, offers the apt perspective in this regard. The Supreme Court, in the case of Jagdev Singh Sidhanti v. Pratap Singh Daulta (1964) 6 SCR 750, perfectly draws the subtle distinction between using such parochial considerations for ulterior motives and a legitimate use as part of electoral process that I am advocating here. The relevant passage is extracted here

“The corrupt practice defined by clause (3) of Section 123 is committed when an appeal is made either to vote or refrain from voting on the ground of a candidate’s language. It is the appeal to the electorate on a ground personal to the candidate relating to his language which attracts the ban of Section 100 read with Section l23(3). Therefore it is only when the electors are asked to vote or not to vote because of the particular language of the candidate that a corrupt practice may be deemed to be committed. Where, however for conservation of language of the electorate appeals are made to the electorate and promises are given that steps would be taken to conserve that language, it will not amount to a corrupt practice.” [Emphasis Supplied]

The Dissent

In all those rejoicing and unexpected attention paid to the majority view is the feeble voice of the dissenting judges, which was penned by Justice Dhananjay Chandrachud. The dissent strikes a distinct note in stark contrast with the majority view by providing the appropriate context in which the issue must be adjudicated to begin with. In a multicultural society like India it is impossible to divorce social institutions like religion, culture, language and other formative identities while considering such issues. Above all, if one looks at the Constitution, unlike other foundational documents around the world, it is these elements that are sought to be protected in some form or the other. This is in spite of the fact that its ultimate aim is to promote secular fabric for the society without such differences. The drafters of the constitution recognised this inner conflict but knew well that for any member of the society to become a part of the society it is vital to recognise and protect legitimate aspirations of his identity, be it cultural, religious or linguistic. This assurance by the state can only be ensured when they are given protection from any encroachment upon its safe practice while also providing a chance for them to voice their concern. It also includes the opportunity for them to be a part of the governing structure of the society, which can but be a result of social mobilisation. An oppressed class of citizenry can be mobilized only on those terms upon which they fell oppressed in the process of election; it would be silly to suggest anything otherwise. The fundamental rights in all its form were made with the sole intent of providing this to all the members of the society, in spite of the apparent conflict that it could cause with the constitutional ideals of secularism amongst others, resulting in forging of an unique constitutional identity. Reading it independent of this forged identity would render it to mere abstraction. This has been rightly pointed out in the dissent in the following words

"Social mobilisation is an integral element of the search for authority and legitimacy. Hence, it would be far-fetched to assume that in legislating to adopt Section 123(3), Parliament intended to obliterate or outlaw references to religion, caste, race, community or language in the hurly burly of the great festival of democracy."

The majority view has committed a grievous error in extending its misconceived notions of secularism here. The concept of secularism, at least in the Indian context, cannot be read to mean a society that is devoid of institutions and differences like religion and language. Here, it would mean a cohesion that coexists with such differences. It is not an anachronism in a democracy as it is portrayed in this decision.
This unfortunate decision is another addition to the series of regressive judgements that the Supreme Court has delivered in the recent times. Being a judgement delivered by a large of bench of seven judges it is going to prevail for a long time in the future. However, I put my belief upon the resilience of the Supreme Court to get back again, given its glorious history.