However however however

However however however

Shaista Ambar, the president of the All India Muslim Women Personal Law Board, had stated in 2016 that “Indian Muslim women will walk with the Quran in one hand and the Constitution in the other”. A five-judge bench of the Supreme Court on Tuesday, while disposing a batch of petitions that challenged the constitutional validity of instantaneous triple talaq (talaq-ul-biddat), held the practice to be un-Islamic as well as unconstitutional. This mirrored Ambar's statement.

While the Bharatiya Muslim Mahila Andolan (BMMA) and the Bebaak Collective, two Muslim women's groups that were parties to this petition, had relied (depend on with full trust or confidence) on ecclesiastical and constitutional interpretations respectively to establish the practice to be patently discriminatory against women, it was disappointing to find a `diverse' constitutional bench in its split 3-2 verdict unable to articulate (स्पष्ट) a jurisprudence of gender justice, or evolve a framework of constitutional governance by making religion, non-discrimination and the Constitution speak to each other.

While the progressive outcome of the judgement is indeed laudatory (praising), one can't help but note the limited -and, in some cases, regressive (descending) -reasoning’s extended by the bench to arrive at its findings.

The minority opinion of Justices J S Khehar and Abdul Nazeer on the question of the validity of triple talaq found the practice discriminatory. Yet, it advocates instant triple talaq's protection by holding that “the stature of `personal law' is that of a fundamental right”. This is truly inexplicable (अबोध्य) . Personal law is neither a fundamental right nor is it protected by Article 25 of the Constitution, which protects individuals, not `laws'.

Then they went on to add that personal law is only bound by “public order, health and morality “inscribed in Article 25 (1), implying that instant triple talaq does not offend gender equality and non-discrimination, which go at the heart of constitutional morality. Indeed, in Paragraph 193 of the judgment, Chief Justice Khehar reasons that “it is not open to a court to accept an egalitarian (believing in the principle that all people are equal and deserve equal rights and opportunities) approach, over a practice which constitutes an integral part of religion”. And yet, he carefully avoided establishing that instantaneous triple talaq is an essential practice of Islam, as mandated by the essential practices test itself.

Arbit, Bit by Bit

For a constitutional court to reason thus, although in a minority opinion, that religion is `a matter of faith, and not of logic', and is protected from constitutional scrutiny (छानबीन/जांच) , is distressing. Tomorrow, if a community decides that bride-burning is a matter of faith, and it follows no logic, will a constitutional court not rise to the occasion, scrutinise it and declare it unconstitutional?

The majority opinion of Justices R F Nariman, U U Lalit and Kurian Joseph adopted different reasons to invalidate instant triple talaq. Nariman, writing for himself and Lalit, concludes that the practice is unconstitutional because it is arbitrary.

He finds the Muslim Personal Law (Shariat) Application Act, 1937, had codified all Muslim personal law, including the practice of triple talaq, which rendered itself to constitutional scrutiny.

He reasoned that because instant triple talaq allowed Muslim husbands an unbridled power to divorce their wives, without any possibility for reconciliation (सुलह/ मिलान), it must be arbitrary, failing the test of Article 14 of the Constitution that mandates equality before law. Thus, arbitrariness becomes the reason for invalidating triple talaq, whereas non-discrimination based on sex inscribed in Article 15, which ought to have been the primary reason, remained secondary. One can only consider this as a lost opportunity for the court to articulate a gendered reading of the Constitution.

It is astounding that the judges did not entertain the question of non-discrimination. Indeed, the express silence on the question of non-discrimination is telling in the face of the fact that the campaign to abolish instant triple talaq is inextricably (in a way that is impossible to disentangle or separate) linked to the emergence of Muslim women's activism over the last decade or so. The petitioners in this case bare testimony to that.

The second strand of the majority opinion from Justice Joseph offered a crisp (भंगुर/ कडकीला) reasoning to invalidate instant triple talaq as un-Islamic. He effectively reiterated multiple high court judgements leading to the 2002 Supreme Court judgement in the `Shamim Ara v State of UP' case, which had invalidated triple talaq, to rule that instant triple talaq is invalid as it leaves no scope for reconciliation as required by the Quran.

What is bad in theology must be bad in law, he held. It would have been interesting to see what opinion Joseph's swing vote' would have provided about the elephant in the room -uncodified personal laws -and whether they are subject to the test of the Constitution. But Joseph avoids the subject.

Nariman's Point

Perhaps the avoidance stemmed from the court's reluctance to deal with this question headlong in the decades following the infamous Bombay High Court decision in the 1952 `State of Bombay v Narasu Appa Mali'. In this case, the court stated that uncodified personal laws are not laws within the ambit of Article 13 of the Constitution. So, they need not be tested against its provisions.

The saving grace of this missed opportunity is Justice Nariman observing that the wrong of `Narasu' could be corrected in an appropriate case in the future. One can only hope that such an appropriate case is heard in Nariman's court in the near future.