Why CJI JS Khehar, Justice Abdul Nazeer didn’t declare Triple Talaq unconstitutional

Chief Justice JS Khehar and Justice Abdul Nazeer said the practice of triple talaq is “sinful in theology” but the apex court can’t interfere in personal laws.

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Supreme Court of India. (PTI Photo)

Even as the Supreme Court of India today set aside the practice of talaq-e-biddat, or triple talaq, by a majority of 3:2, Chief Justice JS Khehar and Justice Abdul Nazeer said the apex court can’t interfere in personal laws, which enjoy the status of fundamental rights under the Constitution. In their dissenting judgement, the two judges refused to be swayed by the “aggressive posture” adopted by the Centre, Muslim women groups and media on triple talaq issue.

“The whole nation seems to be up in arms. There is seemingly an overwhelming majority of Muslim-women, demanding that the practice of ‘talaq-e-biddat’ which is sinful in theology, be declared as impermissible in law. The Union of India, has also participated in the debate. It has adopted an aggressive posture, seeking the invalidation of the practice by canvassing, that it violates the fundamental rights enshrined in Part III of the Constitution, and by further asserting, that it even violates constitutional morality,” they said.

The judges observed, “During the course of hearing, the issue was hotly canvassed in the media. Most of the views expressed in erudite articles on the subject, hugely affirmed that the practice was demeaning. Interestingly, even during the course of hearing, learned counsel appearing for the rival parties, were in agreement, and described the practice of ‘talaq-e-biddat’ differently as, unpleasant, distasteful and unsavory. The position adopted by others was harsher, they considered it as disgusting, loathsome and obnoxious. Some even described it as being debased, abhorrent and wretched.”

However, the judges concluded that triple talaq is a “matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi school.” They said, “It (triple talaq) constitutes a matter of their faith. It has been practiced by them, for at least 1400 years.

They said that the practice of triple talaq doesn’t breach the “constraints provided for under Article 25 of the Constitution” and the practice, which was a component of “personal law” has the protection of Article 25.

“Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others (-and even rationalists, practicing the same faith) unacceptable, in today’s world and age,” the judges said, adding,  “The Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers. It is this religious consciousness, which binds believers into separate entities. The Constitution endevours to protect and preserve, the beliefs of each of the separate entities, under Article 25.”

CJI Khehar and Justice Nazeer couldn’t persuade themselves in support of the petitioners’ concerns. “We cannot accept the petitioners’ claim, because the challenge raised is in respect of an issue of ‘personal law’ which has constitutional protection,” said.

The judges acknowledged that prayers made to the court presented an opportunity to “assuage the cause of Muslim women.” and that the “opportunity should not be lost.” However, they were “satisfied” that it would not be the “rightful course to tread.”

“We were obliged to keep reminding ourselves, of the wisdoms of the framers of the Constitution, who placed matters of faith in Part III of the Constitution. Therefore, any endeavour to proceed on issues canvassed before us would, tantamount to overlooking the clear letter of law. We cannot nullify and declare as unacceptable in law, what the Constitution decrees us, not only to protect, but also to enforce,” they wrote in the judgement.

Both judges said, “Accepting the petitioners prayers, would be in clear transgression of the constitutional mandate contained in Article 25. Such a call of conscience, as the petitioners desire us to accept, may well have a cascading effect.”

“We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and ‘personal law’…It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith).

While mentioning that Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith, the judges said, “There can be no doubt, and it is our definitive conclusion, that the position can only be salvaged by way of legislation. We understand, that it is not appropriate to tender advice to the legislature, to enact law on an issue.”

Commenting on Centre’s stand, the judges said, “The stance adopted by the Union of India is sufficient for us to assume, that the Union of India supports the petitioners’ cause. Unfortunately, the Union seeks at our hands, what truly falls in its own.”

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