Why in news?
Supreme Court has invalidated the triple talaq practise by calling it arbitrary and unconstitutional in a 3-2 majority judgment.
What are the justifications of minority judges?
- Two of the five judges have argued that talaq as a personal law practise was an integral part of Article 25 (Freedom of Religion).
- It has been practised for over 1,400 years hence becomes a matter of firm religious faith and that it cannot be tested on the touchstone of Article 14.
- They held that personal laws like instant talaq were an 'exception' to the Constitution's stated aim to protect gender equality.
- They had reasoned that instant talaq cannot be invalidated just because the Koran does not expressly provide for or approve of it.
What are the justifications of the majority judges?
- Three of the five judges have set aside instant talaq terming it as ‘manifestly arbitrary’ which makes it violative of Article 14 (Right to Equality).
- Social - A mere prevalence of the practise for over 1,400 years itself cannot make it valid.
- An individual's dignity and equality is placed at the mercy of their communities by this practise.
- Religious - It is noted that triple talaq is against the basic tenets of the Holy Koran.
- Shariat Act had in the past put an end to unholy, oppressive and discriminatory customs and usages in the Muslim community.
- So similarly Triple Talaq can also be invalidated.
- Legal - A section of the Muslim Personal Law (Shariat) Application Act of 1937 has already recognised triple talaq as a statutory right and not a fundamental right.
- This makes triple talaq outsie the ambit of Article 25.
- Hence it was made clear that instant talaq was no longer a personal law and it comes under the ambit of Article 13 of the Constitution.
- Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the fundamental rights.
What are the shortcomings?
- The narrow majority with which the judgement has come raises doubts on the long term impact on the issue of community rights over individual rights.
- Only Triple Talaq (Talaq-e-biddat) is invalidated. The other forms of Talaqs like ‘Talaq Hasan’ and ‘Talaq Ahsan’ are still available to Muslim men.
- Though it reached the right conclusion, there was no consensus on first principles.
- The majority has not ruled that our basic constitutional values override religious belief and practice and as a result proper precedent was not set.
- A more elaborate consideration of how Article 14 might affect personal laws would have laid down a better precedence for the future.
Source: The Hindu, Indian Express
