The recent SC verdict on triple talaq is commendable for undoing the gender injustice.
However, the judgement failed to address some crucial constitutional questions.
What are the shortcomings?
Codification of personal laws - 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 brings it under the ambit of Article 13 of the Constitution and thereby providing for constitutional scrutiny.
Bombay High Court decision in 1951 is often referred by courts to hold that personal laws doesnot come under Article 13.
If the Supreme Court had held that personal laws are ‘laws in force’ under Article 13(1), the problem of discrimination, arbitrariness and gender bias in all personal laws would have been solved.
However the court has missed on this.
Court's jurisdiction - One of the majority judges held that talaq-e-biddat found no mention in the Koran, and was no part of Muslim personal law.
His judgement was based on the ground that talaq-e-biddat was un-Islamic, rather than unconstitutional.
This raises the question as to whether secular courts have the jurisdiction to adjudicate on such grounds.
Individual and community rights - The basic unit of the Constitution, as Ambedkar said, is the individual.
However, the minority judgement has placed community claims above the individual constitutional rights.
It has advanced the view that religion could become the arbiter of individuals’ civil status and civil rights.
Constitutional protection - There is a need for distinction between religious rituals and beliefs as against laws relating to tenancy, succession and marriage.
This distinction has not been properly conveyed.
Gender Discrimination - The Muslim women who challenged triple talaq invoked the Constitution because there was no equivalent within their personal law system.
The minority judgement denied this opportunity to an individual oppressed and unequally treated by her religious community.
The value of a Supreme Court judgment lies in the possibilities and avenues that it opens for the future, for further progressive-oriented litigation.
