Case Analysis: Shayara Bano v. Union of India AIR 2017 9 SCC 1 (SC).

Author: Arya Hartalakr.

CITATION

AIR 2017 9 SCC 1 (SC).

NAMES OF PARTIES

Petitioner: Shayara Bano;

Respondent: Union of India, Ministry of Law and Justice, Ministry of Women and Child Development, Ministry of Minority Affairs National Commission for Women, AIMPLB, Ahmad (Bano’s Husband).

JUDGES

Justice Jagdish Singh Khehar Justice;

Justice S. Abdul Nazeer Justice;

Justice Rohinton Fali Niraman Justice;

Justice Uday Umesh Lalit Justice;

Justice K.M. Joseph Justice.

INTRODUCTION

The practise of Muslim divorce by triple talaq was deemed unlawful by the Indian Supreme Court on August 22, 2017. Triple talaq (talaq-e-biddat) allowed Muslim males to divorce their wives with a single proclamation, bypassing the courts and legal authorities.

Shayara Bano, the petitioner, and other women who had an arranged divorce brought the case to court. A number of Muslim women’s organisations came to their aid. The Judges panel was split 3:2 on the verdict. All three majority judges agreed that triple talaq is unenforceable, but they did so for different reasons. When it comes to the practise of triple talaq, Justices Rohington Nariman and U. U. Lalit ruled that the 1937 Muslim Personal Law (Shariat) Application Act violates Article 14 of the Indian constitution, which guarantees the right to equality between men and women. Instead, Justice Kurian Joseph argued that the practise of triple talaq is not sanctioned by Islam and is therefore forbidden by law. Chief Justice Jagdish Singh Khehar and Justice Abdul Nazeer formed the minority, arguing that although triple talaq was undesirable, the courts could not strike it down and that only parliament could rule on the topic.

This decision is a watershed moment for the Indian women’s movement, which has been fighting for equal treatment under the country’s religiously-based personal laws((Mengia Hong Tschalaer, Muslim Women’s Quest for Justice.)). However, the issue of gender equality did not receive as much attention in the discussion as it deserved, and the judgement does not offer a clear road map for dealing with additional discriminatory features of the personal law system in the future.

FACTS

• Shayara Bano and Rizwan Ahmed enter into a marriage that would last for 15 years. In 2016, he gave her the talaq e biddat, also known as the immediate triple talaq, which is a form of divorce. She then went on to file a writ petition with the Supreme Court, arguing that the following three practises should be disregarded as unconstitutional on the grounds that they are in violation of Articles 14, 15, and 25 of the Constitution.
  • Talaq –e – biddat;
  • Polygamy (multiple spouses);
  • Nikah – halala.
• The practise of Nikah Halala, also known as tahleel marriage, is one in which a woman, after having been divorced by means of triple talaq and having consummated her marriage to another man, then, in order to remarry her first husband, she goes through the motions of securing a second divorce.
• On February 16, 2017, the court requested that Shayara Bano, the Union of India, numerous groups promoting women’s rights, and the All-India Muslim Personal Law Board provide written arguments about the aforementioned grounds of Talaq-ebiddat, Polygamy, and Nikah Halala.
• Ms. Bano’s petition received support from the Union of India as well as organisations working exclusively for the rights of women, such as the Bebaak collective and the Bhartiya Muslim Mahila, Andalon (BMMA). Their argument was that these practises violate the constitution.
• On the other hand, the All-India Muslim Personal Law Board issued a statement arguing that Article 25 of the Constitution protects the fact that these are some of the fundamental tenets of the Islamic religion, and that Article 13 of the Constitution states that uncodified Muslim Personal Law is not subject to the concept of constitutional judicial review.
• Shayara Bano’s petition was granted on March 30, 2017, when the Supreme Court established a constitutional bench with five judges and accepted the petition. The five-judge constitutional bench reached their decision on the constitutionality of the practise of immediate triple talaq on the 22nd of August 2017, with a majority vote of three judges to two judges.

ISSUES

1. Is the practise of talaq-e-biddat, in which the Instantaneous Triple Talaq is particularly mentioned, an important component of the Islamic faith?
2. Does the use of instantaneous triple talaq violate any of the fundamental rights guaranteed by the constitution?
3. Is it true that Article 25 of the Constitution protects the practise of Triple Talaq?
4. Does the Shariat Act have any applicability regarding the triple talaq?

JUDGMENT

The court conducted a multi-pronged analysis of the constitutionality of triple talaq. We first needed to determine if the Muslim Personal Law (Shariat) Application Act, 1937 made triple talaq a legal requirement. In that event, it would be open to review under the principle of fundamental rights. If this were not the case, then the next logical question would be whether or not the constitutionality of triple talaq could be tested in the context of uncodified personal law. All of the judges came to different conclusions about the first question.

The 1937 Act, according to Justices Nariman and Lalit. They concluded that the 1937 Act upheld and acknowledged all kinds of Talaq recognised and implemented by Muslim personal law. Therefore, Triple Talaq must be included. (Paragraph 18). The 1937 Act was passed before the Constitution went into effect, so it is not currently a law but would be “struck by Article 13(1) if judged to be inconsistent with the provisions in Part III of the Constitution” (Paragraph 19).

This view was rejected by Justices Joseph, Khehar, and Nazeer. “The 1937 Act simply renders Shariat relevant as the norm of decision.” as stated by Justice Joseph. Thus, while talaq is regulated by Shariat, the 1937 Act does not codify the particular grounds and processes for talaq((Mengia Hong Tschalaer, Muslim Women’s Quest for Justice.)) (paragraph 4).

The next point that sparked varying opinions was whether or not triple talaq was a part of Muslim personal law that had never been formalised. Justice Joseph responded negatively, but Justices Khehar and Nazeer both answered yes. The Supreme Court’s Justice Joseph reached his conclusion after studying the Quran and Islamic legal literature. According to his interpretation of the Quran, talaq is permissible only after an attempt at reconciliation has been made. In the event of triple talaq, however, reconciliation is not an option, hence the procedure must be deemed to be “against the essential precepts of the Holy Quran and, accordingly, it breaches Shariat”((BBC, Triple Talaq: How Indian Muslim Women Fought, and Won, the Divorce Battle, August 22, 2017, http://www.bbc.co.uk/news/world-asia-india-40484276 (last accessed on 18 September 2017).)) (Paragraph 10).

These arguments are similar to those found in the aforementioned Guwahati High Court rulings and the Supreme Court’s decision in Shamim Article 34. For example, Justice Joseph observed, “Merely because a practise has existed for a long time, that alone cannot make it lawful if it has been specifically proclaimed to be impermissible.” (Paragraph 24) He then draws the following conclusion: “What is deemed to be terrible in the Holy Quran cannot be good in Shariat and, in that sense, what is wrong in theology is bad in law as well” (paragraph 26).

On the other hand, Justices Khehar and Nazeer considered triple talaq to be an element of uncodified Muslim personal law (for Sunni Muslims belonging to the Hanafi school) (paragraph 145) and so had to decide whether or not it could be challenged against the constitution. Both judges gave a negative response to this query. In their view, this was so because “protected from invasion and breach, except as provided for and under Article 25” personal laws of any religious group (paragraph 146). Specifically, this view has been criticised since it treats a statute, rather than a human, as being protected by Article 25. Due to their conclusion that Article 25 rights only applied to State action against persons, the justices saw no purpose to discuss the relationship between Article 25 and Articles 14, 15, and 21 as “other provisions of this chapter,”((For instance, Danial Latifi v. Union of India (2001) 7 SCC 740; Shah Bano, John Vallamatom v. Union of India (2003) 6 SCC 611)) to which religious freedom is “subject to” Article 25(1). (Paragraph 165).

After much deliberation, they came to the conclusion that “what the constitution decrees us, not only to safeguard, but also to enforce, cannot be nullified and declared as unacceptable in law.” In Article 25, the Constitution mandates that all Courts must uphold “personal laws” and not find fault with them. It is very evident that the courts have no business meddling in ‘personal law.’ (Paragraph 195). The court “directs the Union of India to consider relevant legislation, particularly with reference to talaq-e-biddat.” (Paragraph 199).

In light of the decision by Justices Nariman and Lalit, who held that the 1937 Act had enshrined the practise of triple talaq into statutory law and thus made it subject to fundamental rights scrutiny, the next question was whether Section 2 of the 1937 Act, to the extent that it authorised triple talaq, actually violated any constitutional provisions and was therefore insofar unconstitutional and void. In a move reminiscent of Justices Khehar and Nazeer above, the justices first established whether or not triple talaq was “saved” by Article 25 before addressing a breach of Article 14. However, both Nariman and Lalit disagreed with their colleagues’ judges and said that Article 25 could not be used in this way. Instead, they argued that theologically problematic triple talaq did not qualify as an “essential religious practise” and hence lacked protection under Article 25(1). (Paragraph 25). The court ruled that it did not need to “bounce the ball back to the legislature” (paragraph 25) and instead made the decision. In this light, the Supreme Court’s decision in Ahmedabad Women Action Group case was criticised for having “no ratio” and being internally inconsistent (paragraph 30).

After making this statement, the judges moved on to the meat of the matter, which was whether or not the 1937 Act was a violation of any constitutional provision, in this case Article 14. It was contended by the justices, citing numerous Supreme Court decisions, that “legislation might be knocked down on the premise that it is arbitrary and, consequently, violative of Article 14 of the Constitution” (paragraph 54).((BBC, Triple Talaq: How Indian Muslim Women Fought, and Won, the Divorce Battle, August 22, 2017, http://www.bbc.co.uk/news/world-asia-india-40484276 (last accessed on 18 September 2017).)). This “test of manifest arbitrariness” was then applied to the situation at hand. The judges found that “this kind of Talaq is plainly arbitrary in the sense that the marital tie might be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it (paragraph 56) since triple talaq is lawful without any “reasonable cause.” Therefore, it is imperative that Article 14 of the Indian Constitution be interpreted to prohibit this type of talaq because it violates the rights of women.

Therefore, the Court hold that the 1937 Act falls under the definition of “laws in effect” in Article 13(1) to the extent that it tries to recognise and enforce Triple Talaq, and that it must be declared null and void to that degree (paragraph 57). As a result, the practise of triple talaq was overturned by a majority of 3:2, with Justices Nariman and Lalit agreeing with Justice Kurian Joseph despite their differing lines of reasoning.

ANALYSIS

Given the court’s history of avoiding detailed engagement with the personal laws, this judgement is unusually courageous and may be called a “landmark decision”, which represents “a marker moment of the women’s movement in India.” It was also admirable that the bench was made up of people of different faiths in order to present a neutral and nuanced perspective on the issue. This is not to downplay the need for more women on the bench, though (and of the Indian Supreme Court in general).

Feminist academics have noted that the gender angle was underdeveloped in the verdict. Although Articles 14 and 15 were referenced in various arguments, the verdict did not address the junction of gender and religious identity. There were numerous citations from Islamic legal scholars in the decision, but no women’s rights or feminist legal specialists were included. Triple talaq was criticised because “the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it,” as Ratna Kapur points out. The lauded opinion of Justices Nariman and Lalit was ultimately concerned with the preservation of marriage, not women’s rights((Ratna Kapur, Triple Talaq Verdict: Wherein Lies the Much-Hailed Victory? The Wire, 28 August 2017, https://thewire.in/171234/triple-talaq-verdict-wherein-lies-the-much-hailed-victory/.)) (paragraph 57).

Therefore, while the decision was an improvement, it fell short of what could have been accomplished if efforts to promote gender parity had been prioritised. Although the Court spent much time discussing whether or not triple talaq was “protected” under Article 25, it did not take a firm stance on how gender equality (Articles 14 and 15) related to religious freedom (Article 25). Similarly, it refrained from explicitly rejecting Narasu Appa Mali’s authority. Since the court only invalidated one type of talaq, the other two types, talaq-e-ahsan and talaq-e-hasan, are still in effect, and Muslim men can still legally divorce their wives with the talaq pronouncement over a period of a few months. However, these variations of talaq still fail to meet the norms of gender equality since they offer Muslim husbands a unilateral authority to divorce their wives while denying Muslim women the same right. Because of its narrow focus, the judgement cannot serve as a benchmark against which future challenges to discriminatory personal law rules can be measured and is thus restricted in scope.

Long explanations of Islam and Muslim personal law (particularly in the opinion of Justices Khehar and Nazeer) raise questions about whether or not they were truly essential. It appears that the justices also wanted to reassure the Muslim community that their worries were being taken seriously by devoting so many pages to Islam and Muslim personal law. But this comes with its own set of problems: the longer the judgement and the more internal contradictions its argumentation contains – and there are quite a few contradictions in this judgement – the more it can be (mis)used by cherry picking those arguments that were made in obiter dictum statements of this case((Subhashini Ali, The Triple Talaq Ruling Is a Step Forward, but There Is a Long Way to Go for Gender Justice Laws, The Wire, (24 August 2017).)). In the grand scheme of things, this verdict was a positive development. However, that was just the beginning, and more work is required. It’s encouraging to see that this case has spurred discussions on discriminatory characteristics in other legal domains, such as other personal laws and the Indian rape law.((Maya Mirchandani, Triple Talaq and Marital Rape: Politics and Patriarchy Trump Gender Justice, The Wire.))

CONCLUSION

In my view the judgment was correct, but it didn’t throw light on many related issues. The judges gave a landmark judgment however, many relevant and important points were not highlighted. Court passed the correct judgment but the ignorance to look in detail with some issues of personal laws can be observed. The legal position of talaq-e-biddat was not changed by the court in the complete sense thus it created some confusion regarding the personal law’s constitutionality in India. The judgment could have been thrown light on all issues would have made it a ground-breaking judgment.

This case is one of the important cases in India regarding the personal laws. It can be definitely observed that the Supreme Court has made many corrections while declaring the triple talaq unconstitutional. If the issues of gender inequality in personal laws was highlighted in the judgment, it could have been served a holistic purpose of solution to all the problems related personal laws in India of the same nature.

The Supreme Court made an appreciable job by declaring triple talaq unconstitutional. It made the married life of Muslim women secured and protected them from any divorce of unilateral nature. This judgment gave rise to voice of the women who were oppressed and couldn’t openly speak under the undue influences. This judgment has definitely increased the faith on Indian judiciary that the courts are to protect the rights of the people. This judgment has definitely severed its primary purpose to give justice to the victims of practice of triple talaq.