The Supreme Court has spoken on triple talaq and the verdict is enormously welcome for the outcome. The practice, discriminatory and unjust to women, rightly stands struck down by the court. But the verdict is illuminating and valuable also because of the deliberative process that led to it, the issues and arguments that the 5-judge constitution bench agreed upon as well as the disagreements within.
Take the differences within the “majority” view on the bench. While emphasising that they are looking at the question before them “in a very narrow compass”, Justices Rohinton Fali Nariman and Uday Umesh Lalit held triple talaq to be violative of the fundamental right to equality contained in Article 14 of the Constitution.
Justice Kurian Joseph agreed with them that triple talaq must be struck down, but not because it fails the test on the anvil of Article 14. It must go, he said, because it is not an integral part of Islamic religious practice and is “against the basic tenets of the Holy Quran”. In effect, no wide, overarching or immutable principle was laid down by the court — it has not held that all personal laws must henceforth meet the constitutionality or fundamental rights or essential practices test.
At the same time, the “minority view” of two judges, which includes, notably, Chief Justice of India J.S. Khehar, urged the courts to approach matters of personal law with “absolute restraint”, underlining that these laws have constitutional protection. This verdict of a rainbow bench on a crucial minority and gender issue, needs to be read in its entirety — not by dividing it into its “majority” and “minority” components and privileging the former over the latter. It must be heeded as a plural whole, every strand of which is an essential part, necessary to take forward the debate.
There is a political context to the triple talaq debate. This verdict comes three decades after a government with a decisive majority in Parliament overturned a progressive court intervention on Muslim personal law in the Shah Bano case. Since that moment in 1986, the demand for reform has only grown louder within the Muslim community, particularly among its women, and it has compelled even the All India Personal Law Board to pay attention, and, in many cases, to bend.
But more recently, the coming to power of another government with a large mandate has sparked fears of majoritarianism among the minority. The several voices in which the five-judge bench of the Supreme Court has spoken on a practice seen as intolerable to all, therefore, mirrors and speaks to the complexity of the matter and its fraught political environment — and in doing so, offers perhaps the best chance for reform.
That the court has not unanimously or starkly framed the issue as an opposition between the constitution and personal law, may seem to some to be a missed chance to uphold constitutional values. But the lack of stridency and grand claims — while striking down the abominable practice of triple talaq — serves a valuable end: By acknowledging a minority’s community’s aspirations without being disrespectful of its apprehensions, it keeps open crucial spaces for reform.