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AUGUST 23, 2017

No, no, no: SC on instant triple talaq

  • A historic 3:2 majority judgment, delivered on Tuesday by a multi-faith Constitution Bench, set aside instant talaq as a “manifestly arbitrary” practice not protected by Article 25 (freedom of religion) of the Constitution.
  • Chief Justice J.S. Khehar held that talaq-e-biddat , as a personal law practice, was an integral part of Article 25 (freedom of religion). Ninety per cent of Muslims in India follow the practice. It was constitutionally protected as a fundamental right, he said.
  • The Chief Justice reasoned that talaq-e-biddat was in vogue for over 1,400 years, and this made instant talaq a “matter of religious faith,” which cannot be tested on the touchstone of Article 14. He held that personal laws like instant talaq were an ‘exception’ to the Constitution’s avowed aim to protect gender equality.
  • But Justice Nariman countered that Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 has already recognised triple talaq as a statutory right and not a fundamental right.Instant talaq was no longer a personal law to remain free from the rigours of the fundamental rights as it comes under the ambit of Article 13 of the Constitution, he said. Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the fundamental rights.
  • Objecting to the Chief Justice’s line of reasoning, Justice Kurian, in his separate verdict, held that “merely because a practice ( talaq-e-biddat ) has continued for long (over 1,400 years), that by itself cannot make it valid”.

Article 142

  • Chief Justice Khehar had invoked the extraordinary powers of the Supreme Court under Article 142 of the Constitution to injunct Muslim husbands from committing instant talaq for the next six months.
  • This six months’ time was for the government to frame a law addressing the issue of triple talaq, especially instant talaq.
  • This injunction has no validity now as the majority on the Bench has already set aside instant talaq.
  • However, the door is always open for the legislature to discuss the legality of the other two forms of triple talaq — talaq ahasan and talaq hasan.

In other countries

  • “When the British rulers in India provided succour to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind. Measures have been adopted for other religious denominations even in India, but not for Muslims. We would, therefore, implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance,” Chief Justice Khehar observed.
  • Moreover, the Chief Justice, who wrote the minority judgment for himself and Justice S. Abdul Nazeer, directed the government to frame a law to address the issue of Muslim women under the yoke of triple talaq, especially instant talaq. The minority verdict said social evils such as sati, infanticide and devadasi system were cast out by way of legislation and not by judicial orders.
  • However, the direction under Article 142 in the minority verdict failed to come alive as the majority of the judges on the Bench set aside instant talaq with immediate effect.

Gender equality

  • India is committed to gender equality and eradication of discrimination on the basis of sex, the minority verdict said. “We have not the least doubt, that the Indian state is committed to gender equality. This is the clear mandate of Article 14 (equality before law) of the Constitution. India is also committed to eradicate discrimination on the ground of sex. Articles 15 and 16 of the Constitution, prohibit any kind of discrimination on the basis of sex.”
  • “There is, therefore, no reason or necessity while examining the issue of ‘talaq-e-biddat’, to fall back upon international conventions.”


Governor raises questions on ordinance on SC/ST promotions

  • The Karnataka government’s attempt to safeguard reservation in promotions to Scheduled Castes (SC) and Scheduled Tribes (ST) in government jobs through an ordinance has run into rough weather.
  • Governor Vajubhai R. Vala on Tuesday returned the ordinance seeking clarifications on whether it was inevitable and urgent.
  • The ordinance had been approved in the previous Cabinet and sent to the Governor for approval, after the Supreme Court struck down the provision for reservation in promotions. The Governor is learnt to have advised the government that the issue needs a wider debate in the legislature.


Call of conscience may have cascading effect: CJI

  • In his minority judgment in the triple talaq case, Chief Justice of India J.S. Khehar expresses apprehension about the inroads “rationalists” may make into other “personal law” practices, and advises judges to exercise absolute restraint, and not activism, in matters of religious faith.
  • “A call of conscience may have a cascading effect … Attorney-General wanted ahasan and hasan [two other acceptable and revocable forms of triple talaq] to be declared unconstitutional. Halala and polygamy are already under challenge. It is not difficult to comprehend what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities,” the Chief Justice warned in his judgment, supported by Justice S. Abdul Nazeer on the Bench.

Be guarded

  • The Chief Justice goes on to observe that “we have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices and personal law.”
  • Having declared instant talaq a matter of religious faith, Chief Justice Khehar asks whether “a court, based on a righteous endeavour, can declare that a matter of faith, be replaced — or be completely done away with?”

Constitutional guarantee

  • “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 practising the same faith — unacceptable, in today’s world and age,” Chief Justice Khehar wrote.
  • He observed that a court of law has limited jurisdiction in matters of faith.

Call for law

  • The minority judgment asked the government to frame a law on triple talaq, especially instant talaq.
  • Advising “absolute restraint” while hearing matters of faith, the Chief Justice said an “activist court” may not be fully equipped to cope with the intricacies of an issue which requires legislative attention. At best, the court may advise and focus the attention of the state to the issue, “shake it from its slumber, goading it to awaken, march and reach the goal.”


‘Uranium sale talks at advanced stage’

  • Discussions are at a ‘well-advanced’ stage for Australia’s uranium sale to India, to fuel nuclear power plants in the energy-starved developing nation, according to an Australian government body’s top official.
  • Dismissing allegations that uranium supply was facing ‘delays’ due to the Australian coal mining sector ‘lobbying’ to protect its interests, the official, however, said coal exports will not slow down any time soon from Australia for use in India’s thermal power stations

‘Coal, largest in exports’

  • “We are supportive of assisting India in meeting its energy needs… There is no [emphasis on] one particular resource or energy solution. We engage with India across a broad range of energy opportunities… Australia has much to offer with regard to coal, uranium and potentially clean energy solutions… [However] historically, our largest exports to India has been coal, and we see that continuing for some time,” said the senior official.