SC verdict on Triple Talaq (Shortcomings? (The narrow majority with which…
SC verdict on Triple Talaq
Why in news?
Supreme Court has invalidated the triple talaq practise by calling it arbitrary and unconstitutional in a 3-2 majority
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
They had reasoned that instant talaq cannot be invalidated just because the Koran does not expressly provide for or approve of it.
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.
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 oppressive and discriminatory customs 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 outside the ambit of Article 25.
Hence it was made clear that instant talaq was no longer a personal law and it comes under Article 13
Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the
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 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.
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
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.