The Supreme Court has once again stepped in where successive legislatures have failed to tread. On critical counts of ensuring relief to the individual concerned while also protecting a woman’s right and legitimacy as an equal citizen, the apex court’s judgment holding instant and irrevocable talaq unconstitutional has rightfully been hailed as historic. Although the Court had, in Shamim Ara versus State of UP, already invalidated triple talaq in 2002, the majority judgment in the latest case takes a significant step forward by underlining that this utterly unjust practice is not protected under Article 25 (freedom of religion) of the Constitution. The triumvirate of judges who prevailed over Chief Justice JS Khehar and Justice S Abdul Naseer asserted that since the 1937 Sharia Application Act mentions the word talaq , it was no longer a personal law to escape the scope of the fundamental rights. Instant talaq or talaq-e-biddat , said Justice Rohinton F Nariman, is “manifestly arbitrary” and does not enjoy the protection of Article 25.
However, it is important to note that even while the apex court tilted in favour of gender justice, it confined itself to examining only triple talaq and not other practices such as polygamy and nikah halala (where a Muslim divorcee marries a man, divorces him to get remarried to her former husband) which had also been challenged through the PIL. Even in its examination of triple talaq , only talaq-e-biddat or instant and irrevocable talaq has been declared unconstitutional. The other two forms of triple talaq — talaq ahsan and talaq hasan which are revocable — have not been struck down. The split judgment leaves one critical question still open to answer: Who is the most appropriate authority to ensure reforms in the Muslim Personal Law? Is it the legislature, the courts or the Muslim religious organisations? Chief Justice Khehar and Justice Naseer, in their separate judgment, are of the view that the practice of talaq-e-biddat , however unjust, cannot be set aside on the violation of constitutional morality through a judicial order. The Court has also noted that the legislature missed the opportunity to address the question of gender inequality in the Shah Bano case.
In the Shah Bano case, the legislature overrode the Supreme Court’s verdict that a Muslim ex-husband would have to make continued maintenance payments to his divorced wife in addition to maintenance for a three-month iddat period after divorce required under the Islamic law. Indeed, the burden of promoting equality for women while simultaneously avoiding a fundamental alteration in the status of Islamic personal laws should not always have to be borne by the apex court. The legislature must rise to the occasion without being motivated either by the politics of alienating an already browbeaten community or the pressure of its conservative and utterly communal religious leaders.