Author : Nilakshi Suryawanshi, a student at Dr. Babasaheb Ambedkar Memorial College of Law, Dhule
ABSTRACT
The landmark case of SHAYARA BANO V. UNION OF INDIA (2017) marked a pivotal moment in Indian jurisprudence, especially concerning gender justice and the safeguarding of fundamental rights. The Supreme Court of India’s judgment in this case declared the practice of instantaneous triple Talaq (Talaq-e-biddat) unconstitutional. This article delves into the legal reasoning behind the judgment, the contrasting perspectives within the court, and its broader implications for gender equality, religious freedom, and the evolution of personal law in India.
INTRODUCTION
The controversial practice of triple Talaq, an Islamic form of divorce allowing a Muslim man to instantly divorce his wife by pronouncing “Talaq” three times, has been a significant subject of debate in India. Rooted in Sharia law, this practice faced criticism for being arbitrary, unjust, and discriminatory toward Muslim women. For decades, women’s rights activists and legal scholars called for its abolition, arguing that it violated the principles of justice, equality, and human dignity. Shayara Bano’s petition challenging the constitutionality of triple Talaq culminated in a landmark judgment by the Supreme Court of India, significantly advancing the cause of gender equality within the framework of Indian law.
LEGAL BACKGROUND AND ARGUMENTS
The key arguments in SHAYARA BANO V. UNION OF INDIA centred around the constitutionality of triple Talaq. The main points raised are as follows:
A. PETITIONER (SHAYARA BANO) :
◉ TRIPLE TALAQ VIOLATES FUNDAMENTAL RIGHTS, SPECIFICALLY:
(1) ARTICLE 14: RIGHT TO EQUALITY
Article 14 ensures that all citizens are treated equally under the law and prohibits discrimination on the basis of religion, race, caste, sex, or place of birth. Triple Talaq was argued to violate this right because it allowed men to unilaterally end a marriage without giving women the same right, creating an unequal and discriminatory situation.
(2) ARTICLE 15: PROHIBITION OF DISCRIMINATION
Article 15 prohibits the state from discriminating against any citizen on grounds of religion, race, caste, sex, or place of birth. The petitioner argued that triple Talaq inherently discriminates against women based on their gender, perpetuating inequality within the community.
(3) ARTICLE 21: RIGHT TO LIFE AND PERSONAL LIBERTY
Article 21 protects the life and personal liberty of individuals. The petitioner claimed that triple Talaq violated this right as it deprived women of their marital security without any fair procedure, thereby impacting their personal liberty and dignity.
(4) ARTICLE 25: FREEDOM OF RELIGION
Article 25 grants the freedom to practice, profess, and propagate religion. However, this right is subject to public order, morality, and health, and does not protect practices that are arbitrary or discriminatory. The petitioner argued that triple Talaq should not be protected under this article because it violates the principles of equality and justice.
◉ THE PRACTICE IS ARBITRARY AND DISCRIMINATORY: Triple Talaq was argued to be arbitrary because it allowed men to dissolve a marriage instantaneously and unilaterally, without any legal recourse or opportunity for reconciliation for the woman. This discriminatory practice was seen as violating the basic tenets of equality and justice guaranteed by the Constitution.
B. UNION OF INDIA :
◉ TRIPLE TALAQ IS NOT AN ESSENTIAL RELIGIOUS PRACTICE IN ISLAM: The Union of India argued that not all practices within a religion are essential to that religion’s faith and practice. They contended that triple Talaq was not an integral or essential part of Islamic teachings and therefore could be subject to judicial review and constitutional scrutiny.
◉ ROOTED IN PATRIARCHAL TRADITION RATHER THAN RELIGIOUS DOCTRINE: The Union of India emphasized that triple Talaq is more a product of patriarchal customs than a religious mandate. They argued that this practice has been misinterpreted as a religious obligation, whereas it is fundamentally discriminatory and undermines the dignity of women.
◉ ABOLISHING TRIPLE TALAQ PROTECTS WOMEN’S RIGHTS: By challenging triple Talaq, the Union sought to protect the fundamental rights of Muslim women, ensuring that their right to equality, non-discrimination, and personal liberty is upheld. The government maintained that this protection aligns with constitutional values without infringing on the genuine freedom of religion.
C. ALL INDIA MUSLIM PERSONAL LAW BOARD (AIMPLB) :
◉ TRIPLE TALAQ AS INTEGRAL TO ISLAMIC PERSONAL LAW: AIMPLB argued that triple Talaq is a practice deeply embedded in Islamic personal law, which has been practiced for centuries. They contended that personal laws are protected under Article 25, which guarantees the freedom to manage religious affairs according to the tenets of one’s faith.
◉ PROTECTION UNDER ARTICLE 25: AIMPLB maintained that triple Talaq is a matter of religious faith and practice, and any interference would violate the community’s right to religious freedom as enshrined in Article 25. They argued that since personal laws are a manifestation of religious beliefs, they should not be subject to judicial intervention.
◉ INTERFERENCE IN TRIPLE TALAQ AND RELIGIOUS FREEDOM: AIMPLB warned that judicial interference in the practice of triple Talaq would set a precedent for the state to intrude into religious practices, thereby infringing on religious freedoms. They advocated that any reform should come from within the community rather than through state intervention.
THE SUPREME COURT’S JUDGMENT
The Supreme Court delivered a split judgment with a 3:2 majority declaring triple Talaq unconstitutional. The five-judge bench, comprising members from various religious backgrounds—Hinduism, Islam, Christianity, Sikhism, and Zoroastrianism—symbolized the secular fabric of India’s judiciary. The diversity of the bench was seen as a testament to the court’s commitment to delivering a balanced and inclusive judgment.
MAJORITY OPINION
Justices Rohinton Nariman, U.U. Lalit, and Kurian Joseph formed the majority opinion. Justice Nariman, writing the lead opinion, held that the practice of triple Talaq was manifestly arbitrary as it allowed a Muslim man to unilaterally and irrevocably dissolve the marriage without any attempt at reconciliation. This, he argued, violated ARTICLE 14 of the Constitution, which guarantees the right to equality before the law. He asserted that any practice that allows one party to terminate a marital relationship without due process is inherently discriminatory and cannot be sustained in a legal system that upholds justice and equality.
Justice Kurian Joseph, while concurring with Justice Nariman, added a theological dimension to the judgment. He emphasized that triple Talaq was not sanctioned by the Quran and, therefore, could not be considered an essential religious practice. Justice Joseph argued that Islamic law, as derived from the Quran, emphasizes justice and equity in marital relations, and any practice that contravenes these principles cannot claim religious sanctity. He stated that what is not essential to religion is not protected under ARTICLE 25, which guarantees freedom of religion.
MINORITY OPINION
Chief Justice J.S. Khehar and Justice Abdul Nazeer dissented. They argued that triple Talaq, being a part of Muslim personal law, was protected under ARTICLE 25 and could not be invalidated by the courts. They maintained that personal laws, being a matter of religious practice, are beyond the scope of judicial review. They suggested that any change in this practice should come through legislative action rather than judicial intervention. Chief Justice Khehar, in his dissenting opinion, proposed a six-month injunction on triple Talaq to allow Parliament to enact a law addressing the issue, reflecting his belief in a more cautious and deferential approach to reforming personal laws.
PROOF AND LEGAL REASONING
The majority’s reasoning was grounded in the principle that any law or practice that is arbitrary and discriminatory cannot be sustained under the Constitution. By allowing a Muslim man to divorce his wife instantly without due process or recourse to reconciliation, triple Talaq was deemed arbitrary and violative of ARTICLE 14. The court also emphasized the need to balance religious freedom with the protection of fundamental rights, particularly when religious practices infringe upon the rights of individuals.
The judgment referenced several Islamic scholars and texts to establish that triple Talaq was not an essential practice in Islam, thus weakening the defence that it was protected under ARTICLE 25. The court also drew from previous judgments, such as Narasu Appa Mali and Shamim Ara, which had questioned the validity of arbitrary religious practices that infringe upon fundamental rights. The ruling reinforced the notion that personal laws, while rooted in religion, must conform to the constitutional principles of equality, justice, and non-discrimination.
IMPACT AND IMPLICATIONS
The Shayara Bano judgment has far-reaching implications for the interpretation and application of personal laws in India. It reinforced the idea that all personal laws, regardless of their religious origin, must conform to the principles of the Constitution, particularly regarding gender equality and non-discrimination. The judgment also set a significant precedent for future challenges to discriminatory practices within personal laws, emphasizing that no practice is above the law when it comes to protecting individual rights.
Following the judgment, the Indian Parliament enacted the MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019, which criminalized the practice of triple Talaq. This legislative response not only solidified the court’s decision but also provided legal recourse for Muslim women affected by the practice. The act was hailed as a major victory for women’s rights in India, although it also sparked debates about the criminalization of civil issues and the potential for misuse of the law.
CONCLUSION
The case of SHAYARA BANO V. UNION OF INDIA is a landmark in the pursuit of gender equality in India. By striking down triple Talaq, the Supreme Court affirmed the primacy of the Constitution over personal laws and set a precedent for future challenges to discriminatory practices. The judgment was a bold affirmation of the principles of justice, equality, and non-discrimination, and it reinforced the idea that religious practices must evolve in line with contemporary values of human rights and gender justice. While the judgment was not without controversy, it remains a significant step toward ensuring justice and equality for all citizens, irrespective of their religion.
FREQUENTLY ASKED QUESTIONS (FAQS)
Q1: WHAT IS TRIPLE TALAQ?
A: Triple Talaq, or Talaq-e-biddat, is a form of Islamic divorce that allows a Muslim man to divorce his wife instantly by pronouncing “Talaq” three times. This practice has been criticized for being arbitrary and discriminatory towards women.
Q2: WHAT WAS THE MAIN ISSUE IN THE SHAYARA BANO CASE?
A: The main issue was whether the practice of triple Talaq, as recognized under the MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937, could be challenged as unconstitutional under the Indian Constitution. The case centred on the conflict between religious freedom and fundamental rights.
Q3: WHAT DID THE SUPREME COURT DECIDE?
A: The Supreme Court, in a 3:2 majority, declared triple Talaq unconstitutional, holding that it was arbitrary and violated the right to equality under ARTICLE 14 of the Constitution. The judgment was seen as a victory for women’s rights and gender equality.
Q4: WHAT IS THE SIGNIFICANCE OF THIS JUDGMENT?
A: The judgment is significant as it advances gender equality in India by striking down a discriminatory practice. It also reinforces the idea that all personal laws must align with constitutional principles, especially regarding non-discrimination and equality before the law.
Q5: DID THE JUDGMENT HAVE ANY LEGISLATIVE FOLLOW-UP?
A: Yes, following the judgment, the Indian Parliament enacted the MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019, which criminalized the practice of triple Talaq. This act provided legal protection for Muslim women and ensured that the practice of instantaneous divorce would no longer be tolerated under Indian law.
