The Supreme Court is presently considering the legal validity of triple talaq under Muslim personal law. According to reports, yesterday, the Centre filed its affidavit before the Court, stating that triple talaq violates gender equality and women’s dignity, and also that “no undesirable practice can be elevated to the status of an essential religious practice.”
While I do not have access to the Centre’s affidavit, the phrase “essential religious practice” appears to have been used in response to the Muslim Personal Law Board’s affidavit, which, inter alia, sought protection for triple talaq under Articles 25 and 26 of the Constitution. In my view, this indicates a line of argument which would take the Supreme Court down the wrong path, and ought to be resisted. The use of the phrase “essential religious practice” (as has been discussed many times on this blog) is an integral part of the Supreme Court’s religious freedom jurisprudence under Articles 25 and 26, and acts as a threshold test for according constitutional protection to religious practices. Conceptually, however, triple talaq does not come within the category of practices that fall within the scope of Articles 25 and 26.
There are two reasons for this. The first is based in precedent. In Narasu Appa Mali, the Bombay High Court held that personal laws (which had not been codified under a statute) were not to be tested on the touchstone of Part III of the Constitution. This proposition was affirmed by the Supreme Court in Krishna Singh vs Mathura Ahir. Article 25 of the Constitution expressly states that “subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” If personal laws fell within the scope of Article 25, therefore, they would be “subject to other provisions of [Part III]”. At the same time, as per Narasu Appa Mali and Krishna Singh, personal laws are exempt from Part III scrutiny. In its counter-affidavit, therefore, the Muslim Personal Law Board rests its case upon two legal prongs that are contradictory. It cannot say that personal laws are exempt from Part III scrutiny, and simultaneously argue that they are protected by Articles 25 and 26.
The proposition that personal laws do not fall within the scope of Articles 25 and 26 is further buttressed by the debates during the framing of the religious freedom clauses. As Ambedkar famously argued, in a speech that we have discussed often on this blog:
““The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.”
I focus on succession, because marriage – like the law of succession – belongs in the domain of personal law (i.e., the law that is based upon the personal status of the parties) which, as Ambedkar pointed out, was never meant to be protected by Articles 25 and 26. This, along with Narasu Appa Mali and Krishna Singh, makes it clear that the issue of whether triple talaq is an “essential religious practice” under Islam is irrelevant to the present enquiry, and the Court should refrain from going into a question that will – yet again – make it the arbiter of religious doctrine (note, in particular, that the Centres affidavit seems to argue that any religious practice that runs counter to constitutional principles cannot, by that reason, be called an “essential religious practice”. This is an interesting legal fiction to press before the Court – and the Court is no stranger to adopting such legal fictions – but it remains a highly problematic one, for reasons that have been extensively discussed before.)
There are, of course, other avenues open to the Court. While issuing notice, the Court called triple talaq a “customary” practice. In Madhu Kishwar vs State of Bihar, the Supreme Court held that customary laws would be subject to Part III (while personal laws remained exempt). However, the distinction is superficial at best, and furthermore, if – as in Narasu Appa Mali – bigamy under Hindu traditions was held to fall within the domain of personal law, then it is unclear how triple talaq will not fall within personal law. Another option would be to import the “essential religious practices” test from Article 25 into the domain of personal law, on the basis that personal law, like claims under Article 25, pertains to religion. This, however, would be a somewhat odd innovation sixty-three years after Narasu Appa Mali, especially in light of the fact that the Bombay High Court, in that case, applied the essential practices test specifically while adjudicating under Articles 25 and 26, and refrained from applying it in holding that personal laws were not subject to Part III.
I would suggest, therefore, that under existing constitutional jurisprudence, a two-judge bench of the Supreme Court, being bound by Krishna Singh, cannot invalidate triple talaq. Of course, that is not dispositive of the issue. The judgment in Narasu Appa Mali was controversial, and there are strong legal and constitutional arguments against its reasoning. Anirudh Krishnan, for instance, persuasively argues that Narasu was incorrectly decided (see, also, the comprehensive debate between Anirudh Krishnan and V. Niranjan, in the comments section of the same post). Perhaps, then, in 2016, it is time a Supreme Court bench of three judges reviewed Narasu and Krishna Singh, and overruled them as incorrectly decided.
In my view, there is no doubt that triple talaq is an unconstitutional practice, and should be judicially invalidated. However, the Supreme Court ought to refrain from the temptation of repeating its mistake in the Make-Up Artists Case, and riding roughshod over existing precedent in order to achieve a progressive outcome. There is a correct and constitutional way of doing this, which is to refer the case to a three-judge bench, which can then re-examine the question of whether personal laws are subject to Part III of the Constitution, and correct its earlier errors on this score.