The Missed Opportunity of Shayara Bano

The Supreme Court decision on Triple Talaq was the right one taken for the wrong reasons. It does not do much for either secular constitutionalism or gender justice.

The Supreme Court has been dominating headlines this week, thankfully for the right reasons. It declared privacy a fundamental right and also struck down instantaneous triple talaq. The latter decision in Shayara Bano v. Union of India was widely praised as a victory for both gender justice and secular constitutionalism. But a closer examination shows that that this simply not the case. It was always likely that the bench would curb triple talaq, but by using a narrow constitutional argument that did not differ wildly from earlier controversial interpretations of the constitution, the Supreme Court failed to promote either a secular constitution or enforce gender justice.

Secular Constitutionalism

There are two Articles that are crucial to the constitutionality of religious practices – Articles 13 and 25 – and their interpretations by the Supreme Court have been, to put it lightly, problematic. Most constitutions in the world assume that any laws that violate their fundamental rights chapter are automatically void. The Indian Constitution takes the path of abundant caution, and Article 13 expressly declares this, and also defines ‘laws’ beyond the obvious application to bills passed by Parliament or state Legislative Assemblies. The legal interpretation of the definition of ‘laws’ (decided in a Bombay High Court judgment referred to as the Narasu Appa Mali case) excludes personal religious laws, thus removing them from the obligation of following the Fundamental Rights chapter of the constitution.

The other Article, unsurprisingly, was Article 25 – more commonly known as the freedom of religion, but more accurately described as the right to profess, practice and propagate religion. Article 25 begins by limiting this freedom on the grounds of public order, morality and health, but the real question was whether a person’s right to practice a religion can be limited by other rights in the constitution such as the right to equality, freedom and equality under Articles 14, 19 and 21 respectively. The assumption in a secular state would be that no religious practice can violate any fundamental right, certainly not these three, but the Supreme Court went with a more controversial approach. After many decisions the Supreme Court now determines the constitutional protection of a religious practice on the basis of whether it is ‘essential practice’ to that religion.

Both these interpretations run counter to the concept of a secular constitution. In the Constituent Assembly, BR Ambedkar (whose prescience seems more startling as each day passes) commented on how religious conceptions in India are so vast that they cover every aspect of life. The very concept of fundamental rights (other than the freedom of religion) is intended to replace religious edicts on basic human interactions. This is why we have an Indian Penal Code and Codes of Criminal and Civil Procedure instead of the Manusmriti and Bhagavad Gita.

Chief Justice Khehar’s view of the utility of fundamental rights can best be characterised as a jurisprudence of constitutional impotence. He held not only that triple talaq was an essential religious practice, but that as religious practices were a matter of faith and not logic, they couldn’t be assailed by rational precepts like fundamental rights. An excerpt of his judgment reads more as an intellectual justification for traditionalism than the writings of a constitutional judge:

Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. 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, practicing the same faith) unacceptable, in today’s world and age.

The other judges don’t fare much better from the viewpoint of secularism because they too adopt the essential-religious-practice doctrine. This doctrine has been widely criticised because in order to determine whether a practice is essential, a judicial interpretation of scriptures is required. This is an exercise that is fundamentally flawed in two ways.

The first is that despite the moniker of personal laws, religious scriptures are as different from laws as is possible. Legal language is famed for its obsession with specificity and precision to the point of obfuscation. Religious scriptures, on the other hand, are written in vague language, and core religious beliefs cannot be rationally comprehended because the semantic content of religions is absurd and contradictory. The problem of interpreting scripture as law is made harder by the fact that no scripture is written in the language of the court – English – requiring a dependence on translations.

The second problem with the judicial interpretation of scriptures is it that has no place in a secular State and is violative of Article 25. After all, granting freedom to practice a religion is meaningless when the State gets to decide which practices form that religion. The only test should be whether the practice violates other fundamental rights.

Gender Justice

Justice Nariman’s judgment sidestepped the Article 13 controversy by finding that triple talaq had already been codified under the Muslim Personal Law (Shariat) Act, 1937, and thus had to follow all fundamental rights. If gender parity had been the reasoning for declaring instantaneous triple talaq invalid, Justice Nariman would have justified striking it down on the basis of how it discriminated against women by giving Muslim men a unilateral right to end the contract of marriage. But he does not argue about the inability of Muslim women to give triple talaq; he instead talks about how a Muslim male may validly divorce his wife without reason by uttering triple talaq, and that its instantaneous qualities remove the possibility of reconciliation and arbitration. While Justice Nariman’s arguments are both correct and legally valid, they are not made on the basis of gender equality.

An Opportunity Missed

The value of any judgment is not just in the outcome of its verdict but the rationales used to reach it. This is because the binding nature of precedent gives these rationales the force of law in subsequent cases on similar matters. Only a bench from a superior court or with superior numbers can overturn the decision, and there are very few benches superior to a 5 judge bench of the Supreme Court. As the three judgments (Nariman’s, Khehar’s and Joseph’s) do not agree on most issues, the lack of a conclusive majority opinion renders the value of Shayara Bano as precedent questionable. But given some of the arguments used, maybe this is a good thing. Either way, there is a distinct feeling of a missed opportunity to reform religious laws in India, and the scant solace of incremental reforms remains just that.

About the author

Madhav Chandavarkar

Madhav Chandavarkar is a Research Associate at Takshashila Institution. He earned a 5 year degree in law from Symbiosis Law School only to discover he didn't want to be a (practising) lawyer. His interests include free speech, constitutional law and pop culture.