On 18th May this year when the five-judge constitutional bench reserved its judgment on the constitutionality of the practice of Triple Talaq among Muslim men, the country, especially Muslim women, hoped that this unfair and demonish practice will be declared illegal with the sanction of the highest seat of the judiciary.
Today when the Supreme Court finally gave its judgment on the matter, it made people question why did the court take so much time on such a direct issue?
With a majority of 3:2 the court decided that Triple Talaq (Talaaq-i-biddat) is unconstitutional and not integral to the religious practices of Islam. This is good and appreciable. What is unusual is that two judges, Hon’ble Chief Justice of India J.S. Kehar and Hon’ble Justice Abdul Nazeer, did not find Triple Talaq to be unconstitutional.
Now, this is troubling. Although it is not the first time that a Constitutional Bench is divided on an issue, it happens always, but given the sensitive nature of the issue at hand, it was not wise to side with the practice that has ruined lives of several women. We are now living in the 21st century where women have equal rights, or at least there is a demand for equality.
When two of the most well-read, well-educated, well reputed people occupying two of the senior-most positions in the country hesitate from being reformative, the democracy moves towards hopelessness.
Also, when five men sit to decide whether women belonging to a particular community are suffering due to a practice or not, democracy weeps a little. Given the fact that Judiciary, including the Supreme Court, is no exception to gender disparity, there was little expectation of a woman judge being a part of the Constitutional Bench.
Further, in the judgment, the court gave 6 months time to the Central Government to prepare a legislation on the same. In the meanwhile, Triple Talaq is illegal to practice, and it would be non-enforceable.
The question is:
Why did the court restrain from performing judicial activism?
The court shifted the burden on Legislature for making a law on the practice. It did not itself indulge in judicial legislation, a practice where the court itself lays down law or give a different interpretation on a given issue. Although it is considered as an overreach of the power of the judiciary, however, it has been followed often in the past three decades.
Another viewpoint on the same could be that it is the power of the Legislature, and not Judiciary, to put on paper the prescribed punishment to the accused and relief to the deceased. Hence, the court directed the Parliament to make law on this subject matter. Hopefully, soon, practicing Triple Talaq would be an offense punishable by law.
Differences apart, this judgment did create an atmosphere of reform and an environment where religious practices can be questioned and even discontinued if it doesn’t conform to the ideas of equality or social justice.
Beauty is that the bench comprised of five judges, all of whom belonged to different faiths. The multi-religion bench represented the diversity of this country.
For more clarity, read the entire judgment (395 pages) here:
Image Credits: Google Images