The famous American lawyer and judge Thurgood Marshall used to tell his judicial clerks that the most important principle in law is the rule of five. In its absence, all else was irrelevant. He was referring to the number of judges required to constitute a majority of the U.S. Supreme Court, without whose backing no verdict could be rendered in a case. In the wake of the recently issued decision on triple talaq [instantaneous divorce] in Shayara Bano v. Union of India, it is apt to recall this simple but important lesson. Lost amidst the euphoria over the decision is an inconvenient fact: despite proclamations to the contrary, talaq-e-biddat or triple talaq has not been declared unconstitutional by the Supreme Court of India. This is because there is no majority among the judges on the question of its unconstitutionality.
Triple talaq enables a Muslim man to divorce his wife by uttering the word talaq three times. The practice has generated considerable controversy for allowing Muslim men to easily discard their wives, even in their absence. Recently men have been resorting to social media platforms such as Skype and Whatsapp to effect divorce via triple talaq. Consequently, the Supreme Court decided to examine the legal status of the practice, whereupon several writ petitions were filed last year seeking a declaration of unconstitutionality.
However, those celebrating the unconstitutionality of triple talaq are overlooking some basic facts about the holding.
A finding of unconstitutionality required either the application of the fundamental rights to uncodified personal laws or the inclusion of triple talaq within the ambit of codified personal law i.e. statutory law. However, neither of these options was pursued by a majority of the five judge bench. The first did not secure the support of any judges while the second won the support of only two judges.
Regarding the first option, the concept of uncodified personal laws refers to laws such as triple talaq which don’t exist in the form of legislation. They are derived from other sources such as religious texts. Applying fundamental rights to uncodified personal laws would have almost certainly sounded the death knell for triple talaq. Given that the practice is available only to men, its violation of the fundamental right to equality is glaringly obvious.
Much controversy has been generated over the question of why uncodified personal laws do not have to conform to fundamental rights. Past judgments have at times considered whether to overturn precedent such as State of Bombay v. Narasu Appa Mali which spared uncodified personal laws from the test of fundamental rights. However despite some rumblings of dissatisfaction, judicial precedent carving out such an exemption has not been set aside.
The Shayara Bano case offered the Supreme Court an opportunity to do just that. It did not oblige. As a result uncodified personal laws remain outside the scope of the fundamental rights. Consequently triple talaq could not be struck down for violating the right to equality.
Nonetheless, the second option was still available to the Shayara Bano judges to declare triple talaq unconstitutional. That was by holding that triple talaq does not in fact constitute uncodified personal law but codified personal law i.e. it formed part of the Muslim Personal Law (Shariat) Application Act of 1937 [Shariat Act]. This would remove the hurdle of having to overrule precedent about personal laws and fundamental rights because legislative enactments are unquestionably subject to the fundamental rights.
In this way too, bringing triple talaq within the ambit of fundamental rights could very easily have paved the way for a declaration of its unconstitutionality, given that it grants discriminatory powers to men to divorce their wives. Alternatively the doctrine of arbitrariness, which forms part of the fundamental right to equality, could have been deployed to strike it down.
Two of the five judges went down this path of saying that triple talaq was a part of codified personal law and consequently that it violated the doctrine of arbitrariness. It is on the basis of their verdict that toasts to the unconstitutionality of triple talaq are being raised. However, Justices Nariman and Lalit needed the support of one more judge to constitute a majority. Unfortunately, securing this crucial support proved elusive as Chief Justice Khehar, Justice Joseph and Justice Nazeer rejected the view that triple talaq forms a part of the Shariat Act.
Since no majority came together on the question of unconstitutionality, triple talaq remains invalid as per the precedent of Shamim Ara v. State of U.P. and Anr, a 2002 decision of the Supreme Court. Thus, there has been no change to the law of Muslim divorce as a result of the Shayara Bano verdict. Triple talaq was invalid before this decision and it remains so after its pronouncement.