SC declares triple talaq unconstitutional by 3-2 majority

NEW DELHI: While declaring triple talaq an unconstitutional practice, the Supreme Court ’s five-judge bench by a majority said personal laws of every religious denomination enjoyed the status of fundamental rights and could not be invaded by government.“Personal law has constitutional protection. This protection is extended to personal law through Article 25 of the Constitution. It needs to be kept in mind that the stature of personal law is that of a fundamental right,” Chief Justice J S Khehar and Justice S Abdul Nazeer said.The ruling, supported by a separate judgment by Justice Kurian Joseph , was celebrated by the All India Muslim Personal Law Board and Muslim outfits like All India Majlis-e-Ittehadul Muslimeen as validation of their stand that government could not interfere with personal laws.The two other judges — Justices R F Nariman and U U Lalit, who along with Justice Joseph scrapped triple talaq — did not offer any comment on this issue. CJI Khehar and Justices Nazeer and Joseph stressed that government was competent to reform personal laws on grounds like public order, health and morality — exceptions which have been provided for under Article 25(2) of the Constitution.This leeway can be used by government to try to carry out changes in personal laws. The court also asked the Centre to take steps to codify Muslim personal law, especially to eliminate triple talaq, by enacting a law.The court appealed to political parties to rise above politics and consider such a legislation. “Measures have been adopted (to codify and eliminate maladies) for other religious denominations even in India, but not for Muslims,” Justices Khehar and Nazeer said.Underlining the importance of personal laws for the protection of minority rights, CJI Khehar said, “The elevation of personal law to this stature came about when Constitution came into force. This was because Article 25 was included in Part III (fundamental rights chapter) of the Constitution. Stated differently, personal law of every religious denomination is protected from invasion and breach, except as provided by and under Article 25. It is not possible to breach the parameters of faith, as they have the protective shield of Article 25 (except as provided in the provision itself.”Justices Khehar and Nazeer said since ‘personal law’ had the stature of a fundamental right, “it is, therefore, the constitutional duty of all courts to protect, preserve and enforce all fundamental rights, and not the other way round. It is judicially unthinkable for a court to accept any prayer to declare as unconstitutional, for any reason or logic, what the Constitution declares as a fundamental right. Because in accepting the prayer, this court would be denying the rights expressly protected under Article 25.”Justice Joseph agreed with the CJI on this issue and said, “To freely profess, practice and propagate religion of one’s choice is a fundamental right guaranteed under the Indian Constitution, subject to public order, health, morality and other provisions of Part III dealing with fundamental rights.”He, however, also acknowledged that the Constitution equips the State with powers to reform personal laws. “Article 25(2) permitted the State to make laws regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; and, providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Except to the above extent, the freedom of religion under the Constitution of India is absolute and on this point, I am in full agreement with the CJI,” Justice Joseph said.The CJI and Justice Nazeer said reforming personal law was squarely within the domain of government. It said maladies in Hindu personal law — sati, devadasi system and polygamy — were all abolished by enacting separate laws and codifying Hindu personal law. They said Islamic countries the world over had taken steps to correct Shariat to eliminate triple talaq and it was time India took a similar step.