How the numbers compute: 

How the numbers compute: 

Context

• In one common judgment, two of the five judges held that triple talaq was an element of statutory law, the Muslim Personal Law (Shariat) Application Act, 1937 and, being arbitrary, was unconstitutional.

Ration of 3:2

• “By a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside”. Score-sheet summaries of this kind have been deprecated ever since the Supreme Court’s decision in Kesavananda Bharati(1973).
• From a careful reading of the three separate judgments that make up the court’s decision in the instant case, it is not at all entirely clear that triple talaq was in fact “set aside” by a majority of 3:2.
• They declined to express an opinion on the more general question of whether religious personal laws were immune from constitutional scrutiny under Article 25, which guarantees all citizens the right to freely practise their religion.
• In a second common judgment, Chief Justice J.S. Khehar and Justice S. Abdul Nazeer held that the practice of triple talaq, being a component of personal law, was protected by Article 25 of the Constitution and could not be interfered with by the court. In the same breath they directed that this practice be abrogated by Parliament through legislation.
• Justice Joseph holds triple talaq to be inoperative not because it violates fundamental rights, but because it is, on his reading, “Anti-Quran” and hence violative of the Shariat.

A cosmetic unity

• It is clear that three judges of the Shayara Bano v. Union of India case did not come to the determination that triple talaq is gender discriminatory and hence unconstitutional.
• It is possible to cosmetically unite the three ‘majority’ judges at the level of an abstract intention, evinced in their judgments, that triple talaq is an undesirable practice and ought not to remain law.
• Such an indulgent interpretation however would reduce the complex task of judgment to the arbitrary, whimsical exercise of signing a summary hardly worth the serious judicial time that this case has consumed.