Supreme Court’s Lost Chance:

Supreme Court’s Lost Chance:

Context

• Prior to the judgment on Triple Talaq, it was widely anticipated that the Court would strike down the practice on the basis that it breached constitutional morality. It was also hoped that the Supreme Court would overturn a long-standing decision of the Bombay High Court effectively insulating personal laws from constitutional scrutiny.

Issue

• In spite of the majority of judges striking down the practice of instant triple talaq, the judgment did none of those things.
• The case held significant opportunities for the Court. It was asked to decide if the practice violated the constitutional right to equality and protections against gender discrimination

The three separate opinions

• The danger of three separate opinions amongst a panel of five judges deciding a case is that the lowest common denominator prevails.
• In this case, the lowest common denominator was that the practice of instant triple talaq was not integral to Islam, and was therefore unprotected by the constitutional right to freedom of religion.
• The Court decided the case on an interpretation of religious texts rather than constitutional provisions.

Right to religion matters the most

• The most striking implication of the Court’s judgment is that it effectively signalled that triple talaq and other religious practices would be scrutinized through the lens of religion rather than the right to equality.
• The battle for equality, continues to be waged in the language of religion rather than the language of rights.
• There is another particularly disquieting feature of judges settling upon the significance of religious practices.
• The Court opens itself up to uncomfortable questions of institutional and individual competence.
• Transforming the language of argument from religious texts to constitutional rights would alleviate it considerably, for all judges are equally on questions of fundamental rights.
• Yet, with the Court’s decision, the bench composition in cases involving personal law will become more significant than ever before.

The success of majority opinion

• The greatest victory of the majority opinions is that they avoided the situation that would have arisen had the dissenting opinion prevailed.
• In spite of holding the practice of triple talaq constitutionally valid, the dissenting opinion, recognizing the injustices associated with the practice was willing to decouple the constitutional right from the remedy.
• The opinion would have otherwise imposed a six-month injunction to enable Parliament to enact legislation on the subject.
• The injunction would continue if appropriate legislation was introduced in Parliament within that time frame.
• This outcome would have been not only constitutionally suspect, but also pragmatically unsound.
• The Supreme Court lacks the authority to direct Parliament to enact legislation.