Triple Talaq Judgment and the Continuing Confusion about the Constitutional Status of Personal Law

The judgment in Shayara Bano does not change the legal position of Instant Triple Talaq that existed before, but creates confusion on the constitutional status of personal law, and misses a great opportunity to elaborate on the constitutional vision of justice for women from minority religious groups.

The Supreme Court’s 22 August judgment in Shayara Bano v Union of India (2017), has been described by many commentators as the Court declaring the practice of instantant triple talaq (or divorce, hereinafter ITT) to be “unconstitutional". Such a description of the judgment is incorrect. The judgment is made up of three separate opinions: one by Chief Justice Jagdish S Khehar and Justice S Abdul Nazeer; one by Justice Kurian Thomas; and one by Justices Rohinton F Nariman and Uday U Lalit. The three opinions concur on some issues and differ on others. This makes the task of figuring out the judgment’s exact holding a difficult and confusing exercise. Carefully tracing the convergences and divergences leads one to conclude that the majority faulted ITT and “set it aside” not because it was found to be unconstitutional, but rather on the grounds that it was un-Islamic. What is more, even with a five-judge bench decision, the constitutional status of personal law remains as uncertain as before, which makes the prospects of any future attempt to change discriminatory personal law provisions by challenging their constitutional validity, difficult.

 

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