Peaceful social protests, marches, questioning of the holders of power and the search for collective identity by the historically oppressed demonstrates that transformation is unavoidable. What is required is a state institution to channelize the anger for legitimate justice. When we talk about the change in personal law, especially Muslim Personal Law (MPL), the role of the legislature and executive had been dubious for political reasons.

Serious objections were also raised by the All India Muslim Personal Law Board (AIMPLB) and many other conformist Muslim scholars on the role of judiciary to initiate these reforms. But finally, judiciary once again came forward in Shayara Bano v. Union of India to rescue the susceptibility of Muslim woman from the 1,400-year-old, archaic, discriminatory and arbitrary religious practice. Though it is long and as usual full of confusion as to what constitutes the ratio of the judgement, a few legal propositions are noticeable:

Judiciary May Initiate Reform

Justice Rohinton F Nariman writing the majority judgement rightly explained the role of the Supreme Court by referring to the decision of the Supreme Court of United States in Obergefell v. Hodges. The dynamic of our constitutional system is that individuals need not await legislative action before asserting a fundamental right.

The nation’s courts are open to injured individuals who come to them to vindicate their own direct, personal stake in our basic charter. An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the Constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts.”

This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.

Personal Laws are “Laws in Force”

It is true that definition of law under article 13 does not contain “personal law”. This has been one of the main premises for keeping judiciary out of the domain of personal laws. Constructing arguments exclusively on the basis of Article 13, the inclusion of which in the Constitution appears to be a matter of abundant caution, creates a legitimate doubt about the debate.

Article 13 is not the only source of judicial review and even if the article were absent, the result would have been the same. If any of the fundamental rights is infringed, the Court always has power to declare the enactment, to the extent it transgresses the limits, invalid.

Each Right in Part III was intended to be a self-contained code with the right of redress guaranteed by Article 32. Justice Nariman who wrote the judgment for himself and Justice U.U. Lalit to which Justice K. Joseph agreed declared that Instant Triple Talaq is violative of the fundamental right contained under Article 14 of the Constitution of India.

The bench further discoursed that the Muslim Personal Law (Shariat) Application Act, 1937, insofar as it seeks to recognise and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.

Personal Law in the Constitutional Framework

All the judges possibly agreed with the question that personal laws derive their sanctity from religion and religious texts as guaranteed under article 25 of the Constitution i.e. freedom of religion. However, minority judges could not comprehend the fact that this is the most restrictive fundamental right in the part III of the Constitution. This provision has two significant limitations which are an integral part of Article 25 itself.

The first limitation is discernible from the phrase “subject to public order, morality and health, and to the other fundamental rights of this part”. This empowers courts to review personal laws, if they contradict any of the fundamental rights, public order, health and morality. Therefore, even if the practice of ‘talaq-e-biddat’ has to be considered integral to the religious denomination in question – Sunnis belonging to the Hanafi school as observed by the Chief Justice of India – it is open to judicial scrutiny by virtue of Article 25 (1).

Personal law has a constitutional protection to the extent it is not against public order, morality and health, and to the other fundamental rights. However, minority judges were inclined to believe that talaq-e-biddat has been gender discriminatory (violation of Article 14, 15 and 16) but proposed that the remedy lies with the legislature and not the judiciary.

The second limitation is incorporated in Article 25(2) read with Entry 5 of the Concurrent List which empowers the State to make laws providing for social welfare and reform. And if the State does that, it would not be proper to challenge that the measure of social welfare and reform impinges upon the religious freedom of any section of the citizens of India.

Religion in a modern democratic State is purely a matter of the individual and his God; normally the State would not interfere with the religious beliefs of the citizen and his religious practices. But if these religious practices conflict with matters of social reform or welfare on which the State wants to legislate, such religious beliefs or practices must yield to the higher requirements of welfare and reform.

Article 246 and entry 5 of the Concurrent List further make this clear. The Union of India had appeared in this case in support of the cause of the petitioners. The posture adopted by the Union government is sufficient to assume that the Union of India supports the cause of Muslim Women. The replication of the Shah Bano episode is also not conceivable.

Hence, at this juncture, the government cannot escape to venture the profound reformative process however hard it may be, otherwise this small judicial pledge will have no significance.

(The writer is Associate Professor of Law at NLU Odisha and Deputy Registrar, Supreme Court of India. The views expressed are personal)