While the Supreme Court’s judgement setting aside talaq-e-biddat, the practice by which Muslim men could divorce their wives instantly by pronouncing the word “talaq” three times, will be much talked about for what it said, it is also noteworthy for what it did not say. The key thread running through most arguments was the place of religious and customary personal laws under the Constitution. Specifically whether such laws were protected under the Constitution or whether they could be struck down by a court for being unconstitutional. At least two of the three judgements rendered in this case had something to say about these questions, but what they did not say is also intriguing.

On first blush, the answers seem obvious: of course, religious personal and customary laws are not protected under the Constitution and they must be subject to the rigours of Part III of the Constitution that deals with fundamental rights. While there is some basis to argue both these positions they are not as clear as made out.

Chief Justice of India JS Khehar’s judgement (also for Justice Abdul Nazeer) addresses both these questions though it is the minority judgement. On the issue of constitutional protection for personal laws he holds, entirely incorrectly, that Article 25 of the Constitution of India protects religious personal laws as well, and shockingly, that even a practice like talaq-e-biddat (of dubious religious sanction) is also protected. There is little legal basis for this finding, which contradicts prior judgements of the Supreme Court.

What the judgements said

On the issue of making religious personal laws subject to fundamental rights in the Constitution, the minority opinion sticks to the law laid down first by the Bombay High Court in Narasu Appa Mali v State of Bombay, and subsequently approved by the Supreme Court in multiple cases – that religious personal laws cannot be reviewed by courts for violation of fundamental rights. However, this clear position is confused later in the judgement by making a reference to Article 25 as well, and an utterly incoherent proposition is advanced to turn down the challenge to talaq-e-biddat.

Justice Rohinton Nariman’s judgement (also on behalf of Justice UU Lalit) is effectively the majority judgement since Justice Kurien Joseph agrees with him to the extent of holding that the practice of talaq-e-biddat should not be enforced by courts. His judgement points out the incorrectness of Khehar’s approach and rubbishes the claim that personal laws are protected under Article 25 of the Constitution. Nariman’s judgement, however, completely avoids the question of whether personal laws can be struck down for violating a fundamental right.

Joseph’s judgement proceeds on an entirely different footing, entirely avoiding both questions. He finds that talaq-e-biddat is not part of the sharia law at all and cannot be enforced in court for this reason. He finds different reasons therefore to agree with Nariman’s conclusion – that courts should not enforce the talaq-e-biddat.

The majority is therefore silent on the issue of whether customary or religious personal laws can be held by a court to be unconstitutional. The uncharitable view would be that they avoided answering a hard question. The more charitable view is that this is a question with implications far beyond just triple talaq and, without a full-fledged understanding of all nuances, is dangerous to proceed headlong. This is the view I subscribe to.

Personal laws and the Constitution

While it is no doubt true that religious personal laws are outside the scope of Article 25, there are other personal laws that do enjoy constitutional protection. These are specifically those of tribal communities in Nagaland and Mizoram under Article 371-A and Article 371-G. Under these provisions, even Parliamentary law cannot override these customs relating to personal laws unless the legislatures of the respective states approve.

There is also a textual problem with claiming that personal laws can be tested against fundamental rights. Striking down a law made by a legislature or a government action is a declaration of the court that the laws are incompatible with the Constitution in some way. The source of this power is Article 13 of the Constitution, which has been interpreted in Narasu Appa Mali to hold that “customs and usages” would not be “laws in force” that existed prior to the Constitution coming into force. This interpretation has its critics but there is one strong reason to accept this interpretation.

Allowing personal laws to be struck down by courts risks the prospect of “social reform by judiciary” – an endeavour that is hazardous at best. One instance of the messy problems that such an approach might create can be found in the Supreme Court’s judgement in Madhu Kishwar v State of Bihar. Here, the Supreme Court was called upon to “strike down” customs related to succession among Scheduled Tribes in Bihar as they favoured male heirs. If the court had accepted this, it would mean that there would be no norms governing such tribal communities on matters of succession, giving rise to the possibility of either the Supreme Court fashioning a new custom (an absurd notion) or the imposition of the Hindu Succession Act, 1956 (an entirely alien legal regime). The court once again found a third option – to read down the legislation which implemented this practice and ensure that the hardship caused to women as a result was mitigated.

This is not a one-off. In the just concluded triple talaq case (Shayara Bano v Union of India and others), the Supreme Court was invited by the Attorney General of India to declare a whole range of Islamic personal law unconstitutional with a vague promise that the government might come up with a new law afterwards. Had the court accepted this, it would have caused immense chaos and confusion, setting any genuine reform effort back many years.

The court’s approach to accept the substance of the problem, but fashion a remedy that does not involve controversial and potentially damaging consequences, is therefore entirely welcome. Personal laws are best left to the community and to the legislature to be reformed, following the appropriate democratic procedures. While the judicial process has merits in many instances, large scale social reform is not one of them.