Points of agreement and disagreement in triple talaq verdict

Source: The Hitavada      Date: 23 Aug 2017 09:15:30



FOLLOWING are the points of agreement and disagreement between the majority and minority verdicts of the Supreme Court which on Tuesday set aside the age-old practice of triple talaq among Muslims:

Justice Kurian Joseph who wrote one of the two majority verdicts agreed with the minority verdict penned by Chief Justice J S Khehar that The Muslim Personal Law (Shariat) Application Act, 1937, is not a law regulating talaq.

He disagreed with a separate majority verdict by Justice R F Nariman that the 1937 Act is a legislation regulating triple talaq and hence, can be tested on the anvil of Article 14 (right to equality).

Justice Joseph, however, agreed with Justice Nariman that a legislation, be it plenary or subordinate, can be challenged on the ground of arbitrariness, saying Indian democracy cannot conceive of a legislation which is arbitrary.

He further disagreed with CJI Khehar that triple talaq has to be considered integral to the religious denomination in question and part of their personal law.

Justice Joseph agreed with the views of CJI that freedom of religion under the Constitution is absolute.

Justice Joseph said that merely because a practice has continued for long, that by itself cannot make it valid, if it has been expressly declared to be impermissible.

He disagreed with the CJI that there cannot be any constitutional protection to triple talaq.

Justice Joseph disagreed with the view of the CJI that though triple talaq is fundamental to Islam, its practice can be stayed by the SC by exercising extra-ordinary powers under Article 142 of the Constitution.