Judges often confront colliding ideologies with the law standing on one side, religion on the other and human empathy in the middle. In 2014, an 18 year old Muslim eloped with a 15 year old and married her. The girl's mother filed a case of kidnapping, rape and sexual assault. Since the girl was under 18 at the time, the boy stood accused of a heinous crime under POSCO (The Protection of Children from Sexual Offences Act 2012). Yet, Muslim girls can legally marry at the age of 15 so the lovesick child was entitled to run off. Then again, do you really have it in you to condemn out-of-control puppy love between people unable to resist the call of their raging hormones, whatever their age?
If you were running the court, which of three possible positions would you like to take? If you are a member of the new Hindu radical right, you will no doubt argue that the law is the law for everyone and no religious community ought to cherry pick the rules they choose to follow. If you are a member of the old secular vaguely left, you will likely believe that religion is a private thing and India ought not to make up laws to mess with it. Finally, if you are a sentimentalist with a Bollywood fetish, you could argue that it's plain silly to set up an arbitrarily age below which kids can't legally fall in love!
When it comes to Triple Talak (or 3T!) though, the truth is that not many Muslims venerate their God mainly because He guarantees a painless divorce. Inevitably, the only customers waxing eloquent in favour of this tradition are those who have something political to gain from it. This is not because we Indians are losing our appetite for ideological incompatibility. The same ultra-right Hindu storm troopers who rail against 3T want meat shops shut during navratras for "sentimental reasons" even while Haryana's khap panchayats want girls to stop wearing jeans and using mobile phones since it's against Indian culture. The same secular pinkos who want minorities to have their "religious freedom" also want Hindu girls to be allowed into men-only temples. From the bemused viewpoint of the distant observer, it seems everyone wants to control everyone else's behaviour for legal, religious or cultural reasons! What remains unchanged in all this is the same old cynical political calculation. Like the best detergents, the last UP elections have proven that getting rid of 3T has triple action benefits: it pits Muslim woman against Muslim men fragmenting this vote bank while simultaneously quenching the fire that burns in the resentful (and possibly polygamous!) hearts of the radical Hindu right!
In truth, the judiciary doesn't usually care too much about the politics of any legal problem. That said, judges are after all a bunch of normal everyday Indians, only somewhat smarter in certain ways. Their judgments generally try to find the mean in the state of the art, the middle passage between colliding views as best reflected in the spirit of the times. Naturally, you would expect that when it came to 3T, they would go with the dominant national mood. So what is the current spirit of the times? Inescapably, be it the Shani Shingnapur temples in Ahmednagar or the Haji Ali Dargah in Bombay, Indians are increasingly inclined to push for the equal treatment of women. That's not all there is to it. A majoritarian wave is sweeping the land also pushing the judiciary into rejecting the idea of plurality of religious practice. Clearly, killing off 3T is an idea whose time had finally come. In rendering judgment in Shayara Bano v Union of India [CWP118 of 2016], the Supreme Court has merely delivered what Parliament should have. Seen thus, would you say that the judges have done enough to achieve a fairer, more balanced modern India?
I am afraid not. Chief Justice Khehar (with Justice Nazeer) held that the practice of Triple Talak is definitely a religious practice and is not contrary to public order, morality or health. He held that religious practice has the same status as constitutionally guaranteed rights, that courts cannot interfere with them and that only the legislature can! Mercifully, all that said, he stayed the practice for six months during which time legislation could be passed, if the legislature so chose. It is difficult to agree with Chief Justice Khehar. To understand his logic is above all to understand that he applied not enough of it. In his own words, "Religion is a matter of faith, and not of logic. It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion." I do wonder how the 'religious practice' of Sati and Hindu polygamy fits into this stream of non-logical consciousness. Even more, the idea that personal law has the same status as fundamental rights is, to put it politely, unprecedented in Indian legal history! Still, in passing the buck to parliament, at least he did not slam the door shut on reform.
In contrast, Justice Kurian balanced his decision riding on this essential question: Since the Quran does not sanction Triple Talak, can what is Quran-ically wrong be legally right? He ruled that divorce practice is not integral to religion nor can religious practice override fundamental rights. In his view, what is bad in the Holy Quran cannot be good in Shariat and what is bad in theology is also bad in law. That takes us to Justice Nariman with whom Justice Lalit concurred. He ruled that Triple Talak is not 'essential religious practice'. He then held that Triple Talak is whimsical, arbitrary and therefore void. Thus it has come to be that what should have been a slam-dunk has scraped through by a whisker.
This judgment is dissatisfactory in more ways than one. Given the energy and judicial time that has gone into it, the judgement is above all an opportunity lost. It is an opportunity lost because India is struggling to contain the worst excesses of its religious lunatic fringe gone mainstream. We think a loudspeaker atop a temple or a procession on the street is 'religious practice' thus sanctifying bedlam. We 'worship' our cows creating room for contexts carrying surreal consequences. This is tosh. We need our jurisprudence to take its next substantial step to eliminate religion as an acceptable public practice. If you buy it, keep it at home, and don't mess with the rights of those who don't. In failing to do this, the judgment fails us.
Even from the narrower perspective of gender justice, there is insufficient reason to celebrate. If you are a married but insecure Muslim woman, you may have reason to be somewhat relieved but from where I sit, we have merely touched the surface of the problem. A slightly more elaborate divorce procedure doesn't provide financial security to a rejected wife or her tiny children. Muslim girls don't have the same liberties as the guys and they don't get paid if abandoned like the Hindu girls do. There is so much yet to be done but this is where we hit the wall of legislature's abdication of responsibility. This takes us back to the same frustrating question that we have we asked ourselves for two decades. Are we going to ask our judges to do just judging, or do we want them to do our legislating because the legislature won't, and then moan about judicial overreach?
(The author is Managing Partner of the Gurgaon-based corporate law firm N South. His bestselling expose' of the real world of Indian courts "Legal Confidential", released in November 2015.)