On 22 August 2017, the Supreme Court of India, by a 3:2 majority, deemed the practice of instant triple-talaq or talaq-e-biddat (divorce by verbal pronouncement) unconstitutional, thus rendering the practice moot for the time being.

Even though many have rejoiced over the verdict and projected it as a watershed moment of women being emancipated from the shackles of personal law, a closer look at the judicial reasoning for the decision narrates a starkly different story.

Missing the Bull’s Eye

While the initial petitions sought a complete reformation of Muslim personal law that was unjust to women, specifically looking to abolish practices of nikah halala and polygamy along with talaq-e-biddat, the Apex Court on 11 May clarified that it wouldn’t go into the validity of these practices and would rather be confined solely to triple talaq. But, the case was never really about triple talaq.

Only 0.49% Muslim women were divorcees as per the 2011 census, a select few out of these through instant talaq. Expert Faizan Mustafa collected data from 74 Sharia Courts under the Personal Law Boards and found that triple talaq is rarely permitted (16 out of 1252 cases). Another survey conducted by the New Delhi-based organisation Centre for Research and Debates in Development Policy (CRDDP) revealed that only 0.3% of the divorcee women received a “triple talaq in one go”.

All along, the case was about nudging the Court enough to set a meaningful precedent against sex discrimination in the religious domain. Many had hoped that an ‘extrajudicial, unilateral act that (brings about) a civil death for a Muslim woman’ would be enough. The religiously diverse bench while abolishing the practice lost out on a golden opportunity and went back to doing what it does best – dodge the question of sex discrimination in equality jurisprudence.

Personal Laws Over Gender Equality?

It may not be stretched to claim that in most South Asian nations, personal laws are the biggest enemies of a woman’s agency. The Indian jurisprudence has a legacy of securing substantive equality for disadvantaged groups, including through a relatively newer wave of countering arbitrariness in State action starting with E.Y. Royappa in 1974. However, this comes with one packaged exception, i.e. reluctance to apply sex equality principles to personal laws. For many generations, the Court has run with a belief that the family domain is sacrosanct. Thus, while on one hand, it struck down practices that required female Indian Foreign Service (IFS) officers to obtain permission to marry, on the other, it upheld laws that allow mothers to be guardians of their minor children only after the death of the father and Christian women requiring more than one ground to obtain divorce from the husband (while he obviously needs one).

Even in cases where de facto reform is brought in by the judicial route, the application of sex equality principles is a rarity. In 1986, Mary Roy’s challenge to the discriminatory inheritance that gave Syrian Christian women Rs 5000 or one-fourth of the son’s share (whichever was less) was not answered. Instead, the Court ameliorated the situation by holding that after due to the Part C States Act, the former laws ceased to have effect, and Indian Succession Act 1925 would apply. In 1995, the Court searched hard to find statutory grounds for voiding second marriages of Hindu men who’d convert to Islam for polygamous relationships. In 1999, the Court didn’t hold Section 6 of the Hindu Guardianship Act 1956 unconstitutional on grounds that it made the father of the minor her first guardian. Rather, it marginally expanded the interpretation of the words ‘in his absence’ to mean that even if the father is neglecting the child, the mother will be considered the natural guardian.

All these cases (and triple talaq) have one thing in common – they all are instances where the Court could have applied the equality principle in its gendered dimension, but instead chose not to delve into the personal family sphere, where maximum violence against women persists.

Limited Precedent Value

On 11 May, the Court on the outset had clarified that it only sought to discover whether instant talaq is a part of fundamental right to religion, and if it were so, the Court wouldn’t interfere. The five judges stuck by these words. The minority bench (including the Chief Justice) believed that biddat talaq is a matter of personal law since it constitutes a matter of faith in practice for 1,400 years and therefore satisfies the constraints under Article 25.

The minority bench is mistaken on two grounds – firstly, the SC in 2004 had laid down the essential practices test and ruled that if an activity is not followed since the inception of the religious sect, it cannot be deemed essential (Acharya Jagadishwarananda Case), so the length of practice is not determinative; and secondly, the freedom of religion is subject to public morality. A practice that strips away the entire agency of a woman obviously offends morality, within the judges’ own subjective understanding of morality of course.

Justice Nariman and Justice Lalit – members of the majority bench – have somewhat turned a new page in Muslim personal law by holding the Shariat Act 1937, in so far as it seeks to recognize and enforce triple talaq, as a part of laws in force under Article 13(1) and therefore subject to fundamental rights. Thus, their reasoning is that since a statutory law regulates triple talaq, it cannot be in violation of Article 14 and as far as it is, it is constitutionally infirm. This is a new beginning for the cause of equality in personal laws. However, it does not translate into a legal precedent, since Justice Joseph (who is a part of the majority bench) didn’t concur with Justice Nariman on this account. He holds that personal law surrounding triple talaq doesn’t fall under the definition of law in Article 13 and therefore cannot be tested at the anvil of Article 14. However, he believes that triple talaq is bad in theology as per the Quran and therefore invalid, having no regard to the many rights of women intertwined in this complex legal issue.

The judgment by Justice Nariman finds the practice unequal and manifestly arbitrary. That it is, but this also means that he primarily applies Article 14 (equality before law) and not 15 (prohibition of discrimination on many grounds including sex), which is problematic to begin with. Why does a problem that is clearly gendered and blatantly discriminatory against women have to find a redress as an arbitrary practice. The Court shies away from evolving gender jurisprudence by applying Article 15 to personal law issues, which again brings us back to square one. Another battle won and more rights to women, but still those at the vanguard of constitutional interpretation fail to create a legal foundation for gender justice to be used for many more battles to come.

Gendered Reading Of The Constitution

It is clear that whatever the majority may have been, three judges still chose to view the issue from the lens of religion. In fact for all five judges, the first attempt was to answer whether the practice in question is deemed by religion as an essential practice and if found otherwise, it can be tested under equality clauses. This is a dangerous proposition that doesn’t seem dangerous anymore, since we have seen it happen far too many times with far too many cases.

An unequal and discriminatory practice is not struck down since the first determination is the essentiality of that practice. It is rather fortunate that practices like sati, child marriage, devdasis (temple women) etc. were abolished earlier by legislation and efforts by social reformers (mostly Christian missionaries and Brahmanical Hindus) because looking at the antecedents of the Court, it is well in doubt whether it would’ve effectively intervened or would’ve just evaded the real questions of ‘rights versus (what they believe is) religion’.

The Constitution presents an interesting conundrum – you can believe a practice is essential and thus not delve deeper into whether it is discriminatory, or you can believe that a practice that is discriminatory and arbitrary can never find validity even if essential.

For triple talaq, the choice has clearly been made.

Abhinav Verma is a final year student of Law at University of Delhi. He holds postgraduate diplomas in Conflict Transformation and International Law, and has interned with the United Nations Global Compact (UNGC), United Nations Information Centre (UNIC) for India and Bhutan, and most recently, NITI Aayog, the Indian government’s official policy think-tank.