In two pathbreaking judgments last month, Supreme Court has struck down the practice of Triple talaq by a 3:2 division in Shayara Bano v UOI case. A few days later, a unanimous bench of 9 Supreme judges held that there is a fundamental right to privacy in the Puttaswamy v UOI case. The Supreme Court Observer spoke to Senior Advocate Anand Grover, who was the arguing counsel and played a significant role in invalidating triple talaq. In part one of this two-part interview, he speaks about the judgments, their socio-legal impact and the legal strategies followed in getting favourable judgments in the Triple Talaq case.
1) How far reaching is the social impact of the Triple Talaq judgment considering Muslim Women are one of the most marginalised communities in the country.
Mr. Grover – Though in terms of numbers triple talaq may not amount to many, the actual impact in terms of fear that most Muslim women have is very big. Once a Muslim woman discover that they can be divorced anytime by their husband, she is on tenterhooks. This judgment removes that fear significantly.
2) How pathbreaking is the legal impact of the judgment?
Mr. Grover – The legal impact is more significant. Triple Talaq is a practice which is part of personal law. And until the day of the judgment, the understanding was that this is not a matter of judicial determination by a challenge on the ground that it is violative of fundamental rights. That is what J. Khehar has held along with J. Nazeer in the judgment. But J. Nariman took an opposite view saying that personal law which is inclusive of triple talaq has become a statutory law by virtue of the 1937 Shariat Application Act and therefore it has not retained the character purely of personal law, which is the subject matter of the decision in the Narsau Appa Mali case. So, it could be challenged under Art 14, 19, 21. That’s the route Justice Nariman took. And then decided that it violates Art 14. So, it is important to remember that there is a new change in that.
I am aware that we were skating on thin ice even when we won the case. Justice Kurian’s opinion could have gone either way in that sense. So, we were very lucky that the judgment was rendered the way it was.
3) Specifically, what is the status of Narasu Appa Mali case – are un-codified personal laws still not subject to fundamental rights?
Mr. Grover – It’s not specifically overruled because Narasu Appa Mali was on non-codified personal laws and that issue was not before this court. The Muslim Personal Law (Shariat) Application Act, by its virtue, became a statutory law, so the bench did not go into the question.
4) Has this judgment significantly strengthened the gender justice jurisprudence of the court?
Mr. Grover – Gender justice is very important in today’s context. The Supreme Court having an activist attitude is good provided it’s on proper constitutional grounds. This judgment was characteristic of gender justice though it was not exactly expounded in that manner. This judgment has held that triple talaq is arbitrary in its content, form and character and the message is that a husband can’t unilaterally untie the marital chord. In that sense, it has gender justice element though it is not firmly grounded on that.
5) This case saw an unlikely coalition of parties arguing against the practice of triple talaq from BMMA, a group of Islamic feminists, to petitioners, to the Government. How do you react to sections in government misinterpreting it as a support for Uniform Civil Code?
Mr. Grover – We knew that we had common cause with the government. We were very clear about our vision and long term goal of invalidating triple talaq, so we moved forward irrespective of the government’s stand on it. If we had not stepped in, then we would have given all the initiative to the government. Their arguments were not really innovative. Actually, the lead petitioner’s lawyers including Amit Singh Chadha, Indira Jaisingh and government were just the second fiddle in the whole case. As part of our strategy, I argued that the triple talaq practice is un-Islamic. I did not argue on the constitutionality. Whereas Indira Jaisingh argued against the constitutionality of the practice. It was a strategic decision to argue from multiple stands so that we give judiciary different options for striking down triple talaq. Had we only gone with the government, we would have lost the case because the verdict is 3:2. The deciding judge, Justice Joseph struck down triple talaq because it is not part of Islamic Law. It is not constitutionally struck down. It is 2 against 2 on constitutional grounds but 3 against 2 on the ground that it is not part of Islamic law – that is the judgment. The argument taken by me that the practice is not part of Islamic law has been accepted by Justices Kurien Joseph, Nariman and Lalit.
6) So, the petitioners were strategic in their arguments as they put forward different options before the court for striking down triple talaq?
Mr. Grover – Yes, as petitioners, we raised both arguments. Representing BMMA, I argued that triple talaq is not part of Shariah as rightly held in Supreme Court decision in Shamin Ara, therefore it is not part of Islamic law. But, the petitioner for Shayara Bano, Mr. Amit Chaddha also took the line that if triple talaq is found to be part of Shariah, then it is codified under Shariat Application Act, 1937 and can be struck down as violating the fundamental right to equality. So, we were following two strands of arguments. If we had raised just one strand of argument, either only constitutional or non-Islamic ground, then we would have failed. We raised both and that is the value of petitioners’ submissions and we succeeded in that strategy. The government though only argued on constitutional grounds and it tail ended both Mr. Chaddha and Ms. Jaisingh.