📰 No, no, no: SC on instant triple talaq
3:2 split verdict termed practice ‘manifestly arbitrary’; CJI Khehar held it was part of right to religion
•A historic 3:2 majority judgment, delivered on Tuesday by a multi-faith Constitution Bench, set aside instant talaq as a “manifestly arbitrary” practice not protected by Article 25 (freedom of religion) of the Constitution.
•On the five-judge Bench, Justices Kurian Joseph and Rohinton Fali Nariman gave separate judgments against the validity of instant talaq. Justice U.U. Lalit supported Justice Nariman’s view that instant talaq given by a Muslim man “capriciously and whimsically,” without an attempt at reconciliation, was “manifestly arbitrary and violative of Article 14 (right to equality).”
•The triumvirate of Justices Kurian, Nariman and Lalit overwhelmed the minority verdict pronounced by Chief Justice of India J.S. Khehar and endorsed by Justice S. Abdul Nazeer, the juniormost judge on the Bench.
1,400-year-old practice
•Chief Justice J.S. Khehar held that talaq-e-biddat , as a personal law practice, was an integral part of Article 25 (freedom of religion). Ninety per cent of Muslims in India follow the practice. It was constitutionally protected as a fundamental right, he said.
•The Chief Justice reasoned that talaq-e-biddat was in vogue for over 1,400 years, and this made instant talaq a “matter of religious faith,” which cannot be tested on the touchstone of Article 14. He held that personal laws like instant talaq were an 'exception' to the Constitution's avowed aim to protect gender equality.
•But Justice Nariman countered that Section 2 of the Muslim Personal Law (Shariat) Application Act of 1937 has already recognised triple talaq as a statutory right and not a fundamental right.Instant talaq was no longer a personal law to remain free from the rigours of the fundamental rights as it comes under the ambit of Article 13 of the Constitution, he said. Article 13 mandates that any law, framed before or after the Constitution, should not be violative of the fundamental rights.
•Objecting to the Chief Justice's line of reasoning, Justice Kurian, in his separate verdict, held that “merely because a practice ( talaq-e-biddat ) has continued for long (over 1,400 years), that by itself cannot make it valid”.
No Koranic injunction
•The Chief Justice had reasoned that instant talaq cannot be invalidated just because the Koran does not expressly provide for or approve of it. Talaq-e-biddat, though bad in theology, was considered good in law, he held. To this, Justice Kurian countered that “Islam cannot be anti-Koran... An attempt for reconciliation and if it succeeds, then revocation are the Koranic essential steps before talaq attains finality. In triple talaq, this door is closed. Triple talaq is against the basic tenets of the Holy Koran and consequently, it violates Shariat.”
•Justice Kurian also referred to Section 2 of the Shariat Act, observing that the statute had put an end to the “unholy, oppressive and discriminatory customs and usages in the Muslim community. After Shariat Act, no practice against the tenet of Islam is permissible.”
📰 United against triple talaq, divided on legal points
While Chief Justice wanted to invoke Article 142 and seek legislation to end the practice, the majority verdict set it aside as ‘manifestly arbitrary’
•Though he declared instant talaq a fundamental right, Chief Justice of India J.S. Khehar on Tuesday employed the Supreme Court’s rare and extraordinary jurisdiction under Article 142 to injunct Muslim husbands from divorcing their wives for the next six months through the same instant talaq.
•The issue of Chief Justice Khehar employing Article 142 was raised by another judge on the Bench. “I have serious doubts as to whether, even under Article 142, the exercise of a fundamental right can be injuncted,” Justice Kurian observed.
•Chief Justice Khehar issued the direction under Article 142 after observing that even theocratic Islamic States had corrected their Shariat to banish instant talaq.
In other countries
•“When the British rulers in India provided succour to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind. Measures have been adopted for other religious denominations even in India, but not for Muslims. We would, therefore, implore the legislature, to bestow its thoughtful consideration, to this issue of paramount importance,” Chief Justice Khehar observed.
•Moreover, the Chief Justice, who wrote the minority judgment for himself and Justice S. Abdul Nazeer, directed the government to frame a law to address the issue of Muslim women under the yoke of triple talaq, especially instant talaq. The minority verdict said social evils such as sati, infanticide and devadasi system were cast out by way of legislation and not by judicial orders.
•However, the direction under Article 142 in the minority verdict failed to come alive as the majority of the judges on the Bench set aside instant talaq with immediate effect.
Gender equality
•India is committed to gender equality and eradication of discrimination on the basis of sex, the minority verdict said. “We have not the least doubt, that the Indian state is committed to gender equality. This is the clear mandate of Article 14 (equality before law) of the Constitution. India is also committed to eradicate discrimination on the ground of sex. Articles 15 and 16 of the Constitution, prohibit any kind of discrimination on the basis of sex.”
•“There is, therefore, no reason or necessity while examining the issue of ‘talaq-e-biddat’, to fall back upon international conventions.”
📰 Trump offers India a role in Afghanistan
Commits troops for open-ended war
•The new U.S. strategy for South Asia, unveiled by President Donald Trump on Monday night after months of deliberations, has many old elements, but in a departure from the past, it commits troops in Afghanistan for an open-ended period of time.
•The policy also sets the stage for a new wave of U.S. offensive against Islamist forces in Afghanistan and Pakistan. The Pentagon and NATO allies are redrawing their operational plans in America’s longest war that began in 2001, and an increase in troop levels is expected soon.
•Describing India as “a key security and economic partner of the United States,” the President said America would further “develop its strategic partnership with India — the world’s largest democracy.”
•He also urged India to play a larger role in providing economic and development assistance to the war-torn Afghanistan.
•In another component of his South Asia policy that pleases India, he said America would no longer tolerate Pakistan’s policy of harbouring terrorists. “Pakistan often gives safe haven to agents of chaos, violence and terror… that will have to change, and that will change immediately,” the President said.
📰 India welcomes Trump’s new Afghanistan policy
He calls for end to Pakistani involvement in terror
•Hitting out at cross-border terrorism from Pakistan, India on Tuesday welcomed U.S. President Donald Trump’s new policy on Afghanistan and said his move would help target “safe havens” of terrorism in South Asia.
•Senior diplomats said the American leader’s call for an end to Pakistan’s involvement in terrorism in Afghanistan and his support for Afghan-led peace process had addressed a core Indian concern.
•“We welcome President Trump’s determination to enhance efforts to overcome the challenges facing Afghanistan and confronting issues of safe havens and other forms of cross-border support enjoyed by terrorists,” said the Ministry of External Affairs (MEA) in an official statement. Speaking to The Hindu , senior diplomats said Mr. Trump had supported long-held Indian foreign policy principles of non-intervention and non-interference and ended uncertainties regarding the U.S. involvement in Afghanistan.
•Mr. Trump urged India to do more to help Afghanistan with its developmental needs and urged Pakistan to stop terror attacks that originate from its territory.
📰 No signs of Chinese build-up
Media report says that PLA live drills are meant to ‘strike awe in India’
•China on Tuesday reiterated its demand that Indian troops pull out from the Doklam plateau in Bhutan by pointing to Beijing’s concerns regarding the revamp of India’s border infrastructure.
•Chinese foreign ministry spokesperson Hua Chunying said that there would be “utter chaos” if Chinese troops entered Indian territory in order to counter New Delhi’s moves to improve its military infrastructure along the China-Indian frontier. “The Indian side illegally crossed the boundary on the excuse of ... Chinese road building. The reason is ridiculous, vicious and facts are clear,” Chinese Foreign Ministry spokesperson Hua Chunying said. “You may think about it. If we tolerate India’s ridiculous logic, then anyone who dislikes the activity at his neighbour’s home can break into its neighbour’s house.”
Utter chaos
•“Does that mean when China thinks that large-scale construction of infrastructure at the border area of India is posing a threat, it can enter Indian territory? Wouldn’t that be utter chaos?” Ms. Hua added.
•Her remarks follow the conduct of live drills by the People’s Liberation Army (PLA) at an unknown location, seemingly to reinforce the perception that a military option in Doklam was under active consideration. The Global Timesdaily quoted the Lianhe Zaobao newspaper as saying that the exercise and that they were meant to “strike awe in India”. However, analysts highlighted that China routinely conducts military exercises in late summer.
📰 ‘Uranium sale talks at advanced stage’
Australian official rejects reports of delay, and says move won’t slow down coal exports
•Discussions are at a ‘well-advanced’ stage for Australia’s uranium sale to India, to fuel nuclear power plants in the energy-starved developing nation, according to an Australian government body’s top official.
•Dismissing allegations that uranium supply was facing ‘delays’ due to the Australian coal mining sector ‘lobbying’ to protect its interests, the official, however, said coal exports will not slow down any time soon from Australia for use in India’s thermal power stations.
•Leonie Muldoon, Minister, Commercial and Senior Trade and Investment Commissioner, South Asia, Australian Trade and Investment Commission (or ‘Austrade’) told The Hindu that the process of uranium sale was progressing as anticipated by the two sides and without delays. She said: “In mid-July, we sent a sample [of uranium] for testing purposes, as was anticipated [at the bilateral discussions on the issue during the India visit of Australian Prime Minister Malcolm Turnbull in April].”
•She added, “There are ongoing commercial discussions between Australian uranium exporters and the Indian Department of Atomic Energy for possible contracts in civil nuclear projects. These discussions are well-advanced. The amount [of uranium] that ultimately will be exported will depend on the commercial negotiations.”
•Rejecting reports regarding the alleged efforts by Australian coal mining sector to ‘delay’ uranium supply to India, Ms. Muldoon said, “It’s [the allegations] more of a domestic issue in Australia... it’s not appropriate for me to comment.”
‘Coal, largest in exports’
•“We are supportive of assisting India in meeting its energy needs… There is no [emphasis on] one particular resource or energy solution. We engage with India across a broad range of energy opportunities… Australia has much to offer with regard to coal, uranium and potentially clean energy solutions… [However] historically, our largest exports to India has been coal, and we see that continuing for some time,” said the senior official.
•She said Mr. Turnbull and Prime Minister Narendra Modi had a one-on-one meeting in April as they were enthusiastic about energy and energy solutions. On the coincidence of the Australia-India CEO Forum being co-chaired by Gautam Adani, chairman, Adani Group, and Sam Walsh, CEO, Rio Tinto Group, both with interests in coal mining, as well as the Adani Group’s planned multi-billion dollar Carmichael coalmine in Australia’s Queensland, the official said, “We welcome Adani’s interest in Australia and Adani’s investment in the Australian coal sector.”
•On the reported environmental concerns over such mining projects, Ms. Muldoon said, “In Australia, we have very tough environmental regulations. Therefore, Australian companies have developed a range of technology solutions to deal with these aspects and to ensure that the environment remains protected.
•“We believe it’s something that they could share with India.” Her comments assume significance as they come ahead of the ‘Australia Business Week in India’ (ABWI) to be held between August 28-September 1 to “promote Australian capability and expand Australia’s trade, investment and education relationships.” In the ABWI, the mining sector will be a key focus area. Australia produces 60% of the world’s mining computer software that helps in improving the sector’s productivity, and in ensuring workers’ safety.
📰 Undoing injustice
The Supreme Court invokes constitutional norms and Islamic canon to bar instant talaq
•By declaring the discriminatory practice of instant triple talaq as unconstitutional, the Supreme Court has sent out a clear message that personal law can no longer be privileged over fundamental rights. Three of the five judges on the Constitution Bench have not accepted the argument that instant talaq, or talaq-e-biddat , is essential to Islam and, therefore, deserves constitutional protection under Article 25. The biggest virtue of the two opinions constituting the majority judgment is that they do not have to undermine any religious tenet to make their point. On the contrary, as Justice Kurian Joseph says, the forbidden nature of triple talaq can be gleaned from the Koran itself. Justice Rohinton Nariman, writing the main judgment, locates the practice in the fourth degree of obedience required by Islamic tenets, namely, makruh , or that which is reprobated as unworthy. The main ground on which the practice has been struck down is a simple formulation: that “this form of talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it.” In fact, the final summation is so simple that the court did not even have to elaborate on how triple talaq violates gender equality. On the contrary, Justice Nariman says that having held the practice to be arbitrary, there is really no need to go into the element of discrimination. The court deserves commendation for undoing the gender injustice implicit in the practice so effortlessly, within constitutional parameters as well as the Islamic canon.
•The present case was initiated suo motu by the court, but opinion against triple talaq could not have gathered critical mass and the case against it significantly bolstered if it weren’t for a few women standing up to the community’s conservative elements and challenging it. Any other outcome would have been a great injustice to them. Even the judges in the minority have had to concede that their reasoning is based mainly on the fact that this form of talaq is a matter of personal law, and therefore entitled to constitutional protection. “It is not open to a court to accept an egalitarian approach over a practice which constitutes an integral part of religion,” writes Chief Justice J.S. Khehar in his minority opinion. Interestingly, even his view segues into a somewhat egalitarian position, restraining Muslim men from pronouncing triple talaq until Parliament enacts a law to regulate it. The All India Muslim Personal Law Board, and all those who supported its regressive opinion that even an unworthy practice should not be dislodged by judicial verdict, should now accept the verdict in the interests of a modern social order. And there is no reason to contend that their faith has been unduly secularised. For, as Justice Joseph concludes, “what is bad in theology is bad in law as well.”
