New Delhi: As the five judges on the Constitution Bench assembled on Tuesday morning at 10.30 in the first court, all eyes were on the Chief Justice of India, who being ‘the first among the equals’, was requested by his companion judges to start reading out the verdict.
Lawyers on both sides stood up in attention to be able to hear every word of what was to come next. CJI J S Khehar started reading out the verdict and concluded in the next 8 minutes that triple talaq was a matter of “personal law”, and thus, it had the constitutional protection.
But the CJI did not clarify whether he was reading out a unanimous view of all five on the Bench; or a majority view or that he was speaking in minority. He ended reading out the verdict and senior lawyer Kapil Sibal, who had argued for the All India Muslim Personal Law Board defending this practice, looked pleased. And why not, since the CJI is usually the one holding out the majority view.
Sitting to the CJI’s right was Justice Kurian Joseph – the second senior-most judge on the Bench. “Since we are ruling on triple talaq, we also have a triple judgment,” quipped Justice Joseph as he opened his judgment.
The next few sentences that he read out from his verdict, however, could not clear the air. Justice Joseph started by saying he has endorsed a 2002-judgment, which had said triple talaq lacks legal sanctity. But, next, the judge said he agreed with the CJI’s view that the freedom of religion under the Constitution of India is absolute. Justice Kurian again supported the CJI’s view that the 1937 Shariat Act does not regulate talaq for Muslims. By this time, there was already an impression in the courtroom that the CJI perhaps enjoyed the majority.
But Justice Joseph finished his judgment by saying he disagrees with the CJI’s view that triple talaq is integral to the religion. And his last sentence was: “What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.”
With Justice Joseph eventually deciding against the CJI’s view in the 18th minute of the proceeding, eyeballs quickly shifted to Justice Rohinton F Nariman. Sitting left to the CJI, Justice Nariman opened his written judgment, but he never looked at it. He seemed to have remembered everything that he had penned down.
Justice Nariman began by making one thing clear – he disagrees with the CJI. He went ahead to hand out reasons for his verdict. Justice Nariman called the practice of triple talaq “retrograde” and that this practice cannot be a facet of fundamental right to practice religion.
The judge further made it clear that the Supreme Court is not expected to hold its hands when aggrieved women come to it complaining about violation of their fundamental rights. “This Court must decide whether such a practice is valid or not,” said Justice Nariman. Interestingly, his written judgment does not specifically talk about duty of a court in such circumstances and it appears that Justice Nariman was expressing his mind freely on the issue.
Justice Nariman then jumped to the conclusions of his verdict and said triple talaq is manifestly arbitrary and violative of the fundamental right to equality. The numbers, however, still remained unclear.
In the 25th minute, Justice Nariman said what everyone had been waiting for. He said what he read just now was the view taken by him and Justice Uday U Lalit, whereas the CJI’s view was supported by Justice S A Nazeer. Since Justice Kurian had already read out his verdict, the numbers tilted in favour of the three who denounced and struck down triple talaq – although on different reasons.