Triple Talaq verdict: Courts can't direct for legislation when religion is pitted against constitutional rights, says SC

New Delhi: When issues like 'triple talaq' come to the forefront, the discourse often takes the form of pitting religion against constitutional rights, the Supreme Court said on Monday.

Justice Kurian Joseph, who penned a separate majority judgement, said the process of harmonising different interests was within the powers of the legislature and this power has to be exercised within the constitutional parameters without curbing religious freedom guaranteed under the Constitution.

Representational image. AFP

Representational image. AFP

"However, it is not for the courts to direct for any legislation," he said in his 26-page judgement. "When issues of such nature come to the forefront, the discourse often takes the form of pitting religion against other constitutional rights. I believe that a reconciliation between the same is possible, but the process of harmonising different interests is within the powers of the legislature," he said.

Justice Joseph also noted in his verdict that to freely profess, practice and propagate religion of one's choice is a fundamental right guaranteed under the Constitution. He, however, disagreed with the views of Chief Justice JS Khehar and Justice A Abdul Nazeer that the practice of 'triple talaq' has to be considered integral to the religious denomination and it was part of their personal law.

"Merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible. The whole purpose of the 1937 (Muslim Personal Law (Shariat) Application) Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in section 2 which include talaq," he said.

"Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible," Justice Joseph said.

He also said, "I also have serious doubts as to whether, even under Article 142, the exercise of a Fundamental Right, can be injuncted."

In a historic verdict, the apex court on Tuesday brought the curtains down on the 1,400 year old practice of 'triple talaq' among Muslims. A five-judge constitution bench, by a majority of 3:2 in which Chief Justice JS Khehar was in minority, said the practice of  'talaq-e-biddat' – triple talaq is set aside".

The two separate judgements, written for majority by Justices Kurian Joseph and RF Nariman, did not concur with the CJI and Justice Nazeer that 'triple talaq' was a part of religious practice and the government should step and come out with a law.

Updated Date: Aug 22, 2017 20:54 PM

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