A verdict to remember for all time

This is truly a day to remember for Constitutional India! In a verdict that reverberates beyond the corridors of judiciary and into the portals of the executive and Parliament, an epochal decision cuts across and strings together all three branches of democracy.

Any civics’ student would tell you that a constitutional democracy comprises three branches, namely executive, legislature and judiciary and that the executive runs the show based on the laws of the land and even formulates the laws for the legislature to enact. Yet, it is the judiciary which has the last word in declaring the law. Art. 245 of the Constitution of India gives the right to Parliament alone to ‘make law’. Art.13 gives the power to the judiciary to declare the law as void too.

The Supreme Court, by a majority verdict, has ruled that the practice of divorce through triple talaq among Muslims is “void”, “illegal” and “unconstitutional”. The court held that triple talaq is against the basic tenets of Quran and asked Parliament to make a law providing for a constitutional divorce mechanism for the Muslim community. In the meanwhile, for the next 6 months the triple talaq would remain prohibited.

Forget the obvious religious overtones flowing from the decision. Instead of leaving it to the legislature to do what it deemed fit, the top court has virtually issued a fiat to legislate, in line with the majority verdict, which is unheard of in the annals of the separation of powers as understood.  The executive of the day offered to make law- in the language of the then Attorney General Mukul Rohtagi to fill ‘any vacuum -and the parliament of today may also feel obliged to follow the law. And yet, to the constitutionally  inclined, the contours of the majority verdict seem to have dared to go far, even granting the court’s inclination to overreach judicially. The late, lamented Antonin Scalia used to say, “The Indian Supreme Court was undoubtedly the most powerful institution of its kind in the world with ease to make or mar law as their fancy goes”. If any of us had the least bit of doubt on the power of that institution, the triple talaq salvo has ensured that no more can there be doubters.

Who can forget the Federalist Papers— Paper No.76 of Alexander Hamilton – one of the founding fathers of the US Constitution of 1787 vintage? And to think he said that the judiciary was the least powerful or dangerous of the three branches, for it had neither purse nor sword of the other two for the judiciary had only judgment. In one fell sweep and swoop, the apex court has delivered a mortal blow to all those who expected it to hold back and leave it to the legislative branch to deal with the issue.

The Narasu Appa  Mali judgment, which had held the field as a judgment of two giants of the Bombay High Court—  Chief Justice MC Chagla and Justice P B Gajendragadkar - that Art.13 did not take within its fold ‘personal law’ to be declared ultra vires,  has gone for a toss. Truth to tell, even the inimitable Chagla, after having delivered the verdict, had pangs of conscience and regretted that he did not “go the whole hog”. Our Supreme Court, where MC Chagla practised after his retirement from the Bench, has completed his unfinished agenda for justice.

The most striking and unbelievable aspect of this decision from the Constitution bench is not that the majority declared triple talaq to be unconstitutional. As precept and practice, it was harsh, humiliating, harmful and prejudicial to the womenfolk. While even the most rabid believer conceded the ignominy associated with the practice, they would have been hoping against hope that the Supreme Court would stay clear of religious terrain and admit and accept that it was for the executive of the day to discuss, debate within and outside the political class and make law as deemed fit by the Legislature to address the issue.

Not in their wildest dreams would they have ever thought that the Supreme Court would not only declare triple talaq to be unconstitutional (which it was) but concede that it was for parliament, after all, to make the law in this regard (which did not restrain them from pronouncing what they did) and then veritably direct parliament (whose composition has eager beavers aplenty now) to make the law in line with their verdict.

The Supreme Court has never held back when they were so inclined. Judicial overreach is second nature to them, what with the executive and legislative branches yielding space both morally and functionally. Considering 1) Collegium to appoint judges is run by them and ii) In the case of Vineet Narain / Prakash Singh (on appointment of CBI Director), Visakha (sexual harassment in public places, which has since been legislated also), are well known and classic instances of the top court transgressing into legislative terrain.

There are yet other instances where the Supreme Court has held back too, as in the case of Manoj Narula, where it refrained from adding to the ‘pending charge sheet’ as a disqualification to be a cabinet minister in the Centre or State.

The expectation was the court may rule that triple talaq was unconstitutional as it infringed fundamental human values and rights of the womenfolk and yet say that it was not for them to make laws, but only to request parliament to address the issue and make law as it deemed fit to protect the lot of the innocent /affected who  were knocking on the doors of the court. The court was expected to play coy beyond the declaration of triple talaq as unconstitutional and pass the buck to the executive and legislature to devise and make law, which was in their terrain. Such constitutional niceties now seem so much a thing of the distant past. Judiciary’s judgment today has travelled long and far from the Alexander Hamilton days.

Honestly, judgments of such genre from the judicial branch are far more lethal and powerful than the purse and sword of the executive and legislative branches, which are easily unsheathed by the power of the word. The Hamilton hypothesis seems to have taken a walk. Afflicted divorcees may breathe easy now.

(Author is a practising advocate at the Madras High Court)