By Anand Grover and Suraj Sanap
This week has seen two judgments from the Supreme Court of India, both of seminal importance, not only to Indian society and the world, but also in constitutional law in particular. They are the decisions on Triple Talaq (talaq-e-biddat) and the 'Right to Privacy'. It is important to look at them together and see the direction of winds blowing in the Supreme Court, giving us an insight into the implications for constitutional issues in future.
In the Triple Talaq matter, the issue was, as contended by the petitioners, whether the practice of triple talaq should be held to be constitutionally invalid. This was opposed by the AIMPLB which argued that one couldn't challenge the 'constitutional' validity of 'personal law', as has been held in the Bombay High Court decision of Narasu Appumali.They also contended that triple talaq has been in vogue for over 1,400 years, and therefore, was integral to Sharia.
Though the majority of the petitioners argued that triple talaq was 'unconstitutional' under Articles 14, 15 and 21, an autonomus organisation, a Muslim women's group, the Bharati Muslim Mahila Andolan (BMMA) had a different point of view on the issue, and contended that in fact triple talaq was not part of Islamic law (Sharia) at all, and a declaration to this effect must be made by the Supreme Court.
On the constitutional validity, Chief Justice Khehar and Justice Abdul Nazeer held that, as triple talaq had been in vogue for over 1,400 years and still continues to be in force, it forms a part of Sharia. Furthermore as it was religious law they elevated it to a fundamental right under Article 25 of the Constitution (Freedom of Conscienceand Free Profession, Practice & Propagation of Religion) and therefore could not be attacked on grounds of violation of fundamental rights. As opposed to this, Justice Nariman supported by Justice UU Lalit held that triple talaq had been recognised in law and statutorised underthe Muslim Shariat Application Act, 1937 and therefore ceased to retain the character of 'personal law'. It was thus open to challenge on the test of violation of fundamental rights. As triple talaq is unilateral in its invocation, it was declared to be'manifestly arbitrary' and therefore in violation of Article 14 of the Constitution. However, the key judge on whom the case thus hinged, Justice Kurien Joseph, held that though he agreed with the analysis of Article 14 by J. Nariman, he further held that it was not open to challenge triple talaq on constitutional grounds and agreed with Chief Justice Khehar's opinion that the law was not open to challenge on constitutional grounds. Thus it was 3 to 2 holding that it was not open to constitutional challenge.
At the same time, on the other issue, J Nariman said that in view of the judgments of various High Courts and the Supreme Court in Shamim Ara, where it is held that triple talaq is not part of Islamic law, the earlier judgments of Privy Council stood overruled. It is on this issue that Justice Kurien agreed with Justice Nariman and held that in view of the fact that even Islam considers the practice 'sinfiul'and the Quran doesn't recognise it, it cannot be upheld by the Supreme Court. On this issue therefore, the decision of the Supreme Court was split 3:2 holding that the triple talaq was not recognised by Islamic law.
There may have been a huge confusion if the matter was left at this: whether or not the practice is part of Islamic law. In order to make sure there is no confusion, all 5 Judges signed on to the final conclusion, recording that talaq-e-biddat is 'set aside' – thus making it clear that triple talaq is no longer valid in law. The position that emerges today is that no Muslim husband can divorce a Muslim wife by pronouncing triple talaq – if he so does the Courts will not recognise it.
This has vast implications for the social and economic security of Hanafi Muslim women who were living under the constant fear and threat of being divorced and ousted from the marital home merely by the utterance of 'talaq' 3 times. The fact that the fear of an arbitrary practice/law will no govern the life of a person is the vindication of restorative justice.
An important feature to remember in this case is also the representation of the affected community who were direct parties before the Court to seek justice, the primary role was played by Muslim women and civil society organisations representing their interests. Civil society attack on triple talaq was on both counts: Constitutional grounds as well as it's (lack of) recognition in Sharia. The Government simply supported the former challenge on constitutional grounds, which generated some anxiety in the Indian Muslim community on 'Muslim women's rights issues' playing into the hands of the Hindu Right and its unintended consequences. However, like any movement with a diversity of voices, it bears well to note that in spite of the Muslim women's organisations who laid their foundations of challenge in Sharia that the victory in Court was gained. The AIMPLB of course opposed both challenges. However, it appears now that AIMPLB has welcomed the decision, particularly as the decision is widely praised in the Urdu press.
The other significant decision of the Supreme Court is the Right to Privacy case, which is expected from all quarters to have an enduring impact on Indian society and constitutional law. This case actually saw the Government opposing the very basis and recognition of privacy as a fundamental right. It is this controversy that led to a reference to 9 judges to settle the dispute on the status of privacy as a fundamental right as per Indian constitutional law. It is rather absurd to now see Government spokespersons scrambling to save face by claiming that the Central Government had in fact initially made a qualified recognition of the Right to Privacy, ignoring that Supreme Court orders have recorded the categorical denial by the Central Government of the Right to Privacy.
This reference arose out of a batch of cases that concern the constitutional challenge to Aadhaar and it's conflict with the Right to Privacy, as one amongst several constitutional issues. One of the contention of the petitioners is that when persons are required to divulge private information to the UID authorities to register for Aadhaar, the State must correspondingly require that privacy of persons and their information must be protected. However, they argued that both without any procedure established by law or even with such law (Aadhaar Act, 2016), information is not protected and therefore intrusion in private lives of persons by the State may have unforeseen ramifications. It is in this context that the Government argued there is no fundamental right to privacy in India, either in the Constitution or as may be interpreted by the Supreme Court. The Government cited MP Sharma, Kharak Singh and Gobind to argue that between the 3 seminal cases, they either rejected or did not explicitly recognise the right to privacy. Therefore the matter landed before 9-judge bench of the Supreme Court as MP Sharma was decided by an 8-judge bench of the Supreme Court.
Six judgments were pronounced (Justice Dhananjay's opinion supported by 4 Judges and 5 separate but concurring opinions) that unanimously recognise Right to Privacy as a fundamental right in Article 21, the freedoms in Article 19 as well as across the Fundamental Rights chapter of the Constitution. The Supreme Court has held that Privacy is an inalienable and natural right, i.e., it springs from the moment of birth of life of a human being– no human-made Constitution confers it. The court has also based the foundation of the Right to Privacy in Dignity, as the Right to Human Dignity underlines all fundamental rights.
The Supreme Court has not gone explicitly in the contours of the Right to Privacy, as that will be developed on a case by case basis. However there is ample domestic as well as international jurisprudence that will guide the court on how the Right to Privacy can be recognised, developed and what its implications are in a particular case.
On the issue of whether the Government can make the Right to Privacy dispensable in context of access to welfare benefits, the Supreme Court has made some very interesting observations, borrowing from its own constitutional jurisprudence in theKeshavananda Bharati case. The Supreme Court has laid emphasis on it's past rejection of the argument, and reiterates the same again, that in order to build a welfare State, it is necessary to compromise on human rights and freedoms. The Supreme Court's own Constitutional history is enlightening on this subject, where it has noted that "Our Constitutional plan is to eradicate poverty without destruction of individual freedoms". These observations of the Supreme Court, in addition to an outright rejection of the Central Government's argument that "privacy is an elitist construct" and poor people may choose to prioritise access to welfare, render Aadhaar open to challenge on a very broad canvas of Right to Privacy.
Apart from a legal denouement of the Government, the author's own engagement with the sex worker's community is illustrative of the growing disenchantment with this project.
Sex workers initially welcomed Aadhaar for benefits on establishing identity and access to social security, but they now realise the far reaching implications for their Right to Privacy in terms of the fear of being under constant scrutiny of the law as criminalised and marginalised communities, tracking client's movements and their money when they were recently told by State AIDS Control Societies to mandatorily register for Aadhaar to continue access to HIV-related healthcare services.
The very fact that the Supreme Court has emphatically and firmly established the Right to Privacy as a non-explicit fundamental right will have far reaching implications on future constitutional matters across the board – whether on informational privacy, practices associated with a class of persons or sexuality.
Interestingly, this is already indicated by the Judges in referring to Koushal, the judgment of the Supreme Court on constitutional validity of S. 377 which de facto criminalises gay and transgender persons' sexuality. It has comparedKoushal's legacy to the darkest era in India's constitutional crisis: the Emergency case in ADM, Jabalpur, in it's impact on the lives of the lesbian, gay, bisexual, transgender and intersex (LGBTI) persons. This is a vindication of the community and their lawyers' arguments, who first observed this following the decision in 2013. The Court has indicated that J. GS Singhvi inKoushal, failed to appreciate the nature of the privacy/dignity based claims, or, its application to the rights of LGBTI community, and effectively overruled the decision on Article 15 and 21 grounds. This Court has clearly indicated the irredeemable flaws in Koushal, which are up for arguments in the curative petition as soon as a bench is constituted by the Chief Justice.
The Supreme Court refers to Suchita Srivastava to expressly make the point that this Court has recognised and developed the Right to Privacy also in context of women's rights, in this particular case in context of a woman's reproductive and sexual health rights and choices. The Court also discusses the 'feminist critique of privacy', pointedly noting, "Privacy must not be utilised as a cover to conceal and assert patriarchal mindsets". It is anybody's guess that this ruling will have an impact on other contemporary and unresolved issues of the women's rights movement like the exception to marital rape in law.
This is a clear indicator of the shape of things to come and the expectations this decision is already generating and will continue to generate in newer dimensions. The Supreme Court is not only concerned with substantive legal issues, but this week it has also demonstrated constitutional empathy to the lived realities of allIndians.
A lot will be written about the two cases for a long time to come. At the moment we must celebrate and rejoice the victories and the assuaging effect they will have on our lives, hoping that the Supreme Court will keep the faith.
Anand Grover is a Senior Advocate who argued both the cases for the Petitioners. Suraj Sanap is Legal Officer with Lawyers Collective, HIV/AIDS Unit.
The article first appeared in National Herald.