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Balaji Srinivasan is an Advocate at the Supreme Court of India. He started his career in the trial courts of Bengaluru, working with Senior Advocate Pramila Nesargi. As an Advocate on Record of the Supreme Court, he has appeared in several prolific cases including the Swami Nithyananda case and the Black Money case. He is also a regular in various tribunals such as the NCDRC, APTEL etc. and has served as the standing counsel for Nagaland.
In the landmark case striking down that constitutionality of Triple Talaq pronounced this week, he appeared on behalf of the main petitioner, Shayara Bano. In this interview with Bar & Bench, he speaks about the challenges faced in the legal battle to ban Triple Talaq, the general reception of its logical conclusion and its impact for the future.
How did this case come to you?
There is a lawyer at Uttarakhand who sends me transfer petitions to be filed for destitute women. It is through this lawyer that Shayara Bano’s transfer petition came to me. Shayara Bano needed a transfer of the divorce case filed by her husband at Allahabad to Kashipur in Uttarakhand. I filed the transfer petition. The Supreme Court issued notice and stayed the proceedings at Allahabad.
While the proceedings were stayed, the woman’s brother showed me the talaqnama declaring instantaneous Triple Talaq. That was the starting point. I was shocked as to how a woman can be summarily divorced. It was instant, arbitrary, and gave absolute power to the husband. Women like Shayara Bano have been plagued by the imminent fear of this rampant practice prevalent in the Muslim community in our country. One was always aware that this abhorrent practice was in existence, but I was truly apprised of the hapless plight of Muslim women after interacting with Shayara Bano and her brother.
I researched on the topic for about four months and collected relevant material, but I had no time to put pen to paper and start drafting the writ petition. Then, my able colleague Arunava Mukherjee joined me and he took it forward and drafted the petition. His draft and approach were impeccably spot-on.
Can you share your experiences while conducting the case?
Right from the start, my credibility and personal antecedents were publicly questioned. Character assassination was a constant threat. There was an aggressive misinformation campaign. As a lawyer, it was my professional responsibility to stoically bear all that with dignified silence. However, when the motivation of Shayara Bano was questioned in very poor taste, based on misogynist notions, ridiculous logic and blatant lies, I was constrained to respond to the smear campaign.
That is when I wrote an article titled In Bad Faith in The Indian Express to explain the true factual position. Another legal website carried a very scandalous and false article about the Senior Advocates who had appeared for the petitioners and those who had intervened in her support. It falsely implied that the lawyers were not even prepared to conduct the case. Shockingly, the website did not bother to cross-check even the basic facts before publishing the article, which was obviously defamatory in its tone and tenor! As the saying goes, lies travelled around the world while the truth was putting on its shoes.
Thus, the battle for gender justice was a fight at various levels. Thankfully, our sanity prevailed; we kept our cool and stuck to the task. I have to give credit to my colleague Arunava Mukherjee who always kept telling me “to stick single mindedly to the task and not get distracted”.
I must hasten to add that Senior Advocate Amit Singh Chadha appeared for Shayara Bano pro bono. In fact, when I asked him whether he will do this matter for us, he replied that “you will not ask me but command me to do this case.” That was a big motivation.
I was also ably supported by my office staff and my colleagues Advocate Abhishek Bharti and Advocate Dilpreet Singh, as well as Advocate Prashant Murthy who came all the way from Bangalore to participate in the proceedings. They all burned midnight oil ceaselessly.
There was a lot of confusion about the judgement when it first came out. Justice Khehar pronounced the minority opinion first and it was flashed by media as the majority opinion.
Yes, the pronouncement of the judgement had a really anxious start. The Chief Justice pronounced his minority opinion first and we almost had a cardiac arrest! Then Justice Joseph and Justice Nariman pronounced their opinions and we all waited with baited breath until it was finally announced that Justice Lalit concurred with Justice Nariman. That was the climax.
I must say, standing that was a revelation in its own right – I came to appreciate the supreme importance of fundamental rights in a very personal manner. In the beginning, I stood there with a sinking heart, like a victim who did not have the basic rights of dignity and equality. One normally detaches oneself from the case emotionally, but this was a different matter.
One of the primary contentions in your petition was regarding the constitutionality of section 2 of the 1937 Act. That has expressly been dealt with by Justices Nariman and Lalit and has been struck down.
The statement of objects and reasons of the Muslim Personal Law (Shariat) Application Act, 1937 explains that it was enacted to put an end to various oppressive and discriminatory customs. Section 2 of the 1937 Act provides that the validity of certain acts, including talaq, shall be tested on Muslim Personal Law (Shariat). Our Constitution guarantees the sacrosanct rights of equality (which includes protection against arbitrariness) and life (which includes protection of dignity).
The practice of instantaneous Triple Talaq treated women like chattel, who could be arbitrarily divorced in the blink of an eye. However, it was being viewed as a legally valid practice. To that end, the 1937 Act had to be challenged as ultra vires the constitutional mandate.
What is your take on Justice Nariman’s view that arbitrariness is a ground for striking down legislation?
Justice Nariman’s opinion has been rightly hailed as a treatise on arbitrariness by itself. It is very heartening that the most sacrosanct constitutional principles were saluted in striking down an arbitrary statutory provision. For citizens of a democracy, it has certainly placed itself in our hearts.
Arbitrariness in legislation or executive action has always been the surest ground for a constitutional challenge. The famous phrase “arbitrariness is antithetic to equality” has become an immortal part of our Constitutional law since EP Royappa’s case. Justice Nariman’s opinion beautifully explains how the thread of reasonableness runs through the entire chapter on fundamental rights of our Constitution. His analysis of Article 14 is fantastic.
It was evident during the hearings that Justice Nariman had read everybody’s submissions. He would tell us to come straight to the paragraph, which he thought was relevant, and would ask questions based on that. It was very encouraging for the lawyers.
Does the 1951 Bombay High Court judgement of Narasu Appa Mali still stand?
It does not really have a bearing on this case. The practice of Triple Talaq had been incorporated into Muslim personal law by the 1937 Act. It was therefore clearly a “law in force” within the meaning of Article 13(3)(b). It is now clear, and has always been so, that all statutes must conform to reasonableness and cannot be arbitrary. The 1937 Act, insofar as it recognises Triple Talaq, is struck down.
Justice Kurian has gone on a different tangent to conclude that Triple Talaq should be struck down. Thoughts.
He has held that Shamim Ara had rightly decided this issue and he is only extending that law. Most importantly, he has correctly held that Triple Talaq is not an essential part of Islamic faith. This is a very different from the view of the minority judgment. He concludes his opinion by explaining that the Holy Quran does not approve talaq-e-bidat and, therefore, “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.”
In other words, he says that the primary source of personal law for Muslims is the Holy Quran and practices which do not come within the confines of the Holy Quran must be illegal. If that is the position of law, I think a lot of other practices might also be illegal.
Did you face any difficulty because the matter was listed for hearing during the vacation?
This was an extraordinary situation. You are dealing with a human problem which is very relevant for social justice. There are crores of people who are affected by it. So the Court had to deal with it and lawyers are duty bound to assist. This is not the first time Justice Khehar has sat during vacations. He sat during the vacation to hear the NJAC case. He heard the Sahara matter during the vacations.
Speaking for myself, I did not have a problem and I believe that vacation should be done away with. There should be a system of rotation wherein the lawyers and judges can drop out of the system for seven weeks and their matters are not posted. However, those who want to work should be given that opportunity. So the courts should always remain open. Being a public institution, the Court should not take such long vacations.
Don’t you think that the legislature should have intervened before the matter came to court?
I think we all know the reason. But I am also astonished as to why no writ petition like this was filed earlier. That was shocking. When I was preparing the case, I was thinking again and again as to why it did not happen. I even thought that I might be missing something which is very obvious.
However, it finally happened in 2016 and has been buried in 2017 once and for all. I guess that was how it was ordained to be.
Do you think the judgement will adversely affect minority rights?
Not at all. The question does not arise. The judgement merely says that Muslim women cannot be thrown out by their husbands at the drop of a hat and divorce must be done as per the Holy Quran. This is the position in many Islamic countries. It protects Muslim women from abuse and ensures they are not treated like chattel.
After the judgement, a Muslim gentleman told me that India’s Independence Day is on August 15, but our Independence Day from the Muslim clergy is on the day this judgement was pronounced. That is the feeling that is running across the community. Therefore, this judgement is not anti-community or anti-Islamic. It is in fact a victory of the Constitution and for everyone in India.
There may be a vocal minority against it. But the silent majority is with the judgement because I have received hundreds of calls saying that this practice had to go and it is good that it is gone now.
This judgement is for all women of India, all citizens of India. It is a re-affirmation that if there is anything discriminatory based on anything gender, caste or community, it cannot survive. The sword of the Constitution will cut it out.
As a human being, and as a lawyer, I could not digest the submissions made by the Muslim Personal Law Board and others who were contesting our prayer in effect saying that “because you belong to a particular faith, Part III of the Constitution is not available to you.” It was also surprising how they were acknowledging Triple Talaq is a bad practice, but contending it must still be allowed to exist.
Personal laws of no religion can be above the fundamental rights of a person. If it is happening in any other religion, it should also be dealt with.
Do you think the Parliament will act now and enact a law based on this judgement?
Prime Minister Modi has given us his word. We must thank him for his bold decision. Speaking from the ramparts of the Red Fort, he had said that this practice must go. I am sure that his Government will take a holistic view of this matter and settle this issue once and for all, so that the next generations of Indians do not have to put up with such practice.
What is the effect on this judgement for Muslim women who have been previously divorced by instantaneous triple talaq?
When a law is declared invalid, it is deemed to be invalid from the date of its entry into force, or the date of its enactment. This rule of retrospective operation of judgements of superior courts conforms to the declaratory character of precedents i.e. the Blackstonian principle that judges do not make law but only declare the law. Unless a law is prospectively overruled, it is deemed invalid from the day of its introduction. All Muslim women are protected by this judgement regardless of the date of their talaq.