 Hello everyone, my name is Tripti Tandon and we have senior advocate Anand Grover talking to us about the Shaira Bhanu or the Triple Dalak case. Anand, how did you get associated with this case? Well, the Bharatiya Mahila Muslim Andholan, they were represented by some lawyers, Shadhan and Varisha Farashad and they approached me to appear in the matter to put an alternative point of view which was not being put forward by the petitioners. The petitioners had actually only put forward the constitutional arguments and they wanted an alternative point of view which was within the framework of Islamic law and that's what they wanted me to put forward and that's how I got involved. What were the key issues raised during the arguments before the court? Triple Dalak is pronouncing Dalak three times continuously or over a period of time and pronouncement of Triple Dalak at one setting actually affects a divorce and then there are other two forms of Dalak, Talaqe Hassan and Talaqe Ahsan and Triple Dalak is Talaqe Biddat. The other two forms of Talaq were not an issue in the court. Petitioners had also raised the issue of polygamy and Nika Halala. Nika Halala is after there is a divorce in order to contract the marriage with the same husband. The woman is made to undergo a marriage with somebody else and also consummating that second marriage and only after the divorce in that second marriage can the first marriage be re-solumnized as the third marriage that's Nika Halala. So really those are the issues in terms of the what was at stake and the court restricted the issues only to Triple Dalak or Talaqe Biddat. Now in approaching this the petitioners had basically one main argument and the argument was that Triple Dalak is unconstitutional under articles 14 which is equality, article 15 which is equality on the non-discrimination on the ground of sex etcetera and article 21 which is right to live life with dignity. That was one main argument but they had to overcome one issue which was that there was an earlier judgment of the Bombay High Court, the famous case Narasimha Appu which had been upheld by the Supreme Court in a number of decisions and that said that you cannot challenge what is termed as personal law on the ground of fundamental rights being violated. Now in this context the petitioners who approached me wanted an argument that actually you don't have to look at the constitutional issue. You can also argue that Talaqe Biddat or Triple Dalak is in fact not Islamic, it is not recognized by Islamic law. In the meantime in 1937 the Muslim Sharia application act had been passed and there the statute says very clearly that the rule of decision will be the Sharia. So the first issue was whether Sharia in braces and contemplates Talaqe Biddat. So these were the contours. Now against this the Muslim personal law board which was the main contesting respondent said that it is part of Islamic law and it is fundamental to the religion. So it is protected under article 25 which protects religion and therefore no attack can be launched on the basis of fundamental rights by virtue of article 25. Now in this context the government had an interesting position. The government like in the 377 case supported the petitioners but their main support was only on the constitutional grounds. So these were the array of arguments as it were. The case was largely seen as bringing to the fore a clash between two cherished human rights, fundamental rights and constitutional values which is gender justice or gender equality and the freedom of religion. Now I understand your approach was slightly different and it did not dwell on this so called clash. Could you explain the approach? Well my petitioners approach, the instructing client's approach was indeed different as I said. They argued that Islamic law does not condone the Talaqe Biddat. Islamic law actually rests or has sources in four areas. One is the Quran. The second is those words and practices which were heard and seen by his followers that is the Hadis. Then the Qiyas, the analogical deduction and Ilmah which is the scholarly view. Now in the Quran in fact it is deprecated. So the primary source of Islamic law is the Quran and that is why a large number of countries which are predominantly Muslim had already by law got rid of Talaqe Biddat. So that was one argument. The second argument was that this was a subject matter of legal disputes and resolution by judgments of various high courts which were personnel by Muslim judges all male unfortunately but all of them held that this is not part of Islamic law and therefore there is no point in actually upholding it and the last of these judgments of the Supreme Court was the Shamimara judgment which traced what has been the part of the Sharia and how the courts in India have viewed it and what should be the law in India and in fact all these judgments including Shamimara right from the Rauta's judgment of Krishna Ayurveda in Kerala High Court actually say that the interpretation which was put by the British to condone triple Talaqe was not correct. So Indian high courts actually said that in fact it was not part of Islamic law and the best of these judgments as it were most elaborately discussed was the last judgment Vasru Ramad for just as Badur Durya's Ahmed who actually clearly rested the issue as far as I was concerned but of course the Supreme Court needed to discuss it. Now in this there has been a discussion that the triple Talaqe or Talaqe Biddat is sinful but accepted as legal. So this was the irony in the whole case. So this is what we actually used as a wedge to open up the argument. So the end result of the court annulling triple Talaqe in your opinion doesn't take away from the freedom of religion and at the same time advances gender equality. Are you satisfied? Now there are two points here. One is you know Article 25 is subject to other articles. So freedom to religion unless its core part of religion will not be preserved but then there is an open issue whether actually you can still attack because Article 15 is subject to other rights in the Chapter 3. So it is open to argue which was also argued by Indira Jai Singh that you can attack it but the courts have held over a period of time that if it is central to the religion you can't attack it. If it is personal law that it is not codified and not custom then there is a judgment as I said earlier of the Bombay High Court which says you can't attack it. That issue was never resolved but I think the court has held two judges that is Justice Rohit Nariman and Justice Lalith saying it's unconstitutional. Justice Kihaar and Justice Nazir saying it is constitutional. So it is 2 versus 2. Justice Kurian Joseph says you cannot attack it on the ground of 14 and 14 elaboration as has been done by Justice Nariman about arbitrariness is correct but he doesn't go into it but he says that it is not part of Islamic law which is also held by Rohit and Nariman and Uddhila Lalith. So the overall ratio is that it is not part of Islamic law so it cannot be upheld as a practice. Thank God there is a line at the end saying and signed by all judges that it is not it is set aside. Many people are questioning if had there been a woman judge on the bench perhaps the decision would have been a little different. What are your thoughts on that? Well first of all it is not it is not easy to say that if a woman judge is on the bench she would have rendered a verdict which is prove women because we have and I have experiences where women judges have been very anti women also. I don't want to name them but I think that issue is about what is the representation of different communities on the supreme court, gender, religion, caste etc. So actually there should be plurality in this sphere but just having a woman judge would not necessarily help but I think the verdict is good not because they are of a particular gender but they have gone into and there are actually legitimate differences on this issue. I don't think the judges who have said that it is part of Islamic law and you cannot look at the constitutional issue don't think that it is not abhorrent. They think the practices is bad. Even the Muslim law personal board said it is bad we don't agree with it and they have actually now said that we are happy with the judgment. It's a way out for them also. So I think it's a complex issue just having a woman judge and saying that they would have had a different verdict doesn't really answer the gender issue. I think it's more complex than that. You need to have judges who are properly constitutionally worst, judges who have a constitutional vision of constitutional morality which is now evident in the privacy judgment for instance. What was the role played by civil society, women's groups, religious bodies, the government in such a contested polarizing issue and in having this verdict? Well it's very interesting. You know in the composition of the bench had people from all religions that was consciously done to show that India has a pluralistic religious composition in terms of the bench and I think that was a good thing. Otherwise there would be all sorts of accusations flying around. So the majority were non-Hindus. The majority were non-Muslims. It was all the religions represented and they did not vote according to the religion. In fact two of the judges were priests or ex-priests, Justice Nariman and Justice Kurianjasa. Though they were priests they would have actually upheld religious issues but they are the ones who said no. So you can see it's not so simple. In terms of the participation of various groups it's very interesting. Civil society was very vocal and I think they put up the very good arguments. Mr. Chadda, Justice Singh from Lawyers Collective and others and including me. I was in the matter very late and even the Muslim personal law board the arguments were failing good. I think all of them put up very good arguments. In that context the government put its arguments but they just supported one argument of lack of constitutionality or the invalidity only on constitutional grounds. But the lead was taken by civil society and very interestingly civil society representation had both the views constitutionality as well as interpretation of Islam. But the government only had one view. Suppose you left out one argument you might have lost. The fact that we took up both the arguments made it very clear that civil society understood the issue and they were trying to get into triple the lump. On both accounts ultimately it was held on one count. So I think civil society played a very very important point. It is good that the government supported it because otherwise they would have been you know government not supporting would have not been very good. They may have done it for their own reasons. But let me be very clear that the civil society let the fight. Thank you for watching. This is Triptita and signing off.