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Triple Talaq verdict: When Chief Justice JS Khehar’s opinion was overruled

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JS Khehar

[vc_row][vc_column][vc_column_text]Chief Justice of India, Jagdish Singh Khehar, whose term in office ends on August 27, may have headed the five-judge Bench of the Supreme Court that in its historic judgment, on Tuesday, banned the practice of instant triple talaq among Muslims but he, along with Justice S Abdul Nazeer, had favoured that the Union government and not the apex court should decide on the validity of Talaq-ul-Biddat

For a brief while on Tuesday morning, as the Supreme Court began pronouncing its historic verdict on the validity of Talaq-ul-Biddat, it felt as if the five-judge Bench headed by Chief Justice of India, JS Khehar, did not want to take responsibility of banning the highly controversial practice itself but instead have the Centre and Parliament decide on the move.

It was only when the final order was read out that it emerged that the verdict was split and instant triple talaq was to be banned immediately, and Chief Justice Khehar’s opinion of letting the government pass a law to this effect was in a minority- supported by only one other member of the Bench, Justice S Abdul Nazeer.

Here’s a glimpse of what different members of the 5-judge Bench said in their order on the landmark case.

Chief Justice JS Khehar and Justice S Abdul Nazeer

  • We have arrived at the conclusion, that ‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi school. It constitutes a matter of their faith. It has been practiced by them, for at least 1400 years. We have examined whether the practice satisfies the constraints provided for under Article 25 of the Constitution, and have arrived at the conclusion, that it does not breach any of them. We have also come to the conclusion, that the practice being a component of ‘personal law’ has the protection of Article 25 of the Constitution.
  • We were obliged to keep reminding ourselves, of the wisdoms of the framers of the Constitution, who placed matters of faith in Part III of the Constitution… We cannot nullify and declare as unacceptable in law, what the Constitution decrees us, not only to protect, but also to enforce.
  • Such a call of conscience, as the petitioners (demanding ban on triple talaq) desire us to accept, may well have a cascading effect. We say so, because the contention of the learned Attorney General was, that ‘talaq-e-ahsan’ and ‘talaq-e-hasan’ were also liable to be declared unconstitutional, for the same reasons as have been expressed with reference to ‘talaq-e-biddat’. According to the learned Attorney General, the said forms of talaq also suffered from the same infirmities as ‘talaq-e-biddat’. The practices of ‘polygamy’ and ‘halala’ amongst Muslims are already under challenge before us. It is not difficult to comprehend, what kind ofchallenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities.
  • The wisdom emerging from judgments rendered by this Court is unambiguous, namely, that while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist. It is not for a court to determine whether religious practices were prudent or progressive or regressive. Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem.
  • A perusal of the consideration recorded by us reveals that the practice of ‘talaq-e-biddat’ has been done away with, by way of legislation in a large number of egalitarian States, with sizeable Muslim population and even by theocratic Islamic States… There can be no doubt, and it is our definitive conclusion, that the position can only be salvaged by way of legislation…The Union of India has appeared before us in support of the cause of the petitioners…Unfortunately, the Union seeks at our hands, what truly falls in its own.
  • We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States. When the British rulers in India provided succor to Muslims by legislation, and when remedial measures have been adopted by the Muslim world, we find no reason, for an independent India, to lag behind.
  • Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘talaq-e-biddat’– as one, or alternatively, if it is decided that the practice of ‘talaq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.

Kurian

Justice Kurian Joseph

  • The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt for reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality.51 In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat.
  • I find it extremely difficult to agree with the learned Chief Justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law.
  • I expressly endorse and re-iterate the law declared in Shamim Ara (another case in which triple talaq was declared invalid). 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.

Justices Rohinton F Nariman and UU Lalit

  • It is clear that this form of Talaq (Talaq-ul-Biddat) is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India.
  • In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void.

The final order signed by the 5-judge Bench:

In view of the different opinions recorded, by a majority of 3:2, the practice of ‘talaq-e-biddat’ – triple talaq is set aside.[/vc_column_text][/vc_column][/vc_row]

India News

Election Commission responds after Kejriwal questions BJP’s involvement in home voting process

Upon approval, a polling team, comprising election officials and security personnel, will visit the voter’s residence prior to election day to facilitate the voting process.

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The Election Commission of India (ECI) issued a detailed clarification regarding the home voting facility for the upcoming Delhi Assembly elections scheduled for February 5, 2025. This initiative, designed to enhance accessibility for senior citizens (over 85 years old) and persons with disabilities (PwD), requires eligible voters to submit Form 12D to apply.

Upon approval, a polling team, comprising election officials and security personnel, will visit the voter’s residence prior to election day to facilitate the voting process.

Crucially, the ECI clarified that candidates or their authorized representatives will be permitted to accompany the polling team during these home visits. This provision addresses concerns raised by Aam Aadmi Party (AAP) leader Arvind Kejriwal, who had previously highlighted a video showing BJP representatives present during a home voting event.

While the ECI statement did not directly mention Kejriwal or any specific political party, the inclusion of candidate representatives aims to ensure transparency and alleviate concerns about potential irregularities. The commission’s statement emphasizes that the presence of representatives is permissible to uphold fairness and prevent any accusations of undue influence.

The ECI has received a significant number of applications for this facility: 6,447 from senior citizens and 1,058 from PwD voters. To date, 1,271 senior citizens and 120 PwD voters have already cast their ballots through this home voting system. The process itself involves the polling team providing the voter with a ballot paper, overseeing the casting of the vote, and ensuring strict adherence to ECI guidelines regarding confidentiality. To maintain transparency and accountability, the entire process is recorded on video.

The ECI unequivocally stated that participation in the home voting option is entirely voluntary. Voters choosing this method will not be allowed to cast their vote at a regular polling station on election day.

The commission reiterated its commitment to conducting free and fair elections and underscored the importance of this initiative in promoting inclusive participation in the democratic process. Voters facing any difficulties are urged to contact their local Returning Officer (RO) or district Election Officer (DEO), or utilize the central helpline at 1950.

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India News

76th Republic Day: US sends warm wishes to India, says defining relationship of the 21st century

The meeting with his Quad counterparts—External Affairs Minister S Jaishankar of India, Takeshi Iwaya of Japan, and Penny Wong of Australia—focused on enhancing economic opportunities and ensuring peace and security in the Indo-Pacific. It served as a practical demonstration of the commitment to the strategic vision articulated in his Republic Day statement.

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The United States marked India’s 76th Republic Day with effusive praise, highlighting the enduring strength of the world’s largest democracy and the burgeoning partnership between the two nations. Secretary of State Marco Rubio, in a statement released on the occasion, extended warm congratulations to the people of India, emphasizing the significance of the Indian Constitution as the bedrock of this vibrant democracy. He went beyond simple well-wishes, however, painting a picture of a rapidly strengthening bilateral relationship destined for even greater heights.

Rubio’s statement explicitly described the US-India partnership as “the defining relationship of the 21st century,” a bold assertion reflecting the growing strategic alignment and mutual economic interests between the two nations. This statement was not merely ceremonial; it underscored the deepening cooperation across various sectors, from space research to joint efforts within the Quadrilateral Security Dialogue (Quad).

The Quad, comprising the US, India, Japan, and Australia, received significant attention in Rubio’s remarks. He emphasized the alliance’s crucial role in promoting a “free, open, and prosperous” Indo-Pacific region, a clear signal of the shared commitment to counterbalancing China’s influence in the region.

This emphasis was reinforced by Rubio’s actions earlier in the week, hosting a crucial meeting of Quad foreign ministers at the US Department of State. This meeting, his first official engagement as Secretary of State, underscored the immediate priority given to strengthening the Quad alliance and its collaborative efforts.

The meeting with his Quad counterparts—External Affairs Minister S Jaishankar of India, Takeshi Iwaya of Japan, and Penny Wong of Australia—focused on enhancing economic opportunities and ensuring peace and security in the Indo-Pacific. It served as a practical demonstration of the commitment to the strategic vision articulated in his Republic Day statement.

Furthermore, Secretary Rubio’s bilateral meeting with External Affairs Minister Jaishankar in Washington D.C. further cemented the strengthening ties between the two countries. The discussions covered a broad range of topics, including regional issues and avenues for further deepening the US-India relationship.

A notable point of discussion, as highlighted in an official press release, included a shared commitment to addressing concerns related to irregular migration, an area of mutual interest requiring collaborative solutions. This commitment, alongside the focus on economic ties, demonstrated the multifaceted nature of the burgeoning partnership, extending beyond strategic security concerns.

India’s own Republic Day celebrations showcased the nation’s unique blend of cultural diversity, unity, and military strength. The grand parade on Kartavya Path served as a vivid display of national pride and the successful integration of diverse elements into a cohesive and powerful nation. The presence of Indonesian President Prabowo Subianto as the Chief Guest further underscored India’s growing global influence and its capacity to foster strong relationships with key international partners.

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India News

Ratan Tata featured in Jharkhand’s Republic Day tableau, pic surfaces

By celebrating both its industrial achievements and its vibrant cultural traditions, the tableau offered a nuanced and multifaceted portrayal of Jharkhand, highlighting its progress while deeply respecting its heritage.

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Jharkhand’s Republic Day tableau, a vibrant spectacle of colour and movement, presented a compelling narrative of the state’s journey from its rich heritage to its remarkable progress. The tableau, aptly titled “Swarnim Jharkhand: A Tradition of Heritage and Progress,” served as a powerful visual testament to the state’s multifaceted identity. Central to this narrative was the pivotal role played by the late industrialist, Ratan Tata, whose visionary leadership laid the groundwork for much of Jharkhand’s subsequent development.

The tableau’s design was meticulously crafted to showcase this multifaceted narrative. At its heart was Jamshedpur, India’s first planned industrial city, a legacy of Tata’s pioneering efforts. This iconic city, depicted in vivid detail, served as a powerful symbol of industrial growth and modernization. However, the tableau astutely avoided portraying a solely industrial narrative. It carefully integrated elements celebrating Jharkhand’s cultural richness and its commitment to social progress.

A striking image of two young girls engaged with laptop computers underscored Jharkhand’s significant strides in education. This symbolized the state’s dedication to expanding educational access, particularly for tribal children in both urban and rural areas, representing a crucial investment in the future.

The tableau cleverly juxtaposed this modern image with vibrant representations of traditional art forms. Sohrai and Khobar paintings, meticulously crafted by tribal artists, were displayed prominently, showcasing the enduring legacy of Jharkhand’s artistic heritage. Adding to the spectacle, performers enacted the energetic Chhau dance of Seraikela, a captivating dance form deeply rooted in the state’s cultural identity.

The tableau also subtly highlighted the contributions of women in Jharkhand’s economic landscape, acknowledging their significant role in generating employment and driving economic growth. This balanced depiction of industrial progress and cultural preservation made the tableau a truly comprehensive representation of Jharkhand’s identity.

By celebrating both its industrial achievements and its vibrant cultural traditions, the tableau offered a nuanced and multifaceted portrayal of Jharkhand, highlighting its progress while deeply respecting its heritage.

The inclusion of the Jaduguda uranium plant subtly acknowledged the state’s contribution to India’s nuclear energy program. In essence, the tableau was a powerful and memorable celebration of Jharkhand’s journey, skillfully weaving together its past, present, and future.

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