In his minority judgment in the triple talaq case, Chief Justice of India J.S. Khehar expresses apprehension about the inroads “rationalists” may make into other “personal law” practices, and advises judges to exercise absolute restraint, and not activism, in matters of religious faith.
“A call of conscience may have a cascading effect ... Attorney-General wanted ahasan and hasan [two other acceptable and revocable forms of triple talaq] to be declared unconstitutional. Halala and polygamy are already under challenge. It is not difficult to comprehend what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities,” the Chief Justice warned in his judgment, supported by Justice S. Abdul Nazeer on the Bench.
Be guarded
The Chief Justice goes on to observe that “we have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices and personal law.”
Having declared instant talaq a matter of religious faith, Chief Justice Khehar asks whether “a court, based on a righteous endeavour, can declare that a matter of faith, be replaced — or be completely done away with?”
Constitutional guarantee
“The Constitution assures believers of all faiths, that their way of life, is guaranteed, and would not be subjected to any challenge, even though they may seem to others — and even rationalists practising the same faith — unacceptable, in today’s world and age,” Chief Justice Khehar wrote.
He observed that a court of law has limited jurisdiction in matters of faith.
“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. Religion and ‘personal law’ must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be — including self-proclaimed rationalists — of the same faith,” Chief Justice Khehar said.
Call for law
The minority judgment asked the government to frame a law on triple talaq, especially instant talaq.
Advising “absolute restraint” while hearing matters of faith, the Chief Justice said an “activist court” may not be fully equipped to cope with the intricacies of an issue which requires legislative attention. At best, the court may advise and focus the attention of the state to the issue, “shake it from its slumber, goading it to awaken, march and reach the goal.”
