By Chandan Goswami and Murali Krishnan.Senior Advocate R Basant today gave a talk on the Triple Talaq judgment, which was delivered by the Supreme Court on August 22..Organised by an informal collective of Supreme Court lawyers viz., ‘Friday Group’, the talk was given in Library 2 of the Supreme Court at 3 pm..In his speech, Basant dealt with myriad aspects relating to the judgment. However, the thrust of his speech was on the interplay between Article 25 and other Part III rights and the correctness of the Bombay High Court judgment in Narasu Appa Mali..Article 25 subject to other Part III rights.Basant was very categorical in his view that Article 25 is subject to Articles 14, 15 and 21..“The right under Article 25 is subject to Articles 14, 15 and 21. 25 cannot override 14, 15 and 21. If that is so, I think they have gone into the fundamental error of thinking that Article 25 would govern the field and that would be untouched and uninfluenced by Articles 14, 15 and 21.”.Narasu Appa Mali – an opportunity lost.He spoke at length about the Narasu Appa Mali judgment, lamenting that it was an opportunity lost for the Supreme Court to reconsider that decision..“Court should have considered whether Narasu Appa Mali is valid law or not. It should not have shied away from that. Because three judges held that it is part of personal law, the question whether personal law is amenable to Part III or not should have been considered.”.Citing HM Seervai, Basant reasoned that if personal law is not a law in force under Article 13, then such law will not be existing law..“Article 13 defines what is law in force. In the Narasu Appa Mali judgment it has been laid down that personal law is neither law nor law in force. .Article 372 of the Constitution says that all existing laws will continue to operate. When the Constitution comes into force, law does not have a holiday. Whatever laws exist will continue to operate. So, if you say personal law is not existing law, then it will not continue after the Constitution comes into force. So, there cannot be personal law if we go by such interpretation..Seervai, therefore, says that there is no difference between law, existing law and law in force and therefore, Article 13 challenge is maintainable against a stipulation which falls within the domain of pure personal law.”.He also gave a peek into how the Bombay High court itself had disagreements with Narasu Appa Mali..“Narasu Appa Mali is interesting in that the Bombay High Court also felt that it is not correct law. And therefore, In Re, Smt. Amina vs Unknown, a learned judge of the Bombay High Court referred the matter to a larger Bench. The larger bench, however, said that the question does not arise in the facts of the particular case and, therefore, refused to go into it. .The point that I want to make is that the Bombay High Court itself has doubted the judgment in Narasu Appa Mali.” .Basant further quoted Justice VR Krishna Iyer to buttress his point of view..“‘Not Manu or Mohammed but the monarch, for the time being, makes personal law enforceable’, said Krishna Iyer J. .So one cannot say that Shastric Hindu law or Islamic law is not law. I am bound to obey the law and if I do not obey the law, the sovereign will enforce it. Therefore, it has to pass the test of Constitutionality. That is why I say that the Constitutional ethos has not been imbibed (by Narasu Appa Mali) when it says that personal law is immune from challenge since it is not covered by Article 13. It is a very wrong approach. .I would like to say that Narasu Appa Mali deserves to be reconsidered. This was an opportunity to do that but they did not. That is my grievance about this judgment.”.He also waxed eloquent about Constitutional morality and how it should override religious morality..“We would have made a vibrant Constitutional republic where fundamental rights are given primacy over all personal laws, whatever be the denomination. My Bible, Gita and Quoran today is the Constitution and therefore I would insist that Constitutional morality is more important than personal religious morality. .Constitutional stipulations are to be more important than any other (stipulations) and I believe it should be so for everyone. I cannot have a morality over and above what is mentioned in the Constitution. Constitutional morality must reign supreme. .Only when the Supreme Court sits to consider the judgment in Narasu Appa Mali, my grievance will be ameliorated.”.Besides the above, Basant also opined that the Court should have decided other issues, including polygamy..“A golden opportunity which was served on a platter was missed by the Court”, he said..He was also extremely critical of the minority opinion in the judgement and said that the no reference was made by the minority judges to the majority opinion..Basant said that while writing a judgment wherein plural/multiple issues are under consideration, the judges must sit together and arrive at a consensus and frame issues and write their views, confined to the issues so framed. He felt that the Supreme Court is yet to develop the art of writing a plural judgement..Besides, he also said that the Court has only set aside the practice of Triple Talaq and not ruled on its Constitutionality. He, therefore, said that the judgment had nothing new to offer with respect to Triple Talaq, as the judgment of Shamim Ara was already governing the field.
By Chandan Goswami and Murali Krishnan.Senior Advocate R Basant today gave a talk on the Triple Talaq judgment, which was delivered by the Supreme Court on August 22..Organised by an informal collective of Supreme Court lawyers viz., ‘Friday Group’, the talk was given in Library 2 of the Supreme Court at 3 pm..In his speech, Basant dealt with myriad aspects relating to the judgment. However, the thrust of his speech was on the interplay between Article 25 and other Part III rights and the correctness of the Bombay High Court judgment in Narasu Appa Mali..Article 25 subject to other Part III rights.Basant was very categorical in his view that Article 25 is subject to Articles 14, 15 and 21..“The right under Article 25 is subject to Articles 14, 15 and 21. 25 cannot override 14, 15 and 21. If that is so, I think they have gone into the fundamental error of thinking that Article 25 would govern the field and that would be untouched and uninfluenced by Articles 14, 15 and 21.”.Narasu Appa Mali – an opportunity lost.He spoke at length about the Narasu Appa Mali judgment, lamenting that it was an opportunity lost for the Supreme Court to reconsider that decision..“Court should have considered whether Narasu Appa Mali is valid law or not. It should not have shied away from that. Because three judges held that it is part of personal law, the question whether personal law is amenable to Part III or not should have been considered.”.Citing HM Seervai, Basant reasoned that if personal law is not a law in force under Article 13, then such law will not be existing law..“Article 13 defines what is law in force. In the Narasu Appa Mali judgment it has been laid down that personal law is neither law nor law in force. .Article 372 of the Constitution says that all existing laws will continue to operate. When the Constitution comes into force, law does not have a holiday. Whatever laws exist will continue to operate. So, if you say personal law is not existing law, then it will not continue after the Constitution comes into force. So, there cannot be personal law if we go by such interpretation..Seervai, therefore, says that there is no difference between law, existing law and law in force and therefore, Article 13 challenge is maintainable against a stipulation which falls within the domain of pure personal law.”.He also gave a peek into how the Bombay High court itself had disagreements with Narasu Appa Mali..“Narasu Appa Mali is interesting in that the Bombay High Court also felt that it is not correct law. And therefore, In Re, Smt. Amina vs Unknown, a learned judge of the Bombay High Court referred the matter to a larger Bench. The larger bench, however, said that the question does not arise in the facts of the particular case and, therefore, refused to go into it. .The point that I want to make is that the Bombay High Court itself has doubted the judgment in Narasu Appa Mali.” .Basant further quoted Justice VR Krishna Iyer to buttress his point of view..“‘Not Manu or Mohammed but the monarch, for the time being, makes personal law enforceable’, said Krishna Iyer J. .So one cannot say that Shastric Hindu law or Islamic law is not law. I am bound to obey the law and if I do not obey the law, the sovereign will enforce it. Therefore, it has to pass the test of Constitutionality. That is why I say that the Constitutional ethos has not been imbibed (by Narasu Appa Mali) when it says that personal law is immune from challenge since it is not covered by Article 13. It is a very wrong approach. .I would like to say that Narasu Appa Mali deserves to be reconsidered. This was an opportunity to do that but they did not. That is my grievance about this judgment.”.He also waxed eloquent about Constitutional morality and how it should override religious morality..“We would have made a vibrant Constitutional republic where fundamental rights are given primacy over all personal laws, whatever be the denomination. My Bible, Gita and Quoran today is the Constitution and therefore I would insist that Constitutional morality is more important than personal religious morality. .Constitutional stipulations are to be more important than any other (stipulations) and I believe it should be so for everyone. I cannot have a morality over and above what is mentioned in the Constitution. Constitutional morality must reign supreme. .Only when the Supreme Court sits to consider the judgment in Narasu Appa Mali, my grievance will be ameliorated.”.Besides the above, Basant also opined that the Court should have decided other issues, including polygamy..“A golden opportunity which was served on a platter was missed by the Court”, he said..He was also extremely critical of the minority opinion in the judgement and said that the no reference was made by the minority judges to the majority opinion..Basant said that while writing a judgment wherein plural/multiple issues are under consideration, the judges must sit together and arrive at a consensus and frame issues and write their views, confined to the issues so framed. He felt that the Supreme Court is yet to develop the art of writing a plural judgement..Besides, he also said that the Court has only set aside the practice of Triple Talaq and not ruled on its Constitutionality. He, therefore, said that the judgment had nothing new to offer with respect to Triple Talaq, as the judgment of Shamim Ara was already governing the field.
