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It was unnecessary to approach the Supreme Court on triple Talaq and Right to Privacy

The father of the boy had sought a parallel CBI probe in the case. Photograph: (Reuters)

New Delhi, Delhi, India Sep 14, 2017, 06.14 AM (IST) Gaurav Gupta

Triple Talaq

In the triple Talaq case decided recently by 5 Judges of the Supreme Court, the Petitioner had prayed that ‘talaq-e- biddat’ (or instant triple Talaq) be declared unconstitutional.

The above question, however, seems to have already been decided in 2002 by the Supreme Court in the case of Shamim Ara. To the best of anyone’s knowledge, there was no subsequent decision by the Supreme Court after 2002 which held contrary to Shamim Ara. Therefore, it is difficult to understand that if the issue was unequivocally settled by a 2 Judge Bench, then what was the need for the present matter to be decided by a 5 Judge Bench. A case which should have been decided by the Trial Court in view of the settled law was heard at length by a Constitution Bench of the Supreme Court.

In their combined dissenting Judgment, Chief Justice Khehar and Justice Nazeer mentioned that the Supreme Court in the Shamim Ara case did not debate the issue of the validity of ‘talaq-e-biddat’. Therefore, it was imperative for the 5 Judge Bench to decide this issue afresh.

This, however, in my opinion, does not seem to be the correct position. It is evident that what Shamim Ara struck down was the practice of instant triple Talaq. Though Shamim Ara does not mention the term ‘talaq-e- biddat’ in the judgment, but there can be no dispute that instant triple Talaq and ‘talaq-e- biddat’ are entirely one and the same thing.

In fact, Justice Kurian, who was a part of the majority view in the recent decision, mentions in his judgment that the issue of triple Talaq has already been decided in the Shamim Ara verdict, and concludes by saying that “this Court has done its part in Shamim Ara”. Further, the combined judgment of Justice Nariman and Justice Lalit also holds that triple Talaq is no longer valid after the Shamim Ara decision.

If that was so, it begs the question why the exercise was repeated all over again by setting up a Constitution Bench.

It was observed by the 5 Judge Bench that husbands continued to divorce their wives by instant triple Talaq even after the Shamim Ara judgment. The focus, therefore, should have been to see why the 2002 decision is not being implemented, rather than setting out to decide the same controversy afresh. If the 2 Judge Bench decision given 15 years ago is being flouted with impunity, there is no reason to assume that this 5 Judge decision will be respected any more than that.

Right to Privacy

A 9 Judge Bench of the Supreme Court was recently called upon to decide whether there exists a Fundamental Right to Privacy under our Constitution. While seeking reference to the 9 Judge Bench, the government contended that 2 old decisions of the Supreme Court in M.P. Sharma (8 Judges) and Kharak Singh (6 Judges) held that the Indian Constitution does not protect the Right to Privacy.

A careful perusal of the unanimous decisions of all the 9 Judges now shows that the government may have sought to create a controversy where none existed by attempting to re-agitate a well-settled issue.

M P Sharma

The Supreme Court held in MP Sharma that Right to Privacy is not a Fundamental Right guaranteed under Article 20(3) of the Constitution. The judgment does not adjudicate on whether a Right to Privacy exists under the Right to Life and Liberty under Article 21.

Kharak Singh

Kharak Singh contains contradictions in itself since it observes that Article 21 does provide a guarantee against invasion into the sanctity of a person’s home. However, it eventually holds that Right to Privacy is not a guaranteed right under our Constitution.

While delivering the above two decisions, the Supreme Court relied upon the case of A.K. Gopalan which stated that Fundamental Rights were mutually exclusive. Therefore, a law which impinged on any of the freedoms mentioned in Article 19 was not required to answer to the test of life and personal liberty in Article 21.

A.K. Gopalan subsequently stood overruled in the case of R.C. Cooper by the Supreme Court in an 11 Judge Bench (more than the 8 Judges in M.P. Sharma and 6 Judges in Kharak Singh), stating that the Fundamental Rights in Articles 14, 19 and 21 were interwoven and cannot be held mutually exclusive.

The abrogation of the Gopalan doctrine in Cooper was revisited and carried to its logical conclusion by a 7 Judge Bench in Maneka Gandhi which expressly overruled Kharak Singh.

Since then, the Supreme Court in dozens of Judgments such as Mr. X, PUCL, Sudhansu Sahoo, Selvi, NALSA etc. has categorically held that Right to Privacy is a part of the Right to Life and Liberty under Article 21 of the Constitution.

In fact, it has been repeatedly held that the decisions in MP Sharma and Kharak Singh are not of much help anymore in deciding whether a Right to Privacy exists under the Constitution as the very foundations of these judgments have been removed by R.C. Cooper and Maneka Gandhi. There is thus, no dispute that MP Sharma and Kharak Singh no longer reflect the correct position of law.

In my humble view, the 3 Judge Bench and later the 5 Judge Bench would have been well within their right to decide the Aadhaar case without making any reference to the 9 Judge Bench, on the settled principle that the Constitution does recognise a Fundamental Right to Privacy, albeit subject to reasonable restrictions.

What is disturbing is that despite knowing that such a settled position of law exists (the Attorney General even conceded the existence of a Fundamental Constitutional Right to Privacy during the hearing), the government chose to attempt to set the clock back by adopting a highly regressive and archaic stand that Right to Privacy does not exist under the Constitution.

In order to defend this indefensible position, the Indian government had to resort to superficial arguments like Privacy is an elitist idea and the poor do not care about having a Right to Privacy.

Had the Court accepted the arguments of the State, not only would this have undone decades of Constitutional jurisprudence that we have painstakingly evolved, it would also have rendered vulnerable, the sheer multitude of rights that are contained in the pantheon of Right to Privacy, which by itself is a recipe for catastrophe.

Sending a message to the world outside that 70 years after independence, Indian citizens have now been granted the Right to Privacy is not in keeping with the ethos and image of the world’s largest democracy.

The Triple Talaq and Right to Privacy Judgments decided by 5 Judges and 9 Judges over weeks and weeks of hearings, may seem like emphatic victories for citizens, unfortunately, do not lay down any new law and are rather merely reiterations of settled legal principles.

When there are so many other pressing issues in our country which are pending a determination by the Supreme Court, one wonders whether these adjudications could have been avoided altogether.


Gaurav Gupta

Gaurav Gupta is an advocate, specialising in constitutional law.

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