Triple Talaq by Salman Khurshid

Triple Talaq by Salman Khurshid

Author:Salman Khurshid
Language: eng
Format: epub
Tags: N/A
ISBN: 9780199093250
Publisher: Oxford University Press
Published: 2018-01-10T05:00:00+00:00


The Dissolution of Muslim Marriages Act, 1939, the first attempt at legislation after the path-breaking clarification in 1937, in essence gave statutory framework to the rights of divorce or dissolution that Muslim women have under Shariah. The Objects and Reasons of the Act once again state that it is to consolidate and clarify as indeed to remove doubts about the effect of renunciation of Islam. What is however more important is that in passing this legislation, the legislature specifically recognized that to obviate the harshness of Shariah according to one maslaq, it was open to borrow from another maslaq.

It must be pointed out that in both cases, legislation was passed on the insistence of the Muslim clergy. Since then, however, there has been no similar popular demand for further legislation; if anything, there have been repeated assertions for a hands-off approach by the Parliament. It was therefore somewhat surprising that during the hearing of this case the Board‘s counsel should have expressed willingness to Parliament interceding. What made it more puzzling is that while the Court was told to steer clear of Personal Law of 1,400-year vintage, there was an admission that it was not out of bounds for legislature! Perhaps it was this concession that persuaded the then Chief Justice to carve out the path for appropriate legislation. But then it must be recalled that the Attorney General had sought a clean slate with all forms of talaq invalidated with a promise that Parliament would put down a comprehensive law to replace it.

As a constitutional court it was inevitable that the Bench would be invited to examine the entire issue from a constitutional perspective, or what the Attorney General described as “constitutional morality”. Inevitably, that raises our understanding and reading of the Constitution. This is a vast subject and the Supreme Court has much dicta dealing with it. But I felt it was important to point out that constitutional morality is quite different from popular morality that can be gleaned from public-opinion surveys and referenda. In the context, I gave the Court copies of the inaugural lecture for the Chair of Jurisprudence at Oxford by the late Professor Ronald Dworkin. The distinguished philosopher, in dealing with the complex idea of “Hard Cases” (the title of the lecture), imagines two kinds of judges: the first is called Hercules, with the amazing intellectual prowess of a super judge; the other, Herbert, after the former occupier of the Chair—H.L.A. Hart—whose linguistic theory of judicial decision-making had been challenged by Dworkin.

Drawing from intuition and experience of how judges in the common law system approach difficult legal problems, Dworkin arrives at the following conclusions:2

We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen,whom I shall call Hercules.



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