I must come clean that despite identifying as a human rights liberal, my American Legal Education has wreaked havoc with the ‘Supreme Court Blind Worship’ forcibly imbibed in me during my Law School days in India. In fact, I have converted to a judicial skeptic who has on occasions expressed cynicism at the activism of the Indian Supreme Court. Yet, on 22nd August 2017, much to my delight, optimism and astonishment, the Indian Supreme Court by a ratio of 3:2 abolished the practice of Talaq-E-Biddat commonly known as triple talaq which allowed “any Muslim man to legally divorce his wife by stating the word talaq three times in oral, written, or more recently electronic form”.
Rather than the much-appraised majority decision of Justice Nariman, Justice Lalit and Justice Joseph, readers in the Anglo-American world (especially judicial skeptics) would be able to relate to and find logic in the dissent of Chief Justice Jadish Singh Khehar and Justice Abdul Nazeer. Justice Khehar and Justice Nazeer acknowledged the practice of triple talaq as archaic, unjust and poor in theology, yet found themselves as a matter of legal principle and separation of powers (more particularly the political question doctrine) incapable of holding unconstitutional the practice of triple talaq. The dissent opted for a weaker remedy of injuncting the practice of triple talaq for six months. In his dissent, Chief Justice Khehar summed up the conundrum he and Justice Nazeer found themselves in by stating that Shayara Bano “is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under……the Constitution.” For a change, I believe that Shayara Bano presents an illustration where the separation of powers or the political question jargon lacks complete merit.
So how does a judicial skeptic like me get sold by the strong remedy accorded in Shayra Bano? Unlike standard contentious instances of American judicial activism like Griswold v Connecticut or Row v Wade, Shayara Bano is far more straightforward and easier to justify as a matter of Legal and Political Theory. In the patriarchal Indian society, ‘Muslim Women’ as a political group have relatively been underrepresented. Additionally, ‘Muslim Women’ have barely obtained substantial recourse from the majoritarian political process. I would go all the way to argue that the political process has deplorably failed ‘Muslim Women’ in India and have denied to them the very basic elements of democratic life. The political processes all-time low came in 1986 when the ruling Congress government owing to pressure from religious authorities overturned the Supreme Court’s Shah Bano Begum decision which upheld the right of a ‘Muslim Women’ to standard maintenance post a triple talaq. Over the years governments both at the state and federal level have taken absolutely no initiative to ameliorate the plight of ‘Muslim Women.’ While complications have existed in different areas of personal and inheritance laws, the consequences of triple talaq alone have been so appalling that roughly 1 in 11 ‘Muslim Women’ have been victims of triple talaq with the majority receiving no alimony or compensation. In such a scheme of things, though holding unconstitutional the archaic practice of triple talaq by the Supreme Court would see the Supreme Court jumping into the legislative battleground, the Supreme Courts intervention is justified on the pretext that ‘Muslim Women’ as a minority political group in India have been grossly let down by the majoritarian political process for over six decades.
Shayra Bano’s legacy does not end here. While Shayara Bano signified a victory for ninety million ‘Muslim Women’ in India, it has far greater connotations for Comparative Constitutional Scholarship than the case at hand. It is a paradigm of the precise role Constitutional Courts should play in Developing Democracies. Unlike their developed Anglo-American counterparts, Developing Democracies are under far more strain, suffering from predicaments like deeply divided societies, dysfunctional legislatures, electoral violence, lack of a constitutional culture and sudden panics and populist pressures. As a result, the representative process is often distorted, and governmental policies are steered by extraneous concerns. Incumbents behave with inexplicable prejudice, rent seeking motivations, populist agendas and with aspirations to choke political competition. Therefore, contrary to Anglo-American Democracies where the case for judicial review is compound and judicial review of legislative action is arduous to justify, the situations in Developing Democracies warrant the “obfuscation” of the political process in ways that extend to Constitutional Courts intervening in questions purely considered within the exclusive prerogatives of the elected branches.
The judicial role of Constitutional Courts should not merely extend to interventions to safeguard fundamental human rights like those in Shayara Bano but can also encompass other frequent occurrences in developing democracies such as breaking down of separation of powers, abuse of the democratic procedures, manipulation of electoral markets, electoral results and political deadlocks. In Developing Democracies common issues of judicial politics are often significantly strained in the ways that without Constitutional Courts acting as backstops and intervening, these Democracies are at risk of democratic erosion or backsliding. Constitutional Courts in Developing Democracies are hence normatively justified to tread a path I like to call ‘Democratic Protectionism’ wherein they can intervene in those instances where core minimum values of modern 21st Century Democracy like fundamental human rights, separation of powers, democratic procedures, political stability and free and fair elections are put under strain by the political process.
Howbeit, owing to the primacy of the representative process, Constitutional Courts need to be extremely cautious in their attempts at Democratic Protectionism. Democratic Protectionism should not be an unrestrained authorization for judicial activism. Constitutional Courts would need to adhere to parameters akin to that in Shayara Bano. In Shayara Bano, ‘Muslim Women’ were let down by the political process for a protracted period with no realistic expectations of reprieve in the foreseeable future. The threat to the human rights of this minority had reached a tipping point, and any further violation would compromise the ideals of modern democratic society. The intervention of the Supreme Court was the best option at hand, and a no more representative or institutionally superior alternate was available. While this tripartite test, is not an immutable standard for judicial intervention in developing democracies yet it provides appropriate guidance on the normative role of Constitutional Courts.
The Shayara Bano case has received much acclaim from Comparative scholars obtaining coverage in jurisdictions as diverse as Germany. Scholars have discussed the lessons the case can provide for Constitutional Governance in commonwealth jurisdictions like Canada. There is surely a hope that Shayara Bano leaves a strong legacy in Comparative Constitutional Scholarship. However, there is an even bigger hope that Shayara Bano goes a long way and provides the stepping stones for ameliorating the plight of Muslim Women who have for decades been oppressed by the society, religious authorities and the government.