In 2017, India’s Top Judiciary Reached New Heights – and New Lows

It is hard to disagree with the final outcome. However, it is equally difficult to not see the decision as a missed opportunity. Long-standing constitutional precedent is still that personal laws are not subject to fundamental rights. Refusal to test personal laws on the touchstone of fundamental rights meant that the validity of religious laws continues to be decided on a judge’s interpretation of religious texts. Further, it leads to an anomalous situation where a personal law, when codified, is amenable to a fundamental rights infringement challenge. However, the same law in an uncodified form is immune to constitutional scrutiny. The triple talaq case presented the perfect opportunity to re-examine this position. Justice Nariman’s opinion does indicate that this may be done in a suitable case. However, the court stopped short of examining personal law on the basis of the constitution.

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