The Constitutionality of Judicial Activism in Religion - The repeal of Triple Talaq has been called into Question
Yash Patil, Bharati Vidyapeeth New Law College, Pune
Abstract
Due to its nature of violating the rights of thousands of Muslim women, the practise of Triple Talaq has been hotly debated by the Indian Judiciary. While the practise has some religious underpinnings, it has been abused by males to maintain their dominance over their spouses. In 2017, the Hon’ble Supreme
Court deemed this practise unlawful and shut it down in Shayara Bano v. Union of India, analysing the arbitrary component of the practise that undermines women’s equal standing in Indian society. While feminists and constitutionalists hailed the decision as a success, it looked to be a blow to the Muslim
community’s religious beliefs. The purpose of this research paper is to examine the decision and determine whether or not it is constitutional. The author of this article aims to address two major issues: the legality of the judgement in light of the Supreme Court’s jurisdiction to intervene in a personal religious practise under Article 13 of the Constitution, and the legality of the Supreme Court’s
decision to strike down Triple Talaq under Article 25 of the Constitution.
Keywords: Triple Talaq, Article 13, Article 25, Doctrine of Essential Practices,
Holy Quran
