There is a history of Muslim women fighting for their rights within Muslim law. Justice Kurian Joseph’s judgment recognises this female interpretative authority, allowing Muslim women in India to enjoy both their right to equality and their right to faith under the Indian Constitution.
The Supreme Court of India gave three judgments when asked to consider the constitutional validity of the practice of talaq-e-bidat, or instant triple talaq. The judgments of Justices Rohinton F. Nariman and U.U. Lalit, which find the practice violative of the Indian Constitution, have been widely praised, while that of Chief Justice J.S. Khehar and Justice Abdul Nazeer, holding that personal laws are protected from constitutional scrutiny, has been criticised.
However, the judgement of Justice Kurian Joseph, who cast the deciding vote making talaq-e-bidat illegal, has caused uneasiness because he bases his decision on the argument that the practice of talaq is violative of the Shariat rather than the Constitution. Commentators have expressed concern at this failure to uphold individual rights, condemned it for lack of clarity, or been dismayed at judicial theology. Such a reading does great disservice to the brave petitioners in the case, the careful judgment of Justice Joseph and to the cause of pluralism in a democracy.
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