Chapter 14
Lessons from Shayara Bano, India’s Triple Talaq Decision
In: The Asian Yearbook of Human Rights and Humanitarian LawSearch for other papers by Vrinda Narain in
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Abstract
The contradictions inherent in the simultaneous existence of discriminatory Muslim personal law and constitutional equality guarantees pose serious challenges for Muslim women’s equality in India. This contradiction between public equality and private discrimination, and the privileging of religious freedom and minority rights over gender equality, has meant that women’s equality has been largely marginalised in India’s constitutional thought and jurisprudence. In the context of multiple axes of discrimination experienced by Muslim women, the author is interested in better understanding the interface between religious personal law and constitutional law. A brief survey of key jurisprudence reveals that even when the Indian Supreme Court takes note of women’s disadvantage under personal law, it quickly moves on to decide such cases on other grounds, ignoring or not adequately acknowledging that women’s inequality raises core constitutional questions. The focus of this article is India’s Supreme Court decision on Muslim personal law, Shayara Bano, popularly known as the Triple Talaq case.1 This case concerned a constitutional challenge to the practice of instantaneous divorce, the triple talaq, which is a unilateral, unregulated right to divorce enjoyed by Muslim men. The Supreme Court declared instant divorce, or triple talaq (talaq-e-bidat) unconstitutional. Balancing women’s equality with religious freedom and responding to the call for change from within the Muslim community, this decision is an important milestone in the evolution of Indian religious freedom jurisprudence. Drawing from this decision, this article asks how Muslim women’s equality rights can be constitutionalized.2 Reflecting on emerging jurisprudence, this article examines how the Indian Supreme Court has responded when women have sought to enforce their constitutional right to equality. In particular, how does the Supreme Court balance gender equality, religious freedom and minority rights? How does the