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Are Supreme Court judges ‘competent’ enough to decide on triple talaq?

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Vijayaraghavan Narasimhan
Vijayaraghavan NarasimhanJul 04, 2017 | 19:42

Are Supreme Court judges ‘competent’ enough to decide on triple talaq?

The Supreme Court re-opened on Monday, and Chief Justice JS Khehar is due to retire on August 27, 2017. 

Between those two dates, the court is slated to pronounce judgment on the triple talaq issue which was heard by a constitutional bench of five judges presided over by the Chief Justice during the summer vacations. 

Two key issues were flagged for consideration i) whether triple talaq was an “essential part” of the religious practice of Muslims, and ii) whether triple talaq as a precept and practice of personal law is unconstitutional. 

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Tomes have been written on both issues and it may be presumptuous to offer our opinion on what the top court should or should not do or even may lay down. We have to necessarily wait for the verdict from the pulpit in strict obedience to judicial deference. So be it.

But it need not detain us from considering a very important characteristic that stuck out during the hearings.

Religious beliefs and faiths of historic vintage were bandied about from either side or from all sides. There were serious efforts made to suggest that being a matter of “faith” and practised by the community in question for hundreds of years, the court ought to keep off.

The challenge come from those who suggested that no matter whether triple talaq was being wrongly claimed to be part of “essential practice”, which it was not, in any case it was unconstitutional at the core as it impacted human rights and life and liberty of the concerned and affected.

Obviously, therefore, all sides pressed into service religious literature of historical vintage to support their respective stands.

Now, a few simple questions from this column - how competent is the Supreme Court of “generalist” judges to pronounce on religion and theology and decide on the factual foundation before they traverse into the legal plane?

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Do judges have the domain knowledge to decide whether triple talaq is an “essential practice” and part of the foundational religious beliefs of the community? Which literature or view would prevail over another as the most authentic or “the version” to accept?

Were the lawyers who argued on the legal issues well versed in theology and the inputs from their side good enough for the judges to decide the “religious practice”? Does not the domain knowledge of the “expert”, either urging on behalf of all sides and those that deliver on it, a salient necessity?

What of it? How would the court address the issue and is there a mechanism in place before the courts of law to address the domain knowledge required in such “specialised” questions?

All very interesting questions that come to the fore with no easy answers. 

But research disclosed that this is not an isolated issue of recent origin, yet it has become a huge one contextually in the times we live in. It appears that the world over judges and courts are not immune to “googling” for answers and using them as “research” made, and basing their judicial decisions on it.

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(“The internet provides a revolutionary new tool for members of the judiciary at all levels (trial courts and appellate courts) to address these so-called “legislative facts” on their own. Social science studies, raw statistics, and other data are now all just a Google search away”). 

But who is to say that the research results so obtained are authentic and beyond question? It is not as if such “specialised” issues have arisen only now before the courts of law. They have arisen in the past and dealt with also. But one cannot say, with conviction, happily at that.

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The Supreme Court is being watched. Photo: Reuters

That is the point that is sought to be urged in the context of recent suggestions that have been made for receipt of “special domain knowledge” which needs to be factually adverted to and pronounced upon by courts, in the course of untangling the legal web or maze, the world over.

The apex court is no exception. It is aware of its “limitations”. Read the observations in Peerless General Finance and Investment Co. (1992), in Premium Granites (1994), Balco Employees Union (2001), all from the Supreme Court - courts are not to interfere with economic policy which is the function of experts. 

It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.

In the words of Chief Justice Neely – West Virginia Supreme Court: “I have very few illusions about my own limitations as a judge. I am not an accountant, electrical engineer, financer, banker, stockbroker or system management analyst. It is the height of folly to expect judges intelligently to review 5,000 page records addressing the intricacies of a public utility operation. It is not the function of a judge to act as a super board, or with the zeal of a pedantic schoolmaster substituting its judgment for that of the administrator.”

But a recent article dated June 10, Harvard Law Review, casts a critical eye of import, very apt in our midst too.

“Very few judges have degrees in neuroscience, experience with complex financial transactions, or skill with deciphering statistical methodology. Yet questions involving complicated issues like these are increasingly landing on the desks of American judges. The US Supreme Court, for example, has recently discussed at length the effect of video games on a child’s brain development, molecular biology and the patentability of genetic information), and studies from sociologists claiming that affirmative action both does and does not stigmatise minority students. How is a generalist judge supposed to answer these complicated - and often unknowable - questions of fact?”

The article then hits upon an innovative solution that has been crafted to aid and assist the courts with “specialised domain knowledge” which the courts need to be apprised of before they can “satisfactorily” resolve the legal dispute. “… there is a systematic way to sort the ‘good’ amici experts from the ‘bad’ ones - a way to provide expertise when needed, but to ensure that such experts truly merit that label. Across the Atlantic, some clever legal thinkers have come up with one such strategy. P.R.I.M.E. Finance, established in 2012, is a Dutch non-profit organisation whose name stands for ‘Panel of Recognised International Market Experts in Finance’. The goal of P.R.I.M.E. Finance is to ‘help resolve, and to assist judicial systems in the resolution of, disputes concerning complex financial transactions’.”

This innovative pilot programme was born out of necessity. Following the 2008 financial crisis, financial litigation was increasing steadily, and lawsuits were being brought more globally — no longer just in New York or London. Courts around the world — facing what some called a “tsunami” of financial cases — were reaching different results with very similar facts.

This led to “an immense black hole of legal uncertainty” and one with tremendous consequences in a global economy where rule stability is often the key to growth.

Even while there is a huge debate, in the context of the triple talaq imbroglio, whether the landmark judgment of the Bombay High Court in Narasu Appa Mali’s case - a judgment of a Division Bench of   Chief Justice MC Chagla and Justice Gajendragadkar, unparalleled duo of knowledge and erudition - which has stood the test of time for over 65 years that “personal laws” cannot be struck down as they do not partake the character of “laws in force” as used in Article 13 of the Constitution of India – as being beyond judicial review – and the change lay in the legislative province - the debate on “domain knowledge” of judges in matters of theology has not received the attention it deserved.

Just as there is a practice before the US Supreme Court to receive amicus briefs from “experts” in the relevant field, our Supreme Court could have embraced the route. 

And the recent Harvard Law Review piece, cited above, does question even the “authenticity” of such amici briefs - for they are received without taking them through the adversarial route, which is the normal practice. That is why it recommends entities such a P.R.I.M.E.

Has the time come for our courts too, to look for such Prime solutions? You be the judge.

Last updated: July 04, 2017 | 19:42
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