The Conflict of Judiciary and Executive in Shah Bano Case
THE CONFLICT OF JUDICIARY AND EXECUTIVE IN SHAH BANO CASE
- Harsh Bobade, Symbiosis Law School, Pune
Mohd. Ahmad Khan V/S Shah Bano Begum is a landmark lawsuit which has dealt with the problem of "Triple Talaq Verdict". This case is also mentioned as "Shah Bano Case". The lawsuit is regarded to be a milestone in the struggle of rights and freedom for the Muslim women while simultaneously unveiling the tussle between the judiciary and the executive and the need of Judicial Independence in India.
THE SHAH BANO CASE:
In 1932, Shah Bano, a Muslim woman, was married to Mohammed Ahmad Khan and had five children from the marriage. After 14 years, Khan married another woman and after years of living with both wives, he later divorced Shah Bano who at the time was aged 62. In April 1978, Khan stopped giving her the promised maintenance following which Shah Bano filed a criminal suit under Section 125 of CrPC asking for maintenance of Rs. 500 as she had no means to support herself. At around this time, Khan gave triple talaq to Shah Bano and renounced his obligations in accordance of Shariat Laws. After the High Court Ordered in favor of Shah bano, Khan filed a petition to appeal before the Supreme Court claiming that he had given triple talaq and had a second marriage which is also permitted under Islamic Law.
Supreme Court opined that "there is no conflict between the provisions of section 125 and those of the Muslim Personal Law on the question of the Muslim husband\'s obligation to provide maintenance for a divorced wife who is unable to maintain herself.". The Supreme Court invoked Section 125 of Code of Criminal Procedure and stated its applicability to everyone regardless of caste, creed, or religion. The judgement upheld the lower court decision and Khan was directed to give maintenance money to Shah Bano. [1]
The Judgement however elicited a protest from many sections of Muslim Society who believed the judgement to attack on their religion and their right to their own religious personal laws.
In 1986, the Parliament of India diluted the supreme court judgement by enacting The Muslim Women (Protection of Rights on Divorce) Act, 1986 which restricted the liability of husband to pay maintenance for the period of the iddat i.e., 90 days only which was in stark contrast with the judgement and its interpretation of Section 125 of CrPC.
THE CONFLICT OF JUDICIARY AND EXECUTIVE:
The conflict between the two institutions occurred due to the multiple factors they had to account for while implementing their respective decisions. At the time, there were fundamental issues with rights Muslim women held in accordance with their personal laws and The Supreme Court denoting the lack of an Uniform Civil Code, in its judgment applied a criminal law which is applicable to all the citizens regardless of caste,and religion in contradiction to a which case also dealt with Shariat laws which comes under Muslim Personal Laws. This was considered a breach of religious freedom by many orthodox sections of Muslim societies and the Muslim Clergy. The Parliament at the time however allegedly passed The Muslim Women (Protection of Rights on Divorce) Act, 1986 which diluted the supreme court judgment and curbing the maintenance rights given to the muslim women for appeasing the Muslim Clergy and preventing a defeat in the next general elections. This conflict of interest between the two institution led to the legislative overriding of the Supreme Court Judgement which put the Judiciary’s Legitimacy under scrutiny.[2]
AFTERMATH:
The Shah Bano case had created several interpretation issues of section 125-128 of CrPC in contravention to Muslim Personal Laws which was highlighted with the lack of Uniform Civil Code which the Apex Court itself signified in its judgement. In 2001, the constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act 1986 was challenged in the case of Daniel Latif v. Union of India [3]. The Supreme Court however, interpreted the law in such a way in which it upheld the Shah Bano Case which was overturned by the said act while also preserving the legitimacy of Muslim Personal Laws by not declaring the act Unconstitutional. This decision however illustrated how the supreme court considers the communal tension in its decision making process. The decision however failed into taking in the account as to how it would deal with future needs of divorced Muslim women.[4]
SHAH BANO AND JUDICIAL INDEPENDENCE IN INDIA:
Judicial Independence primarily means the independence of the judiciary from the executive and the legislature. However recent developments has also included the independent approach of an individual judge while exercising its power as part of Judicial Independence. The Independence of Judiciary is the sine qua non of democracy. The purpose of democracy is not severed merely by getting laws enacted by democratically constituted bodies but it also serves as a machinery for just interpretation of laws. With increasing volume of laws with inclusion of personal laws and their growing complexity, judicial independence is of considerable value.
The need for Judicial Independence in India was propounded by the constituent assembly in 1947. Dr. B. R. Ambedkar recognised the need of judicial independence while hearing the arguments on amendments proposed for procedure of appointment of Judges to the Supreme Court of India, stating “With regard to this matter, I quite agree that the point raised is of the greatest importance. There can be no difference of opinion in the House that our judiciary must both be independent of the executive and must also be competent in itself.” [5]
The constitution provides for the parliamentary form of government which lacks strict separation between the executive and the legislature but maintains clear separation between them and the judiciary. The Indian Constitution under article 50 also directs the state to separate the judiciary from the executive in the public services of the State.
The Shah Bano Case however was one of the sever blows to the Independence of Judiciary in India. If an Apex Court Judgement can be overturned by subsequent legislature, it undermines the judicial powers, the validity and the implementation of its judgements and paves way for future instances of Legislative Overriding of Judgements. This however is kept in check by Judicial Review powers which was first recognized in the Kesavananda Bharti case.6
However, The Supreme Court however finally in 2018 cleared the ambiguity in the The State of Karnataka v. Karnataka Pawn Brokers Assn. & Ors [7] stating “The Legislature cannot set at naught the judgments which have been pronounced by amending the law not for the purpose of making corrections or removing anomalies but to bring in new provisions which did not exist earlier. The legislature may have the power to remove the basis or foundation of the judicial pronouncement but the legislature cannot overturn or set aside the judgment, that too retrospectively by introducing a new provision. The legislature is bound by the mandamus issued by the court”. This effectively held that the legislature cannot overrule judgments by amending a law retrospectively which would violate the separation of power among the three institutions.
CONCLUSION:
Even though the Supreme Court took a bold decision in Shah Bano case, the subsequent missteps by the judiciary did undermine the judgment’s validity especially when the judgement was overturned by the legislature. Even though the conflict was resolved by neither of the parties taking any radical steps, the subsequent restrained shown by the judiciary when deciding the constitutional validity of The Muslim Women (Protection of Rights on Divorce) Act, 1986 to prevent further communal tension shows the hesitancy of the Supreme Court when dealing with Personal Laws. Regardless, the case did highlight the tussle between the judiciary and the executive and the need of Judicial Independence in regards with the legislative overriding power of the parliament which was cleared in the 2018 Judgement.
REFERENCES
1. Mohd. Ahmed Khan vs Shah Bano Begum And Ors, [1985] AIR 945.
2. Shekhar Gupta, Inderjit Badhwar, Farzand Ahmed, ‘Shah Bano judgement renders Muslims a troubled community, torn by an internal rift’, (India Today, 16January, 2014), <https://www.indiatoday.in/magazine/cover-story/story/19860131-shah-bano-judgement-renders-muslims-a-troubled-community-torn-by-an-internal-rift-800516-1986-01-31> , Accessed on 13th April, 2020.
3. Danial Latifi & Anr vs Union Of India, [2001] AIRSC3958
4. Shodhganga “Aftermath Of Shah Bano Case: An AnalyticalStudy.’<http://shodhganga.inflibnet.ac.in/jspui/bitstream/10603/129050/17/09_chapter%204.pdf/>, Accessed on 13th April, 2020.
5. Constituent Assembly Debates, 24 May, 1949 Part I
6. Kesavananda Bharati v. State of Kerala, [1973] AIR SC 1461
7. The State of Karnataka v. Karnataka Pawn Brokers Assn. & Ors , [2018] AIR SC1441
