This is a continuation of an article written by Shantanu Narvane which you can find here.
In this article, I apply the three approaches on judicial precedent that Shantanu laid down in his post to Shayara Bano v. Union of India [The triple talaq case] and also critically examine each of the three approaches.
The Triple Talaq case
A five judge bench of J. Nariman, J. Lalit, J. Joseph, CJ. Khehar and J. Nazeer was constituted to consider the matter and in a 3:2 split, the Supreme Court held that triple talaq was legally invalid. J. Nariman, J. Lalit and J. Joseph were in the majority, whereas CJ. Khehar and J. Nazeer dissented.
Nariman and J. Lalit found that the Shariat Application Act, 1937 [‘the Act’] codified triple talaq and since it was a statute it could be tested under constitutional grounds. They found the practice to be in contravention of Art. 14 of the Constitution. On the other hand, the other three disagreed and found that the Act does not codify triple talaq. Justice Joseph then held that the practice of triple talaq is not even a part of uncodified Muslim law, whereas CJ. Khehar and J. Nazeer found that triple talaq was part of uncodified Muslim law and could not be tested on constitutional grounds.
The two figures below simplify things. As we can see, while there is a clear 3:2 split as far as the decision is considered. However, there is no consistency in the reasoning, with Justice Joseph agreeing with the dissenting judges on whether triple talaq is codified. This is similar to the scenario that Shantanu describes in his post.
Let us now consider the three approaches given in Shantanu’s post: (i) Shantanu’s approach (ii) HM Seervai’s approach and (iii) Lord Denning’s approach
Shantanu (and some people as per the comments) suggests that we must separate the conclusion and the reasoning. If we applied this to the triple talaq case, it would mean that triple talaq is legally invalid (conclusion) and that triple talaq is not codified (the reasoning) because both of these emerge from a majority of the judges as the figures above show. The original post does not explain why this approach is problematic.
If we were to accept that the correct reasoning is that triple talaq is not codified, since this has been endorsed by a majority it means that the opposite reasoning (i.e. triple talaq is codified) is wrong. If that is the case, then a conclusion based on the wrong reasoning cannot be considered to be correct. It leads to a situation that is not reconcilable. It is illogical to say that one hand we accept a certain reasoning to be wrong, but on the other hand accept the conclusion flowing from that reasoning to be correct. Thus, I do not think that this approach is appropriate.
HM Seervai’s Approach
HM Seervai suggests that we follow a majority of majority approach i.e. the reasoning followed by a majority of the majority judges is the ratio of the case. If we applied this to the tiple talaq case, it would mean that the reasoning relied upon by J. Nariman and J. Lalit i.e. triple talaq is codified, would be the correct position of law. This, as has been pointed out, would lead to a situation where a numerical minority of judges would essentially decide the law. In fact, Lord Stephenson in Harper v. National Coal Board [“Harper”] said:
“I do not think that we can treat the reasoning of the majority of the majority….as the ratio decidendi of the House. It is the ratio given by only two out of five.”
Furthermore, such an approach also goes against Art. 145(5) of the Constitution, according to which no judgement “shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case.” Thus, even this approach is not appropriate.
Lord Denning’s Approach
Lord Denning in Harper had to interpret the ratio of Smith v. Central Asbestos Co. Ltd. [“Smith”]. He held that:
“…if we cannot discover the reasoning on which the majority based their decision, we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.” [emphasis supplied]
Shantanu, in his post writes that Lord Denning “does not rely on Smith as binding precedent.” As a result, some consider this approach problematic (as some of the comments show), because this has been interpreted as if a case which does not have a consistent reasoning in the majority, would not be binding at all. This, in my opinion, is not what Lord Denning actually laid down in Harper.
In Harper, both the Lords agreed that there was no ratio discernible from Smith. While they were not bound by any reasoning of the Court in Smith, they were still bound by the decision. This is clearly laid down in what Lord Denning said:
“We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.” [emphasis supplied].
If we applied this to the triple talaq case, it would mean that subsequent judges would not be bound by the reasoning of the Supreme Court, but it would be bound by the final decision i.e. triple talaq is legally invalid. The concept of ratio decidendi is not appropriate for plurality opinions where a single reasoning cannot be culled out from all the judges in the majority. This does not however mean that stare decisis does not apply at all in such cases.
This distinction between the reasons elucidated in a case and its binding value was given by J. Chandrachud in Waman Rao v. Union of India (1981) 2 SCC 362:
“It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis.” [emphasis supplied]
Therefore, in my opinion, this is the correct approach to follow. However, there is no authority in India to back up the propositions laid down in Harper. J. Nariman and J. Kaul in Shanti Fragrances v. Union of India, requested the Chief Justice of India to constitute a bench to consider whether and to what extent the proposition laid down in Harper would guide us. There is a need for clarity on the rules of precedent and we can only hope that the present Chief Justice would constitute one to resolve the issues.