India: The case against triple talaq - Personal law must be subordinate to fundamental rights . . - Editorial in Livemint

livemint.com - May 16, 2017

The case against triple talaq

Personal law must be subordinate to fundamental rights and subjected to the test of constitutional validity

Editorial

“Can what is sinful in the eyes of God be lawful? If God considers it a sin, it can’t be legal. Can it be?” Chief Justice of India J.S. Khehar’s question on the second day of the Supreme Court (SC) case regarding the constitutional validity of triple talaq sums up the difficulties surrounding the contentious issue. Wading through the thicket of religious interpretation is a tricky task for any secular legal authority. More importantly, Khehar’s framing of a just law validated by religious belief points to the dangers inherent in blurring the boundaries between the two.

Triple talaq as it is practised in India—the husband saying “talaq” thrice to the wife in one go—must be addressed on multiple fronts. The same holds true for the associated practice of Nikah Halala—a divorced woman having to marry another man, consummate the marriage and have him divorce her before being able to remarry her first husband. The first front is that of constitutional protection—whether these practices are safeguarded under Article 25(1) of the Constitution, which guarantees the fundamental right to “profess, practice and propagate religion”. This is the approach the SC has adopted; it is examining if triple talaq forms an essential part of Islamic belief and practice.

That is venturing into tricky territory. On the face of it, there is substantial evidence that triple talaq is an innovation that has little to do with Quranic prescriptions. This is the argument made by the petitioners. It is buttressed by the text of the Quran as interpreted in the bulk of Islamic scholarship, as well as historical evidence and legal precedent. After all, a number of Islamic states, from Morocco and Algeria to Iran and Indonesia, have introduced modernizing legislation when it comes to divorce. And in multiple instances—A. Yousuf Rawther v. Sowramma, 1970, Kerala high court and Shamim Ara v. State Of UP And Ors, 2002, Supreme Court, for example—the courts have ruled against triple talaq as it is practised today.

The All India Muslim Personal Law Board, on the other hand, defends triple talaq as an integral part of Islamic law and, therefore, beyond the realm of the judiciary. Thus, the SC must in effect take a stand in a long-running global debate: Is Islam a “blueprint for a social order”, in Ernest Gellner’s words, or is there a distinction between Islamic—the religious—and Islamicate—associated cultural phenomena—as Marshall Hodgson suggested? The limits this imposes on the SC are apparent. If it concludes in the triple talaq case that the former holds and the practice is indeed an essential part of the religion in India, its hands are tied. It has admitted as much by saying that if it finds that triple talaq is fundamental to religion, it will not go into the issue of its constitutional validity.

This gives an undeserved sanctity to religious law. It is why addressing the issue on another front as well—placing Islamic or any other personal law in the context of constitutional liberalism rather than depending merely upon religious reform—is important. A number of the petitioners have argued that triple talaq violates their fundamental right to equality before the law, to non-discrimination on grounds of sex and to life and liberty. Indeed, Article 25(1) explicitly states that freedom of religion is subject to other fundamental rights. The Allahabad high court recently ruled so as well in the Shayara Bano case; she is also one of the SC petitioners.

The other argument against subjecting personal law to the constitutional validity test—that it is not a “law” as defined by Article 13 of the Constitution—has a precedent in the 1951 Bombay high court judgement in State Of Bombay v. Narasu Appa Mali. But as Gautam Bhatia has argued convincingly, this rests on far too narrow a reading of Article 13—one that can and must be overruled by the SC.

And that brings in the third front: the uniform civil code. Much of the opposition to the SC’s taking up the triple talaq issue stems from the fear that it is a back door for bringing in the uniform civil code. That would be the wrong way to go about it—but the goal is a worthy one. Arguments that this will stifle diversity and result in the imposition of Hindu laws are specious. As B.R. Ambedkar pointed out in the Constituent Assembly debates, uniform criminal laws and what amounts to a uniform civil code in the majority of civil law areas other than personal law already exist. They have not compromised religious freedom in any fashion. Nor is the need for a uniform civil code solely to do with Muslim personal law. Inequities exist in the other personal laws as well, from Hindu to Parsi.

The move to a uniform civil code will be a slow process and must be an inclusive, multi-stakeholder one. Prime Minister Narendra Modi has made conciliatory noises so far regarding the triple talaq case. But if he gives in to the temptation to use the issue for political advantage, it will make introducing the UCC debate in the public domain unviable for a good many years. Indeed, the wider political context—his administration’s failure to reign in gau rakshaks, or cow protection vigilantes, for instance—is already unhelpful.

Seven decades ago, the members of the Constituent Assembly chose the politically expedient path. The uniform civil code has been frozen as a directive principle of state policy since. If the ideal of a common law for all citizens in a secular republic—one that adheres to constitutional principles and ensures gender equality—is to be realized, the Centre will have to show both courage and statesmanship.