—Menaka Guruswamy, Fellow, Wissenschaftskolleg zu Berlin and Advocate, Supreme Court of India
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]
35 year old Shayara Bano, a mother of three teenagers, who had been married for 15 years, was unilaterally divorced by her husband Rizwan when she was visiting her parents in April 2015. She has not been allowed to see her children since that time. The only evidence of the divorce was the note that she received from her husband. Shayara’s was hardly the happy marriage, forced to have multiple abortions, beaten routinely, sequestered from her sister who lived close by and always threatened with divorce. She is one among many petitioners in a court case that has captured India’s political, constitutional and social imagination – the constitutional challenge of triple talaq. The practice of ‘triple talaq’ is the unilateral ability of a Muslim man to divorce his wife by thrice uttering the words ‘talaq’ (or divorce), or by sending it as a message even by whatsapp or email or on facebook or through a letter. Social media apparently renders regressive cultural practices, even easier to perform!
Fascinatingly enough, Shayara’s own petition joins a case that a smaller bench of two judges of India’s Supreme Court had initiated suo-motu, and asked that it be heard by a larger constitutional bench of five judges. Therefore, the Supreme Court solicited petitions, and heard arguments over a few days of its summer vacation. Triple Talaq has even become an electoral issue for India’s ruling Hindu Nationalist Bharatiya Janata Party (BJP), making it clear that religion is as political as politics itself.
All constitutional litigation is complex, but in India when faith confronts the constitution, it’s even more so- for judges trained in secular law must reimagine themselves as theocratic experts. Why? The court created this problem for itself. India’s Supreme Court has long adopted the jurisprudential position that a practice that is an ‘essential part of a religion’ is presumed to be constitutional – whether in fact it violates constitutional values such as equality, dignity, fraternity, expression and life, is a secondary inquiry, if at all. This is especially significant in a post-colonial constitutional democracy that retained the system of ‘personal laws’ – where marriage, divorce, inheritance and succession are governed by religious law. Such ‘religious’ law is a codified or uncodified version of a certain interpretation of religious traditions, usually favored by powerful men.
It is undeniable that triple-talaq degrades Muslim women and further disempowers this slice of Indian society that has already has low literacy and socio-economic markers. Yet, it was defended in court as being an ‘essential part of Islam’ – by a prominent non-governmental organization, the mostly all-male, deeply conservative Muslim Personal Law Board (MLPB). Contrary to this position Muslim women — represented through organisations like the Bharatiya Muslim Mahila Andolan (Indian Muslim Women’s Movement) and individual petitioners like Shayara — argued that the practice was unconstitutional.
Even Islamic nations like Bangladesh, Turkey, Iraq, Tunisia, Algeria, Pakistan and Egypt ban the practice of Triple Talaq and the Quran itself does not provide for it. India is home to around 172 million Muslims or 14.2 percent of the country’s population, with around 82.3 million Muslim women, and hence this is an important constitutional issue that impacts a large section of its citizens.
India’s many journeys include those as an ancient multi-layered civilization, as a colony and recently as a vibrant constitutional democracy. Pre-constitutional India was marked by a colonial interpretation of religious traditions, a matrix of personal laws for different religions including Islam and Hinduism, and colonial-law making being contested by nationalist politics. Religious practices prior to colonization included the caste system, untouchability, and limited personhood for women. Reformist movements within religions emerged that were then overshadowed by nationalist politics fiercely protective of all things ‘Indian’ including the desire to insulate Indian women from any colonizer initiated legal reform.
In colonial India, the apex of all courts was the Britain based Privy Council. Demands were made in the 1900s for an India based Supreme Court that would hear appeals from the various High Courts. Ironically one of the many reasons given for such a court was that the Privy Council judges were unfamiliar with the nuances of Hindu and Muslim law. A Federal Court was established in India in 1935. In 1937, the Muslim Personal Law Shariat Application Act made such personal law applicable to Muslims. The question of personal laws haunted India long after. The Constituent Assembly chose to ‘defer’ controversial identity based questions like that of a Uniform Civil Code (see Hanna Lerner) – presumably to be solved by future generations. Hence, a Uniform Civil Code (or a common family law irrespective of religion) was enshrined only as a lesser non-justiciable Directive Principle of State Policy in India’s Constitution reminding future generations that they ‘must endeavor to achieve it’.
But, India’s founding provides some clues as to how this puzzle of religious freedom and constitutional values is meant to be approached. First, the Constituent Assembly itself eschewed any state religion and chose the model of a secular state, unlike its partitioned sibling Pakistan. Second, the Constituent Assembly did proceed with two formidable remedial actions against the worst of Hindu society – the practice of untouchability was rendered unconstitutional and punishable by law; and a remedial project was constitutionally initiated – of ‘reservation’ or a setting aside of political constituencies, governmental posts and seats in educational institutions for historically discriminated scheduled castes and scheduled tribes. This has been extended to ‘other backward castes’, and such reservation has long been overseen by the courts. That the caste system was an essential part of Hinduism never deterred the framers or the courts from proscribing it, and remedying the harm it has long caused.
Yet, the court has always been strangely reticent on other matters of religion. For instance, the court has tiptoed around cow slaughter and beef bans, that upper caste Hindus have traditionally endorsed. What the brutally violent Hindu nationalist Gau Rakshaks (Cow Vigilante) groups and the All Indian Muslim Personal Law Board have in common is that they are extra-legal, self-created associations that favor regressive interpretations of religious practice through a disdain for human dignity.
But, the Triple Talaq case is not the only one where the court has engaged questions of faith- In a previous column, I have discussed the Ayodhya temple-mosque case where Hindu nationalists, including prominent members of the ruling BJP broke down a long standing mosque to build a temple- arguing that it was a matter of faith
The only real way for the court to engage constitutionally untenable practices is to stick to what they know best: robust constitutional interpretations of equality, dignity, freedom and rule of law. And not look to interpretations of religious faith. For such a jurisprudential choice reduces the court to a secular-theocratic adjudicator. In Triple Talaq the choice then is simple – it is a practice then is opposed to women’s equality, their right to life and dignity and hence is unconstitutional. Not only have Muslim women made their views clear in court, but Indian’s foundational values warrant such an interpretation. It would also give the apex court a clear constitutional solution in all cases where supposed faith contradicts constitutional tenets of freedom and rule of law. Those cases may pertain to divorces or temples or lynching or eating habits. For the Indian Constitution does not permit practices of degradation or rage.
Suggested citation: Menaka Guruswamy, A Secular Theocratic Constitutional Court? Int’l J. Const. L. Blog, May 31, 2017, at: http://www.iconnectblog.com/2017/05/a-secular-theocratic-constitutional-court-i-connect-column/