Religion and Personal Law in Secular India: A Call to Judgment

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Talaq or male- initiated divorce can take place either through a single pronouncement of talaq followed by no sexual contact for three months talaq ahasan ; three pronouncements over a period of three months with no sexual contact talaq hasan ; or a single irrevocable pronouncement or three pronouncements at one go talaq al-bidah. The third mode of male-initiated divorce — popularly known as triple talaq and the mode under challenge in this case — is regarded as an innovation and corruption of the original idea of divorce in Islam. Consequently, it is not recognized by the Shia schools of jurisprudence Ithna Ashari and Fatimid.

These intra-community differences notwithstanding, triple talaq was deemed valid by state law until recently, based on colonial period precedents9 that in turn relied on English translations of texts on Hanafi law10 and later textbooks on Anglo-Muhammadan law Though women also have the right to initiate divorce without citing reasons khula , it is seldom exercised for the same reason that women across religious groups disfavor divorce in India: marriage signifies economic dependency for a large number of women, and divorce makes them economically worse off.

Divorce is often conveyed over telephone, Skype, SMS, letters or through a third party,13 which raise the question of proof in subsequent legal disputes. To get around this problem, some men convey it by sending their wives letters, talaqnama divorce deed or fatwa legal advice obtained from a cleric validating the divorce, through registered post that requires the recipient to sign, thus creating evidence of communication.


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Some men also place notices in local newspapers as the communication itself, or as further evidence to bolster one of the above ways. He concluded that talaq was valid only if it was for a reasonable cause, and preceded by attempts at reconciliation. Over the next two decades, some high court benches held triple talaq to be invalid drawing on these two judgements, while other benches continued to uphold the colonial precedents. The bench answered it in the negative, and while doing so entered into a discussion on what constituted a valid talaq.

Appellate court decisions however have had limited impact on the practice, since Muslim personal law is administered mostly by non-state actors. Both entities argued that in view of precedents holding personal law to be a matter of state policy and outside the scope of fundamental rights, the issues raised by the PIL were beyond the jurisdiction of the Court.

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Over time judges have dispensed with the requirement of such public interest petitioners and have begun initiating and steering cases by themselves. A talaqnama was sent to Shayara that informed her that she had been divorced. She sought invalidation of this divorce on the ground that it violated Articles 14 equality before law and equal protection of law , 15 non-discrimination , 21 life with dignity and 25 freedom of conscience and religion of the Constitution of India. It nonetheless indicated the main anxiety of the Board. The lawyer representing Shayara was Balaji Srinivasan, who had appeared for the respondent in Prakash v Phulavati n They argued that not only triple talaq, but the very sex-asymmetrical and extra-judicial nature of Muslim divorce were in violation of the Constitution, for giving unequal power of divorce to men, and delegating a civic function to non-state actors, respectively.

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Senior Advocate Salman Khurshid also intervened, wherein he argued that Muslim personal law was immune from a constitutional challenge, but triple talaq could be regulated by applying the correct Islamic position. On file with the author. The case was heard on six occasions between 11 and 19 May , during the vacation of the Court, and the judgment was delivered on 22 August The Judgment The five judges delivered three opinions, that pursue different lines of reasoning.

Chief Justice Khehar delivered one opinion the minority verdict for himself and Justice Nazeer.

Uniform civil code India debate - Muslim personal laws

Justice Nariman delivered one opinion for himself and Justice Lalit, and which diverged from the first one on every issue. Justice Joseph delivered the third opinion that took an entirely different approach, agreeing with the other two on certain issues, and differing on certain others. Below, I will evaluate each opinion separately, as well as mark their points of convergence and divergence.

Triple Talaq as Religious Faith Justice Khehar refuses to simply affirm the high court judgments that had invalidated triple talaq. He notes that those benches had done so on the view that triple talaq was disapproved of by the Hadiths, i. One of the main contentions of the petitioner, as well as some of the interveners, was that triple talaq derived its legal validity from the Act, and therefore was subject to the fundamental rights.

What this argument fails to consider is the source of authority of the state courts to enforce non-state law, as in the case of Muslim personal law in India. But keeping this inconsistency aside, there is a fundamental misunderstanding about Article 25 in deploying it in this manner. To begin with, the text of Article 25 1 makes it clear that it concerns persons and not groups or their laws.

In the Indian framework of religious freedom, whether a religious practice is constitutionally protected or not is determined not with reference 55 ibid []-[]. Critics have argued that it allows judges to become theologians or even religious reformers. Not in India. Religious freedom in India, it has been said, is the freedom to practice religion as it ought to be, rather than religion as it is. But though he cites previous judgments on the essential religious practices doctrine62, his treatment of the issue does not reveal any argument refuting the judge-centric model of religious freedom.

His starting point is the narrow question of whether the Act could be said to authorize triple talaq. Nariman notes that Section 2 of the Act67 not only performs the negative function of abrogating the application of customary law to Muslims — as argued by the AIMPLB and the Jamiat, and accepted by Khehar68 — but it also performs a positive function of stating what the applicable law is.

Next, Nariman proceeds to examine whether the Act violated Article 14 of the Constitution,72 through its validation of triple talaq. Through a detailed discussion of precedents, Nariman shows that a law or a governmental action could be struck down for violating Article 14, not only if it entailed an unreasonable classification — the test traditionally used by courts — but also, if it was found to be arbitrary 70 ibid [47]. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.

From the commentaries by Mulla and Fyzee and their affirmation by Shamim Ara, he concludes that triple talaq is disapproved of by the Hadiths, because it takes effect instantly and irrevocably, without offering a chance of reconciliation. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 …77 74 Shayara Bano n 1 [87].

This begs a question: religion may disfavor a capricious decision to divorce because of the value that it attaches to marriage and marital stability. But does the same criterion also hold for making such a decision constitutionally impermissible? This leads us to a problem with the arbitrariness doctrine in general, identified by a number of scholars.

Thus, Tarunabh Khaitan notes An inquiry into the reasonableness of State action under the new doctrine no longer requires a prior demonstration that some form of inequality in involved, as was the case with the old classification doctrine. Justice Kurian Joseph manages to sidestep this predicament, as we will see in the next section. On the question of the Act, he sides with Khehar. Joseph reasons that the Act, having declared the Shariat to be the law applicable to Muslims, had essentially left it to judges to find out what the Shariat said on any issue.

In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently, it violates the Shariat. Thus, Joseph disagrees with Khehar on two more propositions: one, that Shamim Ara dealt with the valid procedure for talaq to decide a maintenance case, but did not constitute a binding precedent on triple talaq itself,85 and two, that triple talaq was integral to the religious faith of the Muslims.

He supports this by noting that between and , a number of high court benches had relied on Shamim Ara to invalidate triple talaq. But although Joseph disclaims any judicial role in harmonizing the interests of religion and constitutional rights,91 what must be really emphasized is that his opinion in this case exemplifies just such a role. Unlike a lot of other actors in this case who wanted to prohibit triple talaq, the route taken by Joseph achieved that outcome, but without invoking constitutional rights, secularism or the uniform civil code.

Instead, it was based entirely on widely accepted commentaries on Muslim law and prior judgments that were also based on these commentaries — a number of them authored by Muslim judges. The Fate of Secularism in India. The Hindu nationalists who later came to populate the Bharatiya Janata Party BJP and its various ideological affiliates have consistently harbored a starkly different view; they envision India as a majoritarian nation-state, not a multicultural one.

To understand these dynamics, it is necessary to define basic concepts and review relevant history. This is because political entrepreneurs who promote ethnoreligious identities—especially Hindu nationalist ideologues—have created much confusion around the notion of secularism, claiming that its proponents have endeavored to make the state hostile or indifferent to religion. That was certainly not the intention of the architects of modern India, whose enemy was not religion, but communalism. Nationalist forces aside, all is not well with Indian secularism.

In parallel, the judiciary—especially at the lower levels—has adopted a majoritarian undertone on certain controversial cases. At the time, there were two other competing visions for how the state should handle religion, namely Hindu nationalism and Hindu traditionalism. By contrast, Hindu traditionalists were less interested in such a stark ethnic view and paid more attention to cultural features, like the defense of traditional Hindu or Ayurveda holistic medicine and the linguistic preeminence of Hindi over Urdu, which many Indians regarded as a foreign language.

Nehru believed that Indian secularism was vital because he had seen firsthand how Muslim communalism had resulted in the division of the country into India and Pakistan in For him, the Partition of the subcontinent had not only cut Indian territory in two but had also divided a civilization. Although it has been unevenly enforced, Section of the Representation of the People Act of , the law that guides the conduct of elections in India, forbids politicians from campaigning on religious themes for this reason.

Notably, Nehru fought against all forms of communalism whether Hindu, Muslim, or Sikh , not against religion per se. That obviously is not correct. What it means is that it is a state which honors all faiths equally and gives them equal opportunities. Indeed, as political theorist Rajeev Bhargava has argued, Indian secularism has not meant that the government abstains from intervening in religious matters.

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For example, the state reformed Hindu personal laws according to a series of new Hindu code bills without imposing similar changes on religious minorities. Muslims, for instance, were allowed to retain sharia law. Similarly, the Indian state subsidizes different religious pilgrimages albeit not necessarily to the same extent , including Sikhs going to Pakistan, Hindus visiting Amarnath Cave in Jammu and Kashmir, and Muslims going to Mecca for the hajj.

The state also contributes financially to major religious celebrations such as the Hindu Kumbha Mela; the festivities in Allahabad, Uttar Pradesh, cost 1. Starting in the s, Indian secularism came under more severe strain. The Congress Party began opportunistically pandering to one religious community after another more overtly, and Indian secularism was deeply damaged as a result. To begin with, prime minister Indira Gandhi sought to capitalize on religious differences in several blatantly cynical ways.

In the course of handling the divisive Shah Bano case, he sought to invoke sharia as the template for Muslim communal law in India as a way to mollify Indian Muslims. Savarkar in Hindutva: Who Is a Hindu? While the Hindu Mahasabha, the right wing of the Congress Party until Savarkar transformed it into a separate party in , engaged in electoral politics even prior to independence, the RSS chose to focus on developing a dense network of local branches and creating front organizations, including a student union and a labor union. In , the RSS decided it could no longer remain disengaged from electoral politics, so it helped establish a political party, the Bharatiya Jana Sangh BJS , in conjunction with former Hindu Mahasabha leaders.

Exploiting the missteps of the Congress Party, Hindu nationalists began accusing it of playing vote bank politics with Muslims. But, at the same time, the RSS played the same card with Hindu voters. Hindu nationalist political entrepreneurs decided to turn the majority community into a vote bank when secular leaders of the Janata Party accused ex-Jana Sanghis of paying allegiance to the RSS.

Once Hindus get united, the government would start caring for them also. The launch of the Ayodhya movement must be understood in light of this speech. The campaign around a prospective Ram mandir temple in resulted in a wave of riots that polarized voters along religious lines. Such polarization helped the BJP win the state elections in Uttar Pradesh where, in , activists tore the Babri Masjid to the ground to make way for a Ram temple. A handful of years after the Ayodhya movement, the BJP briefly rose to power in New Delhi in and won elections again in On both occasions, however, the party was at the helm of a larger coalition, the National Democratic Alliance NDA , whose other members did not all share a Hindu nationalist agenda.

The BJP lost the general elections, and the Congress-led coalition that took over from the NDA, the United Progressive Alliance UPA , returned to a more secular brand of politics, as evident from the appointment of the Sachar Committee to assess the socioeconomic conditions of the Muslim community, 15 which the report demonstrated was pitiable. In , for the first time, the BJP won an absolute majority in the lower house of the Indian parliament, the Lok Sabha.

Having tasted political power on the national stage for the first time in a decade, the party chose not to resuscitate the three controversial issues mentioned above, but it did pursue actions intended to marginalize Muslims through unofficial channels. For instance, groups of Hindu vigilantes tried to discipline minorities Muslims and Christians with the blessing of the state apparatus using a form of cultural policing that had previously been restricted to BJP-ruled states.

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But it has also spread beyond them. Such Hindu vigilantism has manifested in a variety of ways. Since , vigilante groups have targeted Muslims accused of seducing and marrying young Hindu women to convert them, a phenomenon some have labeled love jihad. This campaign was followed by the ghar wapsi or homecoming movement, which aimed to re convert Muslims and Christians to the Hindu faith as a reaction to Muslim and Christian proselytism. The issue of cow protection was an even more effective way of organizing activists, who formed a new movement called Gau Raksha Dal. This militia patrolled highways to ensure that Muslims were not taking cows to slaughterhouses; the group was related to the Sangh Parivar and functioned much like the Bajrang Dal—a powerful militia that was created in during the heyday of the Ayodhya movement.

All of the applicants for these posts whose files have been made public are gau rakshaks from various militias that regularly intercept alleged traffickers and burn their cargo.

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The cultural policing of Hindu vigilante groups, who pay allegiance to the RSS, shows that India has, to some extent, become a de facto Hindu rashtra. The influence of the Sangh Parivar at the grassroots level grows with the tacit support of the BJP-dominated state apparatus: while Hindutva forces may indulge in illegal actions, they are often viewed as the legitimate embodiment of majoritarian rule.

Since the election, surging Hindu nationalism has put the Congress Party—and secularism, more generally—on the back foot. The growing consensus seems to be that Hindu nationalism has gained traction at the expense of secularism to the point of being viewed as the only legitimate stance an electorally successful nationwide political party can take. At first glance, the Congress Party seems to be fielding few Muslim candidates in elections. In the general election, it nominated only twenty-seven Muslim candidates for the Lok Sabha elections, a paltry 5.

But this underrepresentation of Muslim candidates needs to be qualified at the state level: the Congress Party has nominated very few Muslims to vie for state assembly seats in critical states such as Delhi, Gujarat, Haryana, Karnataka, Madhya Pradesh, Maharashtra, Odisha, Rajasthan, and Tamil Nadu see table 1.

But in other states, the proportion of Congress-affiliated Muslim candidates approximated or exceeded the proportion of Muslims in the general population, including in Assam 23 percent , Bihar 24 percent , Kerala 16 percent , Uttar Pradesh 19 percent , and West Bengal 33 percent. In all these states, with the exception of Assam, the percentage of Muslim candidates fielded by the Congress Party has increased recently. In fact, it is only in two-party states where the Congress Party faces off against the BJP that the party seems to have made a strategic decision to nominate fewer Muslims on the grounds that the minority community has no other choice but to vote for the Congress Party if it hopes to defeat the BJP.

The underrepresentation of Muslims among Congress candidates needs to be qualified in at least two other ways. To date, the party has not moved decisively to implement the Sachar Committee report, at least partially due to pressure emanating from the Sangh Parivar. A second benchmark is the actual well-being of Muslim citizens.

In many BJP-ruled states, minorities have felt threatened because of the slayings of Muslims accused of mistreating cows and, to a lesser extent, the harassment of Christian priests or nuns.

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