On triple talaq, court must say: Religious practice cannot trump modern constitutional morality

Underlying the “triple talaq” questions are deeper issues about the nature of constitutional law in India.

Written by Pratap Bhanu Mehta | Updated: May 18, 2017 8:36 am
Triple Talaq, Supreme Court, SC Triple Talaq, Mukul Rohatgi, Kapil Sibal, Islam, Muslims, Muslim community, polygamy, nikah halala, AIMPLB, triple talaq news, india news, indian express news The court has a wonderful opportunity to undo this constitutional nonsense of Triple Talaq

The “triple talaq” hearing is an opportunity for the Supreme Court to finally remove some jurisprudential cobwebs that have enveloped constitutional secularism in India. It is an open question whether it will rise to the occasion or whether it will, as on previous occasions, simply fudge its way to a narrow ruling. Underlying the “triple talaq” questions are deeper issues about the nature of constitutional law in India. There are two claims that lie in the backdrop of this case that have caused a great deal of judicial confusion over the years. They have also produced deep distortions in our politics.

The first claim, very simply put, is over the constitutionality of personal laws. It is truly extraordinary that even after 70 years of Independence, thinking on this basic question remains confused. The source of mischief is a 1952 judgment in State of Bombay v Narasu Appa Mali, which, strangely enough, argued that personal laws do not count as “laws in force” under Article 13, and hence, are not subject to the test of constitutional validity. Different high courts tried at various points to overrule this, but the Supreme Court has let this strangest of claims stand.

This has had disastrous consequences for law and liberty. First, it rests on a bizarre understanding of what law is. On this point, Justice V.R. Krishna Iyer was right. It is odd not to treat personal laws as “laws.” He wrote, “Personal law is law by virtue of the sanction of the sovereign behind it.” Second, this doctrine seems to enshrine a law that is higher than the constitution. For, in effect, it says that there is a body of law that is exempt from constitutional scrutiny. One can only speculate on the reasons the Supreme Court has upheld this strange idea for 70 years.

I suspect it is confused between two different propositions. It may not want to rule outright that personal laws are unconstitutional. But surely, it does not follow from this fact that they should not be subject to constitutional scrutiny. Personal law, like the Ninth Schedule, cannot be a dark space, where we cannot shine constitutional light. Third, this doctrine gives rise to serious misunderstandings about the sites of justice. As an illustration, as Flavia Agnes pointed out, there is a Delhi High Court case from 1984, Harvinder Kaur vs Harmander Singh Choudhry. The judgment argued that “introduction of constitutional law in the home is most inappropriate. It is like introducing a bull in a China shop. It will prove to be a ruthless destroyer of the marriage institution and all that it stands for. In the privacy of the home and married life, neither Article 21, nor 14, have any place.”

In a nutshell, this argument can tell you how regressive the legacy of Narasu Appa is. Again, it is true that the meaning of the “home” and marriage are not exhausted by legal principles. But it does not follow that the legal structuring of the rights of individuals in the home is not subject to constitutional scrutiny. In fact, the home, and more specifically gender relations, are the sites of the most epic, intimate and consequential struggles for equality and liberty. Finally, the implication of Narasu Appa was to enshrine faith above constitution. There is a paradox here because, on the one hand, personal laws are often construed as not being religious; but they effectively provide a faith-based shield against constitutional scrutiny. Once this mischief is allowed, all kinds of faith-based arguments trump justice.

The court has a wonderful opportunity to undo this constitutional nonsense. This nonsense also created a distorted politics of secularism. Kapil Sibal may be acting in his professional capacity as a lawyer. But the symbolism of a senior Congress leader defending faith-based arguments trumping equality and freedom tells you in a nutshell what went wrong with Congress secularism (for an early brief critique, see my ‘Congress, Secularism and Freedom’, Seminar, 2003). It consistently allowed communal identities to trump both Article 14 and Article 21. Everyone swears by the constitution. Admittedly, the constitution is a complex text. But if Articles 14 and 21, individual liberty and equality, do not exercise moral sovereignty, then the Indian constitutional project is dead. When we say the law must pass the test of constitutionality, this is the core of the test. It’s high time the Supreme Court made it clear.

The second strange doctrine is a partial consequence of the first. This is the “essential practices” test of the court. In order to ascertain whether something deserves protection under religious liberty clauses, courts may have to inquire whether the practice is in fact religious. But our courts have gone further. Rather than subjecting religious practices to the test of constitutionality, they have given lexical priority to the religious practice. One line of argument in the triple talaq case suggests that the only issue in this case is whether the practice is genuinely Islamic. If it is, uphold; if not, abolish it.

This is again patent nonsense. Even if the practice is deemed by its adherents to be essential to a religion, it has to be subject to the test of constitutional morality. The essential practices test has often not stood in the way of social reform, because the court acquired power to regulate and redefine religion.

Our judges overreach by trying to act as pandits and maulvis. But this strategy has extracted a triple price. First, it is intellectually disingenuous. The court seems to think there is some “objective” descriptive test of what counts as essential to a religion. There is none. The court smuggles in its own regulative ideal in the guise of a descriptive test. Second, it involves the court in religious controversies, and sets the state up as arbiter of religious interpretation. This is a travesty for a secular state. But, most importantly, this test fails to convey a basic message. Religious practices cannot trump modern constitutional morality. There is something quite vapid about a court going to great lengths to show that religion, properly understood, is not in conflict with constitutional morality. It may be or it may not be; some adherents may see there is a conflict, some may not. But that is neither here nor there. The triple talaq case is not about Koranic exegesis, or faith-based protections. The core question is: Will the court redeem the constitutional promise of a society where the law treats all individuals as free and equal?

(This article first appeared in the print edition under the headline ‘No dark spaces’)

The writer is president, CPR Delhi and contributing editor, ‘The Indian Express’

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  1. T
    Trueindianman
    May 19, 2017 at 8:28 am
    If our country is to usher into moder times the religious atrocities whether from Hindu fanatics or Islam's barbaric medieval practices must be changed because majority or a large group of society can't be regressive.
    Reply
    1. S
      Samuel Johnson
      May 19, 2017 at 5:59 am
      I am amazed even in this DNAge we are talking about equal rights to men and women and trying to exempt the slavery of women by Muslim men in the name of Koran in a secular country where a woman should be treated equal to a man. If this was a Muslim country all bets are off. Even those Muslim countries have banned triple talaq and if this was a Koranic tradition then are they breaking it? How illogical mullah Muslim men are? Don't you have mothers and sisters and daughters? Shame on you. Shame on Indian system which is even considering giving equal rights to Muslim women with Muslim men. Marriage is an equal responsibility ins ution between a man and a woman. So if they go equally into it how can a man unilaterally break it? Then why not allow the woman also to unilaterally break it? What is this mumbo jumbo by muslim men? Every Indian citizen except Muslim men have to follow the process of divorce with equal rights except Muslim men who can just say bye bye bye and his wife is gone.
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        CClements
        May 19, 2017 at 5:05 am
        Abstaining from eating beef is a Hindu religious practice. What do you say about that? Stop this one-e hypocrisy. This Hindu regime has taken an anti-Muslim stance for the appea t of the majority and to further their insidious political agenda.
        Reply
        1. S
          Samuel Johnson
          May 19, 2017 at 6:03 am
          Islam is a religion which gives equality to man and woman. Marriage is a holy equal matrimony between a man and a woman. So I suppose you in Islam give a woman equal right to nullify a marriage by a woman saying triple talaq? No? I suppose your mother and your daughter and your wife has an equal right to have multiple husbands and lovers just like you have? No? Why not? Does it mean Islam is slavery of women by men?
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          1. S
            Samuel Johnson
            May 19, 2017 at 6:05 am
            Boss you have your own two countries which you demanded (I can put all the reasons for division here) and Muslims went in to fulfill their Islamic obligation of turning Ppaakistan and Bbaangladesh as Islamic where women are slave to men and minorities are being wiped out as they are Khafirs. So why are you illegally here complaining? Can I go to your land and claim anything? Then why are you multiplying like pigs here? To divide India again?
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            1. T
              Trueindianman
              May 19, 2017 at 8:34 am
              Wrong. Nathuram Ghodse murdered Mahatma hi. Are you all Hindutva guys become murderers? The Muslims have the same rights as citizens of this country you imbecile!
            2. T
              Trueindianman
              May 19, 2017 at 8:30 am
              Nobody is forcing you to eat pork!
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            3. A
              Amar
              May 19, 2017 at 2:32 am
              Law does nothing but makes the language hard for common man to understand.. the day articles like these will uncomplicate rather than keeping a dictionary on one side instead of brain will be the day we'll actually understand what bs we're being served..
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              1. M
                Mohammad Dar
                May 19, 2017 at 4:08 am
                Exactly, know the language by the spirit of the words, not the meanings of the words, cooked by some hindus crooks to fool humanity, 99.999999 of the humanity does not have any clue of true meanings of the words, they sound as a language, "the limit of the desire" but they repeat words like a parrot after others, even though, there is only one language and, its hinduism corruption called Sanskrit, and the blend of both , creates languages for the w humanity.
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                1. S
                  Samuel Johnson
                  May 19, 2017 at 4:58 am
                  Every day Mohammed Dhar wakes up after listening to some satanic arabic mumbo jumbo and then go over some demonic Koranic which teaches hate and jihad and slavery of women.
              2. S
                Samuel Johnson
                May 19, 2017 at 2:21 am
                I am amazed even in this DNAge we are talking about equal rights to men and women and trying to exempt the slavery of women by Muslim men in the name of Koran in a secular country where a woman should be treated equal to a man. If this was a Muslim country all bets are off. Even those Muslim countries have banned triple talaq and if this was a Koranic tradition then are they breaking it? How illogical mullah Muslim men are? Don't you have mothers and sisters and daughters? Shame on you. Shame on Indian system which is even considering giving equal rights to Muslim women with Muslim men. Marriage is an equal responsibility ins ution between a man and a woman. So if they go equally into it how can a man unilaterally break it? Then why not allow the woman also to unilaterally break it? What is this mumbo jumbo by muslim men? Every Indian citizen except Muslim men have to follow the process of divorce with equal rights except Muslim men who can just say bye bye bye and his wife is gone.
                Reply
                1. M
                  Mohammad Dar
                  May 19, 2017 at 4:12 am
                  Mind you hindu filthy language, hindu poor dasi s slaves called wife's of the hindus out law have no right, and the one with a free will, a Muslim lady is not a slave, as you hind absurd, but a person of equal right to, demand her right in the writing. Have a look at yoru hindu criminal way of life, before pointing fingers on Muslims, hindu immorl hog of hinduism racism, master of female infestation , of the world.
                  Reply
                  1. S
                    Samuel Johnson
                    May 19, 2017 at 5:02 am
                    Dear child Aisha rapist molester MOhammed if a Muslim woman has equal rights can she give you jihadi terrorist Sunni mullah a divorce by uttering triple talaq just like you have the right? Can your mother your sister your daughter have right to multiple husbands multiple lovers just like you jihadi muzzi terroist have? Yes or No? So then why don't you go back to your cave like your MOHammed and let your kom religion be banned.
                  2. C
                    CClements
                    May 19, 2017 at 5:10 am
                    You filthy Hindu coward, come take off your mask.
                    Reply
                    1. S
                      Samuel Johnson
                      May 19, 2017 at 5:49 am
                      I just did. Now can you remove your vest so that you don't bl0w up innocent people in the name of satanic KORAN and terrorist Islam?
                      1. T
                        Trueindianman
                        May 19, 2017 at 8:36 am
                        Your forefathers were burning young widows not long before you .
                    2. R
                      RS
                      May 19, 2017 at 1:25 am
                      ru-cl equals to ru-li-ng class
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                      1. R
                        RS
                        May 19, 2017 at 1:24 am
                        cons ution equals to con-sit-i-tution, ru cl equals to ru- class, tramp equals to tram-li-ng,
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                        1. R
                          RS
                          May 19, 2017 at 1:21 am
                          Modern cons ution has failed the minority communities of India in so many ways that is quite disheartening. Secondly, there can be no justice under the current cons ution for minorities. Because its implementation is controlled by the Hindu majority and these ru cl Hindus have no qualms about tramp the religious and cultural norms and practices of any minority community of India. And I might add that this is done with the help of Hindu judges sitting on the supreme court bench. We need to reform the cons ution so that it gives some semblance of security and power to the minority communities of India to protect themselves in Lok Sabha and Rajya Sabha from the excesses of the Hindu majority rulers. Without such modifications to claim anything in the name of the cons ution is just a big and dirty joke perpetrated my the Hindu majority on the minorities of India.
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                            Thrinethran T
                            May 19, 2017 at 1:38 am
                            What a dishonest way of declaring that you support antiquated social practices that , under the garb of religion, allow men to marry, divorce and dispossess women at will!
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                            1. S
                              Samuel Johnson
                              May 19, 2017 at 2:14 am
                              Dear RS, you are one of those thankless minority's who is now attacking our Cons ution and Hindu majority who by choice have decided to be secular. Let's go over your so called minority label. If you are a Muslim you already got two countries out of India for you, we paid you in spite of you massacring HIndus and sikhs in 1947 and Hindus and Bengali shia in 1971. And you wiped out all the Hindus and Christians from Ppaakistan and Hindus from Bbaangladesh. Yet Hindus let you grow from illegal four percent of Muslims in 1947 to twenty percent today which does not make you any more a minority. If you are a Christian like me, then we have grown in independent India more than we did during the Britishers. So if any of the minorities feel they are not treated equally in India please if you are Muslim move to any of the Muslim countries. I am glad Hindus have not brought Blasphemy laws like Muslims did in 70 not one not two but 70 Islamic countries.
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                              H S K SAHEB
                              May 18, 2017 at 11:25 pm
                              "Religious practice cannot trump modern cons utional morality". It appears that it is applicable in case of Muslims only. Dear Mr Pratap Bhanu Mehta,what is modern!!, what is cons ution !!. The recent developments in the country speaks volumes about it. In today's context Triple Talaq situation is existing in every Indian society irrespective of their religious background. A micro percentage of Muslim sisters are effected due to men who are Muslims only by names sake. Finer aspects of religion giving equal status to women have remained in the religious texts only. Law cannot change the situation in a country like India. The dire need of the hour that Muslim political, religious, social, intellectuals and community activist should come together and see that not even a single woman of their lot forced to become a des ute. This experiment can be useful for other religious groups too. By looking at the face of law and judiciary nothing will change, it will only stare at you.
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                                Bharat
                                May 18, 2017 at 9:28 pm
                                Today world consists countries as global villages and none can live isolated. Religion started with the concept of one Almighty power. From Adam to Abraham Mosses Issa Mohammed (put) only one religion with different names practiced all over the world. Religious order was updated from time to time. Islam is not Arabic religion but updated of Christian faith. Indian living here are not origional habitants of this land. The sons or daughters of Adam known with many names have migrated from one place to another. India was divided on the basis of personnel dispute over prime ministership not on religious population vs a vs land. Even many states with muslim domination opted independence with no link to two divided nations. Unfortunate is British design to ensure parts of United nation. This is past and living on past shall make us ill only. Congress did best and what we stand progressed is their contribution. Congress did some mistakes allowing hard liner to enjoy freedom and formed
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                                1. S
                                  Samuel Johnson
                                  May 19, 2017 at 5:56 am
                                  I am amazed at the ludicrest and lunatic comments from you so called Bharat. IF today's world is a global community I SUPpose muslims are giving equal rights to non Muslims in Islamic countries? No? Why not? Religion started with one almighty power or no power or multiple almigjties.... who are you to judge and spread jihad in the name of satanic Koran and wipe out everyone who does not agree with you? Arabic is not updated Christianity. Christianity is updated Judaism but Islam is different. Don't please use stupidity to confirm your mental illness. If India was not divided on the basis of religion then I suppose the other two countries are not Islamic and secular and minorities like Hindus and Cheistians are thriving in Secular Ppaakistan and secular Bbaangladesh? No? Why not? Why do you have Blasphemy laws to protect the majority in these Islamic countries? I know you miss Congie as not only it gave you your two countries it gave you Islamic ghetto in India also. Jai Hind.
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                                  Mohammad Dar
                                  May 18, 2017 at 9:16 pm
                                  hindrance to truth hinduism stupidity of hindus ignorant s, followers of hind crime against humanity, called hinduism denial of truth by faith, It is not a matter of religion but, of implementation of premarital agreement, hindus ignorant s of hinduism illegality have no knowledge of, A woman has no right to exceed the limit of her marriage contract, as is reason for fi of this hindu absurd appeal in the court of law. Courts do not have any right to make or ammend a law, but interpret a law,
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                                  1. K
                                    kg
                                    May 18, 2017 at 9:05 pm
                                    ?
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                                    1. S
                                      Seshubabu Kilambi
                                      May 18, 2017 at 7:41 pm
                                      The question of triple talaq is a part of larger problem of women security. Court should consider problem of women in all religions
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                                      1. M
                                        Mohammad Dar
                                        May 18, 2017 at 9:20 pm
                                        But hold women to their duties first, because there are no rights, without the fully discharge of duties, by the concomitant, there can never be the rights, without accountability, and there can never be accountability without the rights.
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                                        1. S
                                          Samuel Johnson
                                          May 19, 2017 at 5:58 am
                                          Man you need to listen to your mullah and bl0w yourself up so that you get your 72 h s in heII and we get to stop your daily does of mental illness.
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                                        Neelakantan Chandrasekaran
                                        May 18, 2017 at 5:57 pm
                                        The author like all our Secular intellectuals is a Boneless Wonder! He does not have guts to say that triple Talaq is wrong and muslim personal Board is wrong! Just blah blah and claim later that he opposed Triple Talaq!
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                                          Mohammad Dar
                                          May 18, 2017 at 9:22 pm
                                          And you are speaking with your hindu empty head , stuck in your hindu stinky hind, trying hard to push your hindu immoral agenda, without an argument.
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                                          1. S
                                            Samuel Johnson
                                            May 19, 2017 at 6:07 am
                                            Mohammed the child Aisha molester is going on his arabic rant making no sense just like all jihadi does.
                                        2. H
                                          Harsh
                                          May 18, 2017 at 5:53 pm
                                          Divorce is an immoral activity because as we cannot change our parents, brother or sisters, then why we should change wife. However, misuse of power or exploitation of innocents is the part of our day to day life as we are far away from to be called as civilized. Divorce is the one way of exploitation or a tool to exercise authority on others and therefore it needs legal protection to minimize the damage. As prior to democracy the religion is and was a mode of governance therefore it is better to keep its implement-tation to the religious authorities. As a secular democracy our consti-tution has given freedom of practicing religion and it has left to an individual to follow it or abandon it. Thus, legally in India everyone has a freedom to reject or accept any religion. Still if anybody is saying that his or her religion is inhuman towards them and not ready to abandon it, then they have to suffer for it and not people at large by paying for it.
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                                            RJ
                                            May 18, 2017 at 5:52 pm
                                            Regarding Kapil Sibal representing the mullahs in the supreme court, he is doing it with full backing and encouragement from his party high command. What Sibal is representing in the court is the congress party's official position in this matter. It is incredulous that anyone with an iota of sanity would still want to vote for congress party.
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                                              Indian
                                              May 18, 2017 at 5:33 pm
                                              TRIPLE TALAQ is being considered by SC only because some MUSLIM WOMEN has sought JUSTICE. If the IS-LAMIC LAWS are GOD GIVEN let ALL-AH INFLUENCE the MUSLIM WOMEN to withdraw the matter from SC. ............. Else let CIVILIZED LAWS apply to all INDIANS irrespective of religion. More than 1380 years old VIOLENT ARAB LAWS of 632AD are not suitable for CIVILIZED SOCIETY.
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                                                Diplomat
                                                May 18, 2017 at 5:19 pm
                                                Any contract (or whatever you want to call it) between two consenting adults must be unbiased, enforceable as well as equally fair for both. Period.
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                                                  Diplomat
                                                  May 18, 2017 at 5:02 pm
                                                  It would be a risky proposition for courts to look at a particular practice if it is as per the so-called religion or is prevalent over a long time. What if it is? What about its correctness? Isn't it important to check if it not against any part of cons ution? Using same logic, someone can appeal tomorrow and ask courts to repeal law banning child marriage. Also, not all religious practices are same at all times and at all places. In all religions variations exist across the time and geography which cannot be coded in the same way unless you consider cons ution to be supreme.
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                                                    Hemant Kumar
                                                    May 18, 2017 at 4:04 pm
                                                    Excellent article. It is ridiculous to treat personal laws as not having the sanction of the cons ution. Pratap Bhanu with his sharp and precise arguments has hit the nail on his head and has overturned the milestone court judgements in one stroke by his excellent exposition. He is now getting wisdom after resigning from CPR and joining Ashoka University as Vice Chancellor. All the best for Mehta for his new ignment. May he spread light in line with this article unlike his previous articles where he was going hammer and tongs against the govt. in nationalism debates.
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                                                      Ram
                                                      May 18, 2017 at 2:21 pm
                                                      IF that is so, then Beer cannot be banned as its only religious sentiments. Cons ution guaranteed the rights of a citizen to eat, dress, believe in whatever he wants. How can sanghis ban others from eating beef. In Holy Books, there are no mention of beef story. It is the creation of some upper cl aryan brahmins and cannot be forced upon to all the people of India including Hindus. Honorable SC should bring about the new sanghi divisive politics in line with beef and jeans for review and guarantee rights as per the cons utional right. Uphold Cons ution is supreme.
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                                                        Damodar Biswal
                                                        May 18, 2017 at 3:55 pm
                                                        Do u support triple talaq,sir?
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