Secularism is once again being debated after the 5 member Constitutional Bench of the Supreme Court of India set aside by majority of 3:2 Judgment in Writ Petition (C) No. 118 of 2016 (Shayara Bano vs. Union of India & others), talaq-e-biddat or instant triple talaq in one sitting resorted to by some Muslim men. The Judgment is welcome in so far as it relieves Muslim women from the misery or potential misery of instant triple talaq in one sitting. However, this is only a partial amelioration of their misery. Patriarchal interpretation Qur’an’s message, different Sunni fiqhs (Islamic schools of jurisprudence) – Hanafi, Hanbali, Maliki, Shafi, and Shia fiqhs (collectively called as Muslim personal law) will continue to rein even when they are in violation of fundamental rights mentioned in Part III of the Indian Constitution on fundamental rights of citizens.
There were some common grounds in three separate Judgments given in the Shayara Bano case – none of the three Judgments contested the ground that “personal laws”, not being a law passed by the state, cannot be subjected to test of violation of fundamental rights of citizens. The Chief Justice of India and Justice S. Abdul Nazeer in their joint Judgment held that personal laws or laws that govern family relations viz. marriage, divorce, maintenance, custody of children, intestate succession, adoption of children, guardianship, etc., as they are not laws passed by the state, could not be subjected to judicial scrutiny as to whether they violate fundamental rights of the citizens.
It was not within the realm of discretion of judiciary to set aside a matter of faith and religion, held CJI and Nazeer J. They stated in their judgment, “It is not difficult to comprehend, what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities. We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and ‘personal law’.” The Honourable Justices further held, “….while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist. It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’ must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem.” (Shayara Bano vs. Union of India, 2017, p. 267, para 196). To follow personal law then, is part of freedom to profess, practice and propagate religion, unless it falls foul of reasonable restrictions mentioned in Article 25 of the Constitution, viz. public order, morality and health.
Rohinton F. Nariman and Uday U. Lalit JJ in their joint Judgment did not contest the premise viz., that personal laws are beyond the pale of judicial scrutiny. They held that the practice of talaq-e-biddat was recognized and enforced by Section 2 of ‘The Muslim Personal Law (Shariat) Application Act, 1937’, a Colonial legislation. Talaq-e-biddat was therefore ‘law in force’ within the meaning of Article 13 (1) of the Constitution and liable to be struck down if talaq-e-biddat fell foul of the Part III of the Constitution of India on fundamental rights. The Constitutional Courts therefore had power to set it aside on the ground that it was arbitrary. Justice Kurian Joseph in his Judgment agreed with the premise propounded by the CJI and Justice S. Abdul Nazeer, viz. that talaq-e-biddat could not be termed as ‘law in force’ being a customary law and traditional practice. Impugned practice of instant talaq therefore was part of personal law and was amenable to judicial scrutiny for violation of fundamental rights. However, Kurian J. disagreed with the CJI and Nazeer J. on the issue that talaq-e-biddat was against the tenets of Holy Quran and that being so, it was ultra vires the S. 2 of the Shariat Act, 1937 and did not enjoy Constitutional protection. Talaq-e-biddat was therefore liable to be set aside.
Unrestrained freedom of personal laws
It could therefore be said that the learned Judges of the Constitutional Bench gave a 3:0, if not 5:0, verdict that personal laws of all communities would reign unrestrained and enjoyed the protection of Article 25 of the Constitution which guarantees right to freedom of religion. Personal laws, as mentioned above, are rules of decision which pertain to marriage, divorce, etc. Unless codified (and to the extent codified) by the legislature, they are based on religious scriptures, customs, traditions and usages of communities. Custodians of religious scriptures and customs of all communities have been patriarchal and feudal elite. They often enforce them using fear of God and at times use coercive force which may include threat of exclusion from community controlled institutions, social boycott and even physical force. Personal laws often privilege a section (feudal and patriarchal elite) and disadvantage the rest in various degrees. Women and children have always been disadvantaged by the prevalent understanding of religious scriptures mediated through patriarchal culture. The custodians of personal laws – we can call them cultural entrepreneurs or gate keepers of culture, customs and traditions – are necessarily conservative, may be with a few exceptions. Much necessary changes in customs and traditions come about when individuals within communities challenge the practices and traditions in face of ostracization and coercive harassment.
Freedom to profess, practice and propagate religion accrues to all persons. All persons are equally entitled to that freedom. However, if personal laws are accorded unbridled Constitutional protection by Art. 25, the cultural gate keepers will enjoy higher degree of freedom as they can impose their understanding of religion and personal law on others. The elite cultural gatekeepers often draw lines to construct separate communal walls. These custodians of community would judge right behaviour from wrong for their entire community. Can we then say all persons equally enjoy freedom of religion? The elite would enjoy more rights to profess and practice religion than other members of a community. There would be hierarchy within each community based on gender and other birth based social status. The cultural gatekeepers defend these hierarchies as God made. India would then look more like confederation of communities rather than nation of equal citizens.
Dr. Babasaheb Ambedkar wanted make our political democracy a social democracy as well. Social democracy is a way of life which recognizes liberty, equality and fraternity as the principles of life. He warned us, “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.” (Dr. Ambedkar, 1949)
Despite setting aside the practice of instant triple talaq in one sitting by 3:2 verdict, there is a cause of worry. Personal laws have been placed on a pedestal of freedom of religion. There is not even a whisper of gender equality in the entire judgment. R. F. Nariman and U. U. Lalit JJ. invoke Art. 14 in support, however, on the issue of arbitrary nature of talaq-e-biddat.
The All India Muslim Personal Law Board (AIMPLB) in its initial reaction reminded us that the Court had upheld their submissions viz. personal laws are part of freedom of religion and cannot be interfered with. AIMPLB felt that their position had been vindicated. The Ulemas of various schools of jurisprudence would still be sitting over the lives of Muslim women enforcing their writ. Though talaq-e-biddat has been set aside, Muslim women could still be divorced by talaq-e-ahsan (two pronunciations with a gap of three months) and talaq-e-hasan (pronouncing talaq once every month three times when his wife in not menstruating). The instant talaq would be replaced by a procedure to be followed over a period of three months. While no marriage can be forced upon either partner, and it is not prudent to continue a marriage when there is an irretrievable breakdown, divorced women should not be left in a situation of destitution to fend for herself. To AIMPLB, the practice of talaq-e-biddat (something they agreed was bad in theology, though good in law) has been sacrificed but the Muslim personal law has been saved.
The Shayara Bano Judgment has drawn redlines for the judiciary. Personal law having been declared integral part of freedom of religion, they would not be amenable to judicial scrutiny for violation of fundamental rights. Ironically, under Article 25, right to freedom of religion is not absolute. It has been subjected to 6 reasonable restrictions. 1) public order; 2) morality, 3) health, 4) other provisions of Part III of the Constitution (fundamental rights), 5) regulation or restriction on economic, financial, political or secular activity associated with religious practice and 6) providing for welfare and reforms. The last two restrictions would require legislative intervention. In our humble understanding, when the judiciary is mandated to protect the freedom of religion, the language of Art. 25 is clear – it is subject to the other provisions of Part III, including Articles 14, 15 and 16 right to equality, recognized for all persons including gender equality.
However, so far as personal laws are concerned, The Shayara Bano Judgment seems to have passed to buck on to the executive and legislature to make it compliant with the fundamental rights. Given the political agenda of uniform civil code of the present regime, minorities fear that the legislature may impose a family law that is entirely alien to their way of life and with the intention to “integrate them into a Hinduized nation”. The learned former Attorney General – Mukul Rohatgi submitted before the Court that if they set aside the practice, the Central Government was ready to bring in legislation. This fear of imposition of an alien code keeps the flock of minority together. They fear any change, howsoever desirable and good for the community.
The Shayara Bano Judgment seems to imply that the Judiciary is obliged to uphold religious freedom of religio-cultural gatekeepers in their enforcement of personal laws. The Judiciary would refrain from protecting fundamental rights of members of the community vis-a-vis the religio-cultural gatekeepers. The Judiciary would encourage church within Islam even though the religion does not permit one. There is no agent between God and believer. Believer can seek help to understand the guidance of Quran but she is solely responsible and responsible only to God, not the religio-cultural gatekeepers. Shayara Bano Judgment leaves gullible followers to the mercy of the self-appointed church – institutions propounding and enforcing various fiqhs and the AIMPLB. Islam does not oblige believer to follow any school of jurisprudence, just be guided onto the straight path (sirat ul mustaqim) by her own understanding and be responsible only to Allah. There is enough space in Islam for enlightened understanding evolution of law in accordance with changing times and the process is called ijtihad. The Ulemas of various fiqhs closed the gates of ijtihad and merely follow their respective fiqhs. They extol the virtue of taqlid, i.e. merely submitting and following without application of mind to their fiqhs.
While the Shayara Bano Judgment is welcome in so far as it sets aside the practice of talaq-e-biddat, the protection accorded to Muslim Personal Law on the grounds of freedom of religion is worrisome. The Judgment has left minority citizens to either the mercy of cultural gatekeepers propagating taqlid or to a Parliament wherein the Hindu supremacists are in majority – between the devil and the deep sea.
Three Ld. Judges of the Constitutional Bench accord protection to personal laws on the basis of Article 13 (1), which provides that onlylaws in force before the commencement of the Constitution can be declared void in so far as they are inconsistent with the Constitution. The CJI, Nazeer and Kurian JJ. held that Muslim personal law is not a ‘law’ within the meaning of the term, and therefore cannot be tested on the ground of inconsistency with the Constitution, including the fundamental rights.
Nariman and Lalit JJ. opined that personal laws operate under the Shariat Act, 1937 and therefore is a law as defined in Article 13 (3). Article 13 (3) (a) includes within the meaning of law even customs and usages having force of law within the territory of India. Muslim personal law is not only customs and usages having force of law within the territory of India, the customs and usages are also mandated under the Shariat Act, 1937. On both counts under Article 13 Muslim personal law is “law” as defined under Art. 13 and therefore to the extend it is inconsistent with the fundamental rights under Part III of the Constitution, it is liable to be declared void and inoperative.
Operation of Muslim Personal law impacts 172 million Indians in important area of marriage, divorce, maintenance, custody of children, testate and intestate succession, guardianship, adoption of children, etc. Can we leave this vast and important area of life to the whims of cultural gatekeepers and exclude it from important rights as equality, justice, right to life and liberty?
Religion may not be subjected the challenges raised by rationalists or enlightened sensibilities; religion and ‘personal law’ my be perceived, as it is accepted, by the followers of the faith and not, how another would like it to be as opined by the CJI and Nazeer J. However, should the cultural gatekeepers be allowed unrestrained freedom in the name of personal law and force a section of citizens, particularly women of the community, to live as slaves or second class citizens and the judiciary feel helpless to come to their rescue?
We are not against Muslim Personal Law or any other personal law for that matter. They all have their strengths and are good for their followers. We firmly stand for diversity. However, so far as any provision of a personal law is inconsistent with the fundamental rights of the citizens, it should be held to be void. In Shayara Bano Judgment we have achieved only partial victory. We have to carry on the struggle till these religio-cultural gatekeepers are completely marginalized or they too are in consonance with Constitutional objectives.
 Article 25: Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.- In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly