Supreme Court’s Triple Talaq Judgment

Author - Baijayant "Jay" Panda

Posted on - 30 August 2017

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Turning point for India: Supreme Court’s triple talaq judgment sets the country on course to a uniform civil code


Last week’s landmark judgment by a Supreme Court Constitution Bench, outlawing instant ‘triple talaq’ divorce by Muslim men, is a turning point for the Indian republic and the very idea of India. That is despite the ruling being a hesitant, split verdict.

Admittedly, not everyone agrees with this assessment, and some even trivialise the parallels with the historic Shah Bano judgment of 1985. But make no mistake, this is a game changer. For starters, unlike Shah Bano, which was overturned by an act of Parliament in 1986, there is no chance of this being undone.

In fact, it has already rekindled discussion on a uniform civil code (UCC), one of the unfulfilled ‘directive principles’ of India’s Constitution that would replace the existing separate personal laws for Hindus, Muslims, Parsis and Christians.

Those who opposed reforming triple talaq had feared just that, predicting it would pave the way for a UCC. The irony, of course, is that many opponents had traditionally included not just conservative Muslims and religious leaders, but also “secular” politicians and activists.

This interpretation of secularism, defending the rights of minority groups instead of individuals, was always at odds with the construct of a modern democracy whose constitution guarantees equal rights to all citizens. But it had its own rationale in Mughal and colonial rule and the turmoil in which India was partitioned and gained independence.

That rationale is best understood by comparing the rights minority groups have historically had in theocratic nations, both conservative and liberal, with the universal rights of all citizens in modern, secular democracies.

At one end of the spectrum are conservative theocracies like the Kingdom of Saudi Arabia, which disallows the public practice of religions other than its state version of Islam.

The middle of that spectrum is exemplified by the erstwhile Ottoman empire, theocratic but relatively liberal. Though its conquest of Constantinople in 1453 was brutal, with massacres, plunder, enslavement and conversion to Islam of many residents, by the 16th century it had become much more tolerant.

The Ottomans’ ‘Millet’ system of jurisprudence allowed every religious community their own laws. This represented a kind of nationhood where the Muslim ruling class retained its preeminence but, in enlightened self-interest, also protected minorities by balancing their rights as groups.

At the other end of the nationhood yardstick are countries like the UK, US, France and Germany. Evolving from monarchies to liberal democracies, they dispensed with both privileges for the majority community, as well as group rights for minorities, replacing them with common rights for all individual citizens.

In the tumult leading up to India’s Independence, the idea that we could aspire to be a modern democratic republic was not accepted widely enough. Thus the two-nation theory, the idea of Pakistan, and Partition.

Nevertheless, our republic’s founders were committed to a modern, secular democracy, not a theocratic Hindu mirror image of Pakistan. But in their anxiety to reassure the remaining minorities, they did not immediately push through the modern, democratic version of secularism.

Instead, they spelled out that aim in the directive principles, but in the interim decided to continue with existing Raj-era separate personal laws. Limited progress thereafter includes enactment of laws against dowry and domestic violence, Hindu personal laws, and the optional Special Marriage Act, all reflecting modern sensibilities.

But despite becoming an established and respected democracy, our medieval kind of secularism had remained like that of the Ottoman empire’s, balancing group rights, rather than like modern democratic republics, focussing on individual rights.

While that might have been expedient to hold together a splintered nation during its initial birth pangs as a republic, the underlying premise is deeply troubling in the long run. For it reinforces the two-nation theory. Separate laws for every religious group in a modern democracy can be justified only if we accept that the majority cannot be trusted to uphold the individual rights of minorities.

In fact, that is precisely what critics of UCC argue, whether explicitly or couched in euphemisms. They cite various aberrations over the past 70 years, including recent cow vigilantism, to assert that India is “not ready” for UCC.

But in reality, despite its many problems, India has proved to be a stable democracy where such horrors are the exception, not the norm. Moreover, institutions like the judiciary and Election Commission continue to inspire confidence, as in the SC’s other landmark judgment last week, making privacy a fundamental right.

Cynicism about UCC undermines the idea of India prescribed by the Constitution. And it does disservice to both our hard won democracy as well as to those who would allegedly suffer when UCC is implemented.

The largely positive reactions to the triple talaq judgment shows India has come a long way in three decades. The court should perhaps have determined triple talaq’s constitutional validity without going into its religious standing. Be that as it may, ruling that a codified religious personal law is unconstitutional opens the door to full-fledged secularism.

Those who worry India might become a “Hindu Pakistan” should take note of a new Pakistani law enacted earlier this year, “The Hindu Marriage Act.” If we are not to be a mirror image of that theocratic nation, this is a reflection we should not want.