By Pratap Bhanu Mehta
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.
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.
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.”
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, is 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.
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.
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.
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.
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 Quranic 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?
Pratap Bhanu Mehta is president, CPR Delhi and contributing editor, ‘The
Constitutional morality is centered
round eliminating human rights violation, removing injustice and treating.all
individuals free and equal in it eye. However, in a society where a fanatic
person can kill another for perceived profanation of his religious symbol or icon,
constitutional morality disregarding the religious will ring hollow in the ears
of the public, especially on matters that have a religious dimension. So the
court, to be effective, must sell its card of constitutional morality in the
packet of religious more. The Supreme Court is doing just that
in case of triple talaq. Since the Qur’anic more is based on universal justice,
it can appropriate constitutional morality and vice versa.