The triple talaq conundrum: Politics of religion & religion of politics must be segregated

The process of societal reform embedded in age-old practices is slow and painful. Martin Luther tried to reform the Catholic Church 500 years ago.  This attempt led to a schism within the church itself.  This also led to a 30-year religious war.  To find a common ground between two churches was difficult. The deep division between Shias and Sunnis has divided nations. Religious reforms sought to be engineered by political dispensations can lead to deep societal ‘schisms’.  The politics of religion and the religion of politics must, in any democratic society, be segregated.

Reform must be left to communities to ponder and persuade. Yet public outcry and societal pressure ensure that an abhorrent practice is buried in the dustbin of history. That is how ‘sati’ was abolished and widow remarriage gained some element of legitimacy.  

Instantaneous talaq by a husband in pronouncing ‘talaq, talaq, talaq’ though a dying practice, is considered abhorrent even by the Muslims in India.  This form of talaq is called Talaq-e-Biddat. The collected data suggests that divorces among the Muslim community attributed to triple talaq pronounced at one sitting represents only 0.44 per cent of total divorces. Two of the judges, Justice RF Nariman and Justice UU Lalit held this practice to be violative of Article 14 of the Constitution and hence unconstitutional.  The third Judge, Justice Kurien Joseph, however, held that this form of talaq is not sanctioned by the Quran.  It is regarded as sinful by Muslim scholars.  He held that what is sinful cannot possibly be considered lawful.  Two other learned judges, the Chief Justice JS Khehar and Justice S Abdul Nazeer, however, held that this practice is a part of personal law and requires the attention of Parliament to change through legislation.  Despite this, in exercise of their power under Article 142, they injuncted this particular form of triple talaq till legislation is framed by the Parliament.  However, their injunction was to be valid for six months only, within which Parliament could legislate. The views of these two Judges, however, represent the minority.  In essence, all the five Judges could not bring themselves to justify this particular form of talaq.  

The problem, of course, was the attempt of the Government to seek declarations with respect to all forms of talaq.  The Government also attacked the practice of polygamy as unconstitutional. The majority was not persuaded and held that personal law is constitutionally protected.  Justice Khehar and Justice Abdul Nazeer, with Justice Kurien Joseph agreeing, held that the right to freely practice and propagate religion under the Constitution is absolute. They also held that Muslim personal law cannot be challenged on grounds of violation of other fundamental rights.

What the majority did was to thwart the attempt of a political dispensation to bring about reforms through court processes by seeking declarations that multifarious practices which are an integral part of Islam be declared unconstitutional. Given the nature of majoritarian India, this stand of the Centre can be perceived to be an attempt to target the personal law of a particular community instead of looking at reforms holistically. Reform of communities of stratified obsolete practices must emerge from within.  These battles have to be fought outside the courtroom.  If fought through courts, it may have serious consequences.  One, it embroils courts in determining the constitutionality of personal laws, putting the court in conflict with community beliefs.  Except in exceptional circumstances, this should be avoided.  Second, it allows the Parliament to abdicate its constitutional responsibility to legislate.  The third consequence is that it creates a schism between different communities.

There are several malpractices within Hindu customary law, which need to be redressed.  If a political dispensation were to seek redressal of all malpractices within communities of all religious denominations, that is a task which no political dispensation is prepared to take up.  They dare not risk it because of vote bank politics. Daughters within a Hindu family can be deprived of their share of property by parents bequeathing their self-acquired property only to male successors. Customary marriages and their dissolution embedded in Hindu customary law are recognised and have thus far not been held to be violative of Article 14 of the Constitution.  Contract marriages are customary and protected.  Customs of communities in the North East too are constitutionally protected.

Reform we must, for without reform communities will languish in the past.

Contemporary societies require women to be recognised as equal partners in our march forward as a nation.  The problem among all communities is that the concept of patriarchy is a dominant factor in societal relationships. This patriarchal attitude has led to unacceptable discrimination against women. What society needs to address is dismantling patriarchy; accepting women as equal partners at all levels within societal structures.  Women will enjoy equal status only when they are educated and achieve economic emancipation.  We need a change of attitude, a change in our cultural moorings.  Attempts in taking battles to courtrooms will only increase schisms within society.  We have to fight this battle alongside women in their endeavour to dismantle our patriarchal culture.

The author is a Member of the Rajya Sabha, and a senior Indian National Congress leader. Views expressed are personal.