The debate on triple talaq issue is directly related with the religious freedom the Constitution of India grants to everyone. However, in certain cases practicing absolute religious freedom could affect human rights of the some vulnerable community members – particularly the female. Principally, India being a secular state shall not intervene in religious affairs of a community; however, this is not the case. Indian contextual secularism advocates state- intervention for sake of substantive values – in this case to protect human rights. Amit takes an in-depth look at the contentious issue, free from the trappings of electoral politics. Here’s an analytical research, by the author, exclusively for Different Truths.
India is a secular and multicultural country without provision of specific multicultural policy. However, due to diversity of religions and communities in India, Constitution provides religious communities a wide space for practicing their religious customs and traditions, meaning, there are separate sets of personal laws for each religion governing their marriage, inheritance and property rights.
The current debate on triple talaq issue is directly related with the religious freedom the Constitution of India grants to everyone. However, in certain cases practicing absolute religious freedom could affect human rights of the some vulnerable community members-particularly female members of the community. Principally, India being a secular state shall not intervene in religious affairs of a community; however, this is not the case. Indian contextual secularism advocates state-intervention for sake of substantive values – in this case to protect human rights as we shall see further in this article.
The triple talaq provision allows a Muslim man to divorce his wife by merely pronouncing talaq thrice or saying it three times simultaneously in three sentences.
On October 7, 2016, the Indian government had opposed in the Supreme Court the practice of triple talaq, ‘nikah halala’ and polygamy among Muslims and favoured a relook on grounds like gender equality and secularism. Citing the human rights principles of gender equality, women’s discrimination, gender justice and upholding the dignity of women, the government intends to ban the practice of triple talaq. Interestingly, in their argument against triple talaq government also invoked international UN covenants, religious practices and marital law prevalent in various Islamic countries (Saudi Arabia, Pakistan, and Iraq) 1 and secularism.
The Union Law Ministry argued that polygamy and triple talaq should be done away with, asserting that these practices “cannot be regarded as essential or integral part of the religion”. The government stated that the absence of reforms in the community in the last 65 years have left Muslim women “extremely vulnerable, both socially as well as financially”, and maintained that triple talaq and polygamy impacted a woman’s status and her right to live with confidence and dignity2.
The All India Muslim Personal Law Board (AIMPLB) in its counter affidavit in the Supreme Court, had said that Muslim practices of polygamy, triple talaq (talaq-e- bidat) and nikah halala are matters of “legislative policy” and cannot be interfered with. The board also said issues of marriage, divorce and maintenance were based on Holy Scripture (al-Quran) and “courts cannot supplant its own interpretations over the text of scriptures”. AIMPLB had defended the validity of triple talaq, saying that if the practice is discontinued, a man could murder or burn his wife alive to get rid of her3.
Taking tough stand against government, Barelvi cleric, Mufti Akhtar Raza Khan, the “patron” of the sect, threatened an agitation if the Centre did not retract its steps, said, an agency report from Bareilly. Maulana Mahmood Madani, general secretary of Jamiat Ulama-i-Hind, a body of Deobandi clerics, dubbed the government’s action as “unnecessary”4 .
However, The Law Commission’s decision to invite views on the contentious Uniform Civil Code has drawn criticism from the AIMPLB and other Muslim organisations, which said they will boycott it and accused the Modi government of waging a “war” against the community.
Multicultural Conflicts, Secular Solutions: Intervening in Religious Affairs
India is a multicultural country governed by so called secular constitution. Indian response in managing its cultural diversity and originating tension between secularism and religion has been influenced with Indian policy of recognition and policy of cultural accommodation-a sort of multicultural policy to safeguard the rights of religious and ethnic minorities. Most of the multicultural policies were made and contextualised under the influence by the history of sectarian conflict in British-ruled India and Indian constitution is the only multicultural document.
The kind of secularism India practice is not totally USA model where there is a strict separation between church and state rather, Indian model of secularism is contextualised to cater the multicultural needs of a very diverse nation. Indian contextual secularism as scholar Rajiv Bhargva refers it, intervene in the religious affairs of the communities, both majority, and minority alike.
Indian style of contextual secularism is reflected in government policies when it changed Hindu personal law quite significantly. Polygamy was made illegal; the right to divorce was introduced; child marriage was abolished, animal sacrifices within the precincts of the temple were prohibited, devadasi dedication was abolished; temple entry rights for Harijans were introduced; and temple administration was reformed (Chateerjee, 1994, p.1770-5). This example proves that government, in the matter of human rights and for social reformation, did intervene in the religious affairs.
However, arguments are made about secularism that democratic state must be expected to protect cultural diversity and the right of people to follow their own culture. This is why precisely Indian Constitution allowed minority to retain their personal laws and undertook not to change these (including the right to maintain their religious institutions and funding from the state) without their consent if fact, laws have passed banning bigamy among Hindu but not among some minority communities5 .
However, famous British scholar on multiculturalism, Bhikhu Parekh, who has appreciated Indian constitution for accommodating diversity and plurality have asserted that state cannot remain indifferent to the iniquities of some of these laws and needs to insist on certain basic principles of justice. Indian scholar Rajiv Bhargva also justifies government intervention in the religious affairs provided that it shall be guided by non-sectarian principles consistent with a set of values constituted of a life of equal dignity for all.
However, one of concern is that intervening in the religious affairs of a religious minorities also open ways for manipulation from political parties as Akar Patel has argued, “Triple talaq and polygamy are likely to be the next ground on which Hindutva will assert itself”.
Nevertheless, even Muslim leadership in India has not shunned state intervention altogether though Muslim family affair is governed by their Personal Law Code (Chateerjee, 1994, p.1772). Scholar Bilgrami (cited in Harihar, p.154) has questioned the constitutional protection for the “personal laws” of the Muslims in India, as such personal law restrict individual rights and autonomy. Bilgrami fear is justified in Khan v. Shah Bano Case (1985 SCR (3) 844) 6 , where a Muslim women’s human rights were ignored by government just to respect Muslim personal laws and to appease minorities for political gains.
Interestingly, some scholar’s of multiculturalism empower minorities to the extent of ignoring the human rights of weaker member of their society including children and women. However, Chandran Kukathas believe minority community must respect the rights of its members who want to leave the group or to form a separate identity.
In the concerned case, Muslim clerics are not respecting the dissenting voices from their community and are not ready to change their patronising attitude towards their women. Unilateral divorce is wrong. Equality is the need of time and Muslim clerics must transform their approach and respect rising consensus against triple talaq among their own community.
Triple talaq, does violate numerous women’s rights and promotes a social cultural hegemony over the Muslim women’s lives, patronize their human rights. Not only this old tradition violates many Constitutional rights, but also not in line with the UN human rights conventions, thus, shall be banned in a civilized society.
5 Article 29 (1) says that any section of the citizens of India having a distinct language, script or culture of its own shall have the fundamental right to conserve the same. This means that if a cultural minority wants to preserve its own language and culture, the state cannot by law impose on it any other culture belonging to the local majority. Both religious and linguistic minorities are protected by this provision.
Bhargave, R (1994) What is Secularism For? Economic and Political Weekly, July 9
Bhargava, R (1998) “What is Secularism For?” In Rajiv Bhargava, eds, Secularism and Its Critic, Oxford University Press, Delhi
Bhattacharya, H (2003) Multiculturalism in Contemporary India. IJMS: International Journal on Multicultural Societies. vol. 5, no.2, pp. 148-161. UNESCO. ISSN 1817-4574. www.unesco.org/shs/ijms/vol5/issue2/art4
Chatterjee, P (1994) ‘Secularism and Toleration’, Economic and Political Weekly, 29.28
Parekh, B (2000) Rethinking Multiculturalism Cultural Diversity and Political Theory, Cam bridge, Harverd University Press
Patel, A (2016) http://www.firstpost.com/india/uniform-civil- code-triple- talaq-polygamy-might-be- ground-on- which-hindutva– asserts-itself- 3054376.html
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Amit Singh is a human security and social justice expert. He is a doctoral candidate at University of Coimbra, Portugal; hold master degrees in history, human rights, and multiculturalism. He is a columnist for several newspapers in Norway and India.