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Small step, no giant leap
Posted:Aug 22, 2017
 
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By Pratap Bhanu Mehta 
 
It was widely expected that the Supreme Court would invalidate the practice of triple talaq. The moral and constitutional arguments for doing so were overwhelming. The Supreme Court has done well in striking it down. The only question was the grounds the Court would invoke in doing so, and the ramifications this might have for wider developments on the issue of personal law. On this measure, it has to be said the Court’s decision is disappointing. It reflects the fact that India is still not ready to embrace the full promise of individual freedom and equality embodied in its Constitution; they will have to be won in bits and scraps, hesitantly and amelioratively.
 
 
For starters, the decision was very narrow. The fact that it is a 3:2 decision should be a reminder of just how far we are from creating a consensus that principles of equality and freedom should be the touchstone of our Constitution, and all religious and customary practices must measure up to it. Although the Court has invalidated triple talaq it is worth reminding ourselves that the majority has not ruled that our basic constitutional values override religious belief and practice.
 
 
In fact, Justices Nazeer and Khehar’s dissenting decision is the strongest defence we have seen of community rights over individual rights, religion over liberty and equality, and private law over statutory enactment for decades. In fact, it goes one step further. By equating practices like personal law with Article 25(1), with freedom of conscience, it lays the basis for an even stronger defence of personal law than is currently the case. In addition, Justice Kurian Joseph invalidated the practice on the very narrow ground that triple talaq was incompatible with the tenets of Islam. This case is a small step for justice, but not a giant leap for Indian constitutional law. The nefarious judgment, State of Bombay v/s Narasu Appa Mali that exempts personal law from scrutiny still remains an operative judgment.
 
 
This may have some bearing on future jurisprudence. The key judgment by Justices Nariman and Lalit is perfunctorily argued, as if it lacks the courage of its own conviction. It correctly argued that the 1937 Shariat Act has the force of law behind it and is state action. It rightly emphasises the importance of Articles 14 and 21 and the intimate connections between them. Its potential radicalness consists in the fact that it avoids the disingenuous essential practices test. It says with clarity that whether or not a practice is essential for a religion is not within the competence of the Supreme Court to decide. And that it is neither here nor there if a practice violates the Constitution. But in triple talaq it is stunningly easy to show that Article 14 has been violated. This case may not, therefore, set any kind of precedence for other cases where the issue of gender equality is more debatable. In short, at least a more elaborate consideration of how Article 14 might affect personal laws would have laid down a better signpost for the future.
 
 
I disagree with all of Khehar and Nazeer’s conclusions. It is a seriously argued judgment. But the normative picture it presents of the Indian Constitution is frightening, since it leaves no recourse for individuals to have their dignity and equality affirmed; it puts them entirely at the mercy of their communities. It is chilling to read a sentence like, “It is not open to a Court to accept an egalitarian approach over a practice which constitutes an integral part of a religion.” This, even when these practices have the imprimatur of state power behind them. It elevates faith to an un-negotiable status. I suspect this doctrine will have more implications than the judgment by Nariman and Lalit.
 
 
There is, unlike in Shah Bano, an admirable lack of grandstanding in this judgment. It is closer in tone to Danial Latifi v/s Union of India. It could be argued that the Court has done a very Indian thing. It reached the right conclusion without a consensus on first principles. It could also be argued that this is a prudent outcome. It produces a small reform, without creating a polarising debate on the question of personal law.
 
 
These are perhaps admirable outcomes. It is arguably through such a modus vivendi that Indian courts have retained their legitimacy. But let us not disguise the fact that 70 years after Independence, these victories are very small victories indeed. The cause of gender justice within the framework of personal laws and the Constitution still has a very long way to go. Our sheer relief at the fact that we do not have to confront hard political issues should not blind us to the cost of avoiding hard questions.
 
 
At the very least, we should recognise the fact that the courts have to tread so gingerly because we are not ready. The court’s caution reflects a fundamental conservatism in the republic. Then there is the question of Parliament’s role. This is a thorny issue our politics has avoided. Parliament, historically, has refrained from legislating on Muslim personal law, in part because it did not want to give the impression of majoritarian intimidation; and it did not feel it was as representative on these matters in relation to Muslims as it did to others. The net result was that personal law remained exempt from the burdens of justification, enforced by an obdurate Muslim Personal Law Board. This abdication was, in some senses, the political basis for the rise of majoritarianism.
 
 
Whatever change happened, happened incrementally, through the courts with politicians avoiding the issue. The abdication of the Congress and progressive forces on this issue was a colossal historical and moral blunder. The big question is: Is it now possible for our politics to calmly discuss issues of personal law reform and gender justice across all communities, without communalising our politics? The silver lining in this moment is the fact that there is such a strong movement for reform among Muslims.
 
 
This is reflected in the petitioners, but also the Muslim Women’s Personal Law Board that has challenged orthodoxy very impressively. For Parliament not to take up this debate, for progressives to unwittingly side with communal forces by shielding all personal law from the shining light of Articles 14 and 21, would be to let down these forces bubbling up within Indian society. The Court has given us a small victory. But it cannot bear the entire burden of reform or of forging a consensus. That is really the heart of its message.
 
 
 
 
 
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