The Big Picture – Religious beliefs V/S Constitutional Morality: Challenges for Republic of India

  • May 22, 2017
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The Big Picture- RSTV
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Religious beliefs V/S Constitutional Morality: Challenges for Republic of India


TOPIC: General Studies 2

  • Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
  • Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these schemes; mechanisms, laws, institutions and bodies constituted for the protection and betterment of these vulnerable sections

Recently, Supreme Court of India was hearing a batch pf petitions, challenging the constitutional validity of the instant divorce practice under Muslim law, underlying the triple talaq questions were the deeper issues about the nature of constitutional law in India. It concluded the hearing in the triple talaq case and reserved its judgement. This case has caused a lot of judicial confusion over the years. It has also produced deep distortions in the politics. Since the existence of diversity is of such a great extent in India, the occurrence of conflicts is not a matter of surprise. When it comes to laws in India, other than the basic difference of the statutory laws and procedural laws, there are personal laws as well. They are those laws which are governed explicitly in matters relating to family affairs- marriage, divorce, succession etc. some of the examples are hindu law, Christian law, parsi law and Christian law.

SC has clearly stated that it is not going to get into the practice of polygamy and niqah halala. The SC also clarified that it is not going to get into the UCC which is currently being examined by the law commission of India. Currently, only the triple talaq and that too the instant form is under challenge before SC. Most of the petitions were mainly on the ground that it violates the right to equality under Art 14, right to non-discrimination under art 15 and right to live with human dignity that is implicit in art 21 of constitution. From the other side, the respondents were AIMPLB and few other organisations and individuals which argued that triple talaq is part of their belief and faith for last 1400 years and they went to extent of saying that ram was born in ayodya which it is also a matter of faith which no one can question.

Constitutional provisions

There is restriction on the state under art 13(2) which states that there shouldn’t be any law which violates the FRs of individuals. Other argument is right to practice one’s own personal law is derived from art 25 which is right to religion but it is subject to other rights also such as morality, health and public order. So by implication the right to personal law becomes subject to all other FRs and hence cannot violate the right to equality of Muslim women in the triple talaq issue. This was the crux of the argument. The court has to do a balancing act and strike a balance between right to religion and practice the personal law and Muslim women’s right to fundamental rights- equality and non-discrimination.

The argument from the petitioner’s side made that secularism means that all religious doctrines has had to subjugate itself to the rule of law. Triple talaq is not integral to the faith. It is a practice and that too has been modified over the time. Originally it was prescribed as one has to pronounce talaq thrice with interregnums in order to reflect on the decision of divorce the Muslim man is taking. This is more scientific way of doing it. The instant form is a retrograde practice which is humiliation of women.

The SC asked AIMPLB if there was any provision of women saying no to the triple talaq in the niqahnama. It replied that such an advisory can go out from the clergy to the people of community but the nature of it wouldn’t be binding. This shows that there is a way out to the issue and if the beginning is made, then community leaders can sort this issue to the satisfaction of petitioners.

Personal laws of religions beyond the scope of judicial review?

Any law that falls within the art 13 can never be away from the scope of judicial review.

The query of SC as to whether the community will be acceptable if an option is there in the niqahnama is problematic. If there is a conclusion that what is being infracted and infringed upon is fundamental

If it is assumed that triple talaq is an essential part of the religion, that is when constitutional powers of the SC to intervene are tested. If a religion says that the punishment of adultery is stoning and it is an essential aspect of its religion as far as retaining the sanctity of marriage is concerned and it has a scriptural basis with no distortions over a period of time, then is the SC and Indian state expected to sit back and allow the practice in name of Art 25 (1)? No.

Art 25 (1) starts with a contingent clause which clearly says that- subject to part 3 of public morality and order. Thus, there are religious rights but there are certain provisions attached to it. The state has the power to deal it. Thus, there shouldn’t be stripping the state of any power to deal with any of these practices. However, there is caveat. SC has said that the religion should not be reformed out of its identity. But then it needs to be asked that if there are certain aspects of certain religions which can shock the conscience of any reasonable, modern, secular person, then what should be done?

Interpreting the societal laws

There is a law in the country criminalising dowry. But the same law permits gifts by parents to the daughter. It is so because any law has to be acceptable to the people for whom it is being formulated. Currently the question is of a belief, a bad tradition and bad practice which has been followed over the years. So, if the SC makes an attempt to take the community on board, while correcting the wrong which is sustainable, then SC in its wisdom will take the call.

Recently, an organisation related to RSS made a statement about redoing the manusmriti. Manusmriti in its existential form is different from what is was written originally. In manusmriti there is a practice of untouchability which is a criminal offence under constitution of India. So the society has evolved and it should be encouraged. The law should be so formulated that it meets the requirements of the constitution, rights of people and level of acceptability which is required for it to be a success. However, it is a sad reality that though untouchability was declared unconstitutional in one go, it is still practiced.

The constitution has guaranteed a separate set of rights to the minorities. These minorities have most of the time opposed any changes in their rights. However, triple talaq is not about a particular community. Constitutional rights, particularly part 3- art 14, 15, 21 are not given to communities but are for individuals. So even if one citizen whose rights are being violated have the provision to go to court and claim the right. SC has said that if a practice is an essential part of the religion, then it will not touch it.

But even if it is essential part of the practice, it cannot be allowed to violate the rights of the other members of the same religion. In this case, half the Muslim population is affected.

Way forward

There is need to maintain distinction between triple talaq formulated in Qur’an allowing for time gaps for reconciliation and the current practice of instant talaq. The SC needs to take a clear position on the issue of personal laws vs. fundamental rights as it is fundamental to issue of triple talaq. Triple talaq is an outward symptom. The decision of SC will have a bearing on lot of practices on all communities, for ex. the sabrimala case.

However, as reforms are gradual and not sudden, it has to be brought into the society by spreading knowledge about it.

Connecting the dots:

  • Fundamental rights vs. personal laws debate has been an ongoing one. Critically analyse the issues pertaining to it when it comes to human rights.

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