By Faizan Mustafa
February 8, 2019
In a recent television interview, Prime
Minister Narendra Modi said that while opposition to women’s entry into
Sabarimala is a question of tradition, triple talaq is an issue of gender
justice. The prime minister has echoed what his party president and other BJP
leaders have been saying over the past few months: Sabarimala is an issue of
aastha (faith). Surprisingly, however, the Supreme Court’s Shayara Bano
judgment (2017) does not talk of gender justice. The court set triple talaq
aside because the majority in the five-judge bench found the practice to be
un-Islamic — that is, against the faith.
The prime minister’s sentiments on Sabarimala
have been echoed by the RSS chief, VHP leaders and top ministers of the Modi
government in the context of the Babri Masjid dispute. Some of them have quite
brazenly asked the apex court to decide the property suit expeditiously.
At a time when it seems that religion will
play a significant role in the electoral battle of 2019, it is of utmost
importance that we understand the meaning of tradition? What is faith? What is
gender justice? Are Sabarimala and triple talaq issues of faith/tradition or do
they pertain to gender justice? Is it right for the prime minister and others
to approve the dissenting opinion of Justice Indu Malhotra in the Sabarimala
judgment but go against the dissent by the then Chief Justice of India J S
Khehar and Justice Abdul Nazeer in Shayara Bano — the two had argued that the
“tradition” of triple divorce is as old as Islam, that is, 1,400 years. The
exclusion of women in Sabarimala is not such an ancient tradition and a queen
of Travancore is said to have visited the temple as late as 1939.
In fact, the majority in the triple talaq
judgment considered freedom of religion nearly absolute. CJI Khehar explicitly
held that personal law is included within the freedom of religion and observed
that the courts have a duty to protect personal law and are barred from finding
fault in it. He went on to hold that personal law is beyond judicial scrutiny.
“Triple divorce cannot be faulted either on the ground of public order or
health or morality or other fundamental rights,” the-then CJI said. Justice
Rohinton Nariman and Justice U U Lalit too accepted that triple talaq is
considered sinful and thus cannot be termed as an essential Islamic practice
that is entitled to constitutional protection. Sin is essentially a concept of
“faith”. Moreover, they struck down the practice as arbitrary. The judges
rightly observed that the fundamental nature of Islam will not change if triple
divorce is not recognised. Justice Kurian Joseph too said triple divorce is
un-Islamic and what is sinful in theology cannot be valid in law.
“What an individual does with his own
solitariness” is how the English philosopher Alfred North Whitehead defined
religion or faith. To former President S Radhakrishnan, “Religion was a code of
ethical rules and the rituals, observances, ceremonies and modes of worship are
its outer manifestations.” Thus, whom to worship, how to worship, where to
worship and when to worship are all questions of faith or religious tradition.
Faith also tells us what is permissible and what is prohibited in certain
contexts. Thus, what food is permissible and with whom sexual relations are
prohibited too are questions of faith for a believer or a follower of religious
tradition. If the intimate relationship between a believing Hanafi (most Indian
Muslims are followers of this sect) couple has become sinful — and goes against
the tenets of their religion — we cannot, legally speaking, force them to
continue in such a relationship. Article 26 gives every religious denomination
or any sect thereof the freedom to manage its own affairs in matters of
The argument that since some Muslim
countries do not permit triple divorce — therefore triple divorce is not an
issue of faith and can be made a criminal offence — is misconceived, as Islamic
law is not uniform. It varies from one school (sect) to another. Moreover not
recognising triple divorce as a valid form of divorce is one thing and making
it a criminal offence is another. After the Supreme Court judgment, there is
today near unanimity within experts of Indian Islam on the former point. But
most of them are opposed to the criminalisation of triple talaq because divorce
is fundamentally a civil matter.
Faiths are all about “beliefs” and these
beliefs need not be based, either on rationality or on morality. Reason and
empiricism are alien to religions. In fact, all faiths are regressive,
exclusionary and discriminatory because their origins date to pre-modern times.
But the Constitution, as a progressive
document, gives us the right to have a certain amount of irrationality and
blind belief, under the Freedom of Religion (Articles 25-28). By
overemphasising “constitutional morality,” the Sabarimala judgment tried to
curtail this freedom to irrational beliefs. That led to protests. Justice D Y
Chandrachud had described the exclusion of women as untouchability, while
delivering the verdict in the Sabarimala case. Many of us thought that he was
going too far but the purification of the temple after the entry of two women
has proved that there is indeed an element of untouchability in the exclusion
of women — this, when the Constitution has explicitly abolished untouchability.
In the Sabarimala case, the majority struck
down the rule that prohibited women from entering the temple as it went against
the parent act on places of worship. This Act lays down that all places of
worship in Kerala shall be open to all sections of Hindus. The Supreme Court
refused to recognise the Ayyappa devotees as members of a distinct Hindu sect.
It also refused to extend the Freedom of Religion to gods, thus refuting the
primary argument of the Sabarimala trust. The trust had argued that Ayyappa,
being a celibate himself, excluded women from his temple. Justice Chandrachud
held that deities are not entitled to fundamental rights. The review court may
re-examine this claim.
Gender justice is a modern concept to which
our Constitution is committed. Freedom of religion is subject to the Right to
Equality and that’s why judges have little choice in upholding discriminatory
practices. But we should not aim just at formal equality but try to achieve
substantive equality. Substantive equality rejects the “sameness doctrine”
under which men and women are to be given the same treatment. It rather favours
recognition of differences between men and women and advocates differential but
just treatment for women.
The distinction between faith and tradition
is artificial and gender justice requires reforms in both. The devotees of
Ayyappa as well as the Muslim Personal Law Board must appreciate the constitutional
vision of gender justice and religions must reform themselves internally.
However, the top- down model of reforms will not work as Indians are
essentially religious and prefer to go by the opinions of clergy rather than
the courts. The Sabarimala protests have yet again proved that courts are
ill-equipped to initiate reforms in faiths.
Faizan Mustafa is vice
chancellor, NALSAR University of Law, Hyderabad