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 religion.
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