Triple talaq and the Constitution – OPINION – The Hindu
- The Supreme Court cannot decide this case without engaging in a series of complex and difficult choices
- The Supreme Court today will begin hearing arguments in Shayara Bano v. Union of India , which has popularly come to be known as the “triple talaq case”.
- This case, in which the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, and nikah halala has been challenged, has created political controversy across the spectrum.
- The All India Muslim Personal Law Board (AIMPLB) has warned secular authorities against interfering with religious law.
- Proponents of the first view — which include some of the interveners before the court — invite the judges to hold that triple talaq is invalid because it has no sanction in Muslim personal law
- In response to the AIMPLB’s claim that the state has no right to interfere in the personal, religious domain, they respond that the religious domain, properly understood, does not, and has never, allowed for triple talaq.
- They draw a distinction between instantaneous talaq, or talaq-i-bidat (where divorce is complete when “talaq” is uttered three times in succession) with talaq ahasan, which requires a 90-day period of abstinence after the pronouncement, and talaq hasan, which requires a one-month-long abstinence gap between utterances. The latter two are part of Islamic personal law, but the first one is not.
- There is no evidence to show that talaq-i-bidat constitutes an integral part of the Islamic faith and, consequently, it does not deserve constitutional protection. On this view, the Supreme Court need not go into tangled and messy questions involving personal law and the Constitution; it can decide the question on its own terms.
- Historically, the Supreme Court has often “interpreted” or “modified” elements of religion to conform to a modernist, progressive world view, while holding that such its interpretation is the true understanding of what the religion actually commands.
- However, while the narrow view would be the easy and natural path for the court to take, it would also entail missing a significant opportunity.
- This approach, however, runs into one significant problem. In order to subject triple talaq — as a claimed aspect of Muslim personal law — to constitutional norms, the court must first overrule a 1951 judgment of the Bombay High Court (subsequently affirmed by the Supreme Court in another case) called State of Bombay v. Narasu Appa Mali . In that case, Justices Chagla and Gajendragadkar held that uncodified personal laws may not be scrutinised for fundamental rights violations.
- They did so on the technical reasoning that Article 13 of the Constitution subjected only “laws” and “laws in force” to the scrutiny of fundamental rights, and that “personal laws” are neither “laws” for this purpose, nor “laws in force”.
- . The colonial courts of the British empire, in fact, played an active role in both constructing and shaping what came to be defined as personal law. They did this through selection of “authentic sources” (to refer to and cite in their judgments), through creating a hotchpotch amalgamation of common law principles and what they perceived to be ancient Hindu (or Muslim) personal law, and by imposing binary categories upon fluid and changing identities.
- It is now well-known, for instance, that in the famous Aga Khan case in 1866, the Bombay High Court treated the Khoja community as Muslim, despite their own protestations that they identified neither with Muslims, nor with Hindus.
- The choice
- Ultimately, the choice between the court is a stark one. Ever since the Narasu Appa Mali case, there has been a domain of law — i.e., uncodified personal law — that has simply been deemed to be beyond the realm of the Constitution, and beyond the scrutiny of constitutional norms such as equality, freedom of conscience, and the right to personal liberty. Not only has this created a paradoxical situation where, as long as personal laws are uncodified, they escape constitutional scrutiny, but the moment they are legislated by the state (as large parts of Hindu laws were in the 1950s), they become subject to the Constitution; but it also seems to be entirely at odds with the basic principles of a republican democracy governed by a secular Constitution.
- There is no doubt that triple talaq violates women’s rights to equality and freedom, including freedom within the marriage, and should be invalidated by the Supreme Court.
- The larger question, however, is whether the court will stick to its old, narrow, colonial-influenced jurisprudence, and strike down triple talaq while nonetheless upholding a body of law that answers not the Constitution, but to dominant and powerful voices within separate communities; or will it, in 2017, change course, and hold that no body of law (or rather, no body of prescriptions that carries all the badges and incidents of law) can claim a higher source of authority than the Constitution of India?
Navigating the new silk road – OPINION – The Hindu
- China’s Belt and Road Initiative reflects global trends and a new paradigm which India can support and shape
- China has suggested starting negotiations on a ‘China India Treaty of Good Neighbours and Friendly Cooperation’, restarting negotiations on the China-India Free Trade Agreement, striving for an early harvest on the border issue and actively exploring the feasibility of aligning China’s ‘One Belt One Road Initiative’ (OBOR) and India’s ‘Act East Policy’.
- To repeat Nehru’s outright rejection in 1960 of Zhou Enlai’s proposal to settle the border dispute would be a historic mistake.
- With the long term in mind
- India’s response should be based on its long-term interest and not short-term concerns
- First, treat the Belt and Road Initiative (BRI) — which already has contracts of over $1 trillion covering over 60 countries — as enlarging areas of cooperation; and push for India as the southern node and a ‘Digital Asia’. India cannot be a $10 trillion economy by 2032 without integrating itself with the growing Asian market and its supply, manufacturing and market networks.
- Second, complementary to China’s Initiative, develop common standards with the fastest growing economies in Asia that are on the periphery of the B&R Initiative, such as Bangladesh, Vietnam and Indonesia, to facilitate trade, investment and business engagement.
- Third, offer a new cooperation framework in South Asia around global challenges. For example, sharing meteorological reports, region specific climate research and the ‘Aadhaar’ digital experience, despite on-going security concerns.
- Fourth, thought leadership provides an avenue to increasing global influence.
- India has the potential to be the second largest world economy
- Countries are now gaining influence more through the strength of their economy than the might of the military. However, analysts in India have yet to recognise these global trends and continue to see the re-emergence of China through a security prism.
- Calls for new alliances with Iran, Iraq, and Afghanistan “to create a two-front dilemma for our western neighbo[u]rs, but also encirclement of our northern neighbo[u]r from the west” ignore the strategic impact of the BRI which all countries in Asia, except Japan, embrace and require new approaches to secure our own re-emergence.
- As a continental power, China is knitting together the Asian market not only with roads, rail, ports and fibre optics but also through currency exchange, standards, shifting of industry and common approaches to intellectual property rights.
- As the world economy is expected to triple by 2050, Asia will again have half of global wealth. China is seeking to fill the vacuum following the U.S.’s withdrawal from the Trans-Pacific Partnership, and India should add elements to it that serve its national interest as part of its vision of the ‘Asian Century’.
- Coordination between the major powers is emerging as the best way of global governance in a multi-polar world. Despite their territorial dispute, strategic differences and military deployment in the South China Sea, China and Japan have just agreed to strengthen financial cooperation, and the Forum could provide an impetus to settling the border dispute between India and China.
- The BRI seeks “complementarities between a countries’ own development strategy and that of others”, though its goals have yet to be formalised, and India would lend a powerful voice to a strategy and structure that ensures common goals will not be neglected.