Does India's Secularism Provide A Solution To Triple Talaq?

India is a secular and multicultural country without provision of specific multicultural policy. However, due to diversity of religions and communities in India, the Constitution provides religious communities a wide space for practicing their religious customs and traditions, meaning, there are separate sets of personal laws for each religion governing their marriage, inheritance and property rights.

The Indian government had opposed the practice of triple talaq, ‘nikah halala’ and polygamy among Muslims citing the human rights principles of gender equality, gender justice and secularism. However, The All India Muslim Personal Law Board (AIMPLB) considers matter of triple talaq a "legislative policy" and thus, it cannot be interfered with. AIMPLB had defended the validity of triple talaq, saying that if the practice is discontinued, a man could murder or burn his wife alive to get rid of her.

India is a multicultural country governed by a secular constitution. The Indian response in managing its cultural diversity and the tensions between secularism and religion have been influenced by the Indian policy of recognition and of cultural accommodation -- a sort of multicultural policy to safeguard the rights of religious and ethnic minorities. Most of the multicultural policies were made and contextualized under the influence of the history of sectarian conflict in British ruled India, and the Indian Constitution is the resultant multicultural document. Principally, India being a secular state shall not intervene in religious affairs of a community. However, this is not the case. Indian contextual secularism advocates state-intervention for the sake of substantive values -- in this case to protect human rights.

The kind of secularism India practices is not the USA model where there is a strict separation between church and state but rather, the Indian model of secularism is contextualized to cater to the multicultural needs of a very diverse nation. Indian contextual secularism -- as scholar Rajiv Bhargava refers to it -- intervenes in the religious affairs of the communities, both majority and minority alike.

The Indian style of contextual secularism is reflected in government policies, for example, when it changed Hindu personal law quite significantly. Polygamy was made illegal; the right to divorce was introduced; child marriage was abolished; animal sacrifices within the precincts of the temple were prohibited; devadasi dedication was abolished; temple entry rights for Harijans were introduced; and temple administration was reformed. This example proves that the government, in the matter of human rights and for social reformation, did intervene in the religious affairs.

However, arguments are made about secularism in that democratic state must be expected to protect cultural diversity and the right of people to follow their own culture/religion. This is precisely why the Indian Constitution allowed minorities to retain their personal laws and undertook not to change these (including the right to maintain their religious institutions and funding from the state) without their consent. In fact, laws have passed banning bigamy amongst Hindus but not for some minority communities.

However, the famous British scholar on multiculturalism Bhikhu Parekh -- who has appreciated the Indian Constitution for accommodating diversity and plurality -- asserted that the state cannot remain indifferent to the iniquities of some of these laws and needs to insist on certain basic principles of justice. Indian scholar Rajiv Bhargava also justifies government intervention in religious affairs provided that it shall be guided by non-sectarian principles consistent with a set of values constituted of a life of equal dignity for all.

One concern is that intervening in the religious affairs of a religious minorities opens up ways for manipulation from political parties, explaining why some would fear that Triple Talaq and polygamy are likely to be the next ground on which Hindutva will assert itself.

Nevertheless, even Muslim leadership in India has not shunned state intervention altogether, though Muslim family affairs are governed by their Personal Law Code. Scholar Bilgrami has questioned the constitutional protection for the “personal laws” of Muslims in India, as such personal laws restrict individual rights and autonomy. Bilgrami’s fear is justified in Khan v. Shah Bano Case (1985 SCR (3) 844), where a Muslim women’s human rights were ignored by the government just to respect the Muslim personal laws and to appease minorities for political gains.

Interestingly, some scholars of multiculturalism empower minorities to the extent of ignoring the human rights of weaker member of their society including children and women. However, as the expert in multiculturalism, Chandran Kukathas, says -- minority communities must respect the rights of its members who want to leave the group or to form a separate identity.

In the concerned case of Triple Talaq, some Muslim clerics are not respecting the dissenting voices from within their community and are not ready to change their patronizing attitude towards their women. Unilateral divorce is wrong. Equality is the need of the hour and Muslim clerics must transform their approach and respect the rising consensus against triple talaq amongst their own community.

Triple talaq violates numerous women’s rights and promotes a social cultural hegemony over the women’s lives by subjugating their human rights. Not only does this old tradition violate many Constitutional rights, but it is also not in line with the UN human rights conventions.

However, before taking and implementing any crucial decisions, reaching a consensus among stakeholders -- in this case, Muslim women, men and clerics -- is important. The Indian government should avoid taking one sided decision which could unsettle the delicate fabric of a multicultural society which is already plagued with so many internal conflicts and divisions.

As far as the secular nature of Indian polity is concerned, India’s contextual secularism is able to accommodate progressive change and religious reformation as it has done so successfully in the past, and I believe the issue of Triple Talaq can also be settled amicably.

(The writer is pursuing his MSc. Human rights and Multiculturalism, University College of South East Norway)