Does India’s secularism provide solution to the Triple Talaq?
|By Amit Singh|
29 Oct, Oslo: India is a secular and multicultural country without provision of specific multicultural policy. However, due to diversity of religions and communities in India, 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 tripal talaq is a "legislative policy" thus, 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 .
Multicultural conflicts secular solutions – intervening in religious affairs
India is a multicultural country governed by so a secular constitution. Indian response in managing its cultural diversity and originating tension between secularism and religion has been influenced with Indian policy of recognition and policy 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 by history of sectarian conflict in British ruled India and Indian constitution is the only 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 sake of substantive values- in this case to protect human rights.
The kind of secularism India practice is not totally USA model where there is a strict separation between church and state rather, Indian model of secularism is contextualized to cater the multicultural needs of a very diverse nation. Indian contextual secularism as scholar Rajiv Bhargva refers it, intervene in the religious affairs of the communities, both majority and minority alike.
Indian style of Contextual Secularism is reflected in government policies, 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 government, in the matter of human rights and for social reformation, did intervene in the religious affairs.
However, arguments are made about secularism that democratic state must be expected to protect cultural diversity and the right of people to follow their own culture. This is why precisely Indian Constitution allowed minority 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 if fact, laws have passed banning bigamy among Hindu but not among some minority communities .
However, famous British scholar on multiculturalism, Bhikhu Parekh who has appreciated Indian constitution for accommodating diversity and plurality have asserted that 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 Bhargva also justifies government intervention in the 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.
However, one of concern is that intervening in the religious affairs of a religious minorities also open ways for manipulation from political parties as 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 affair is governed by their Personal Law Code. Scholar Bilgrami has questioned the constitutional protection for the “personal laws” of the Muslims in India, as such personal law restrict individual rights and autonomy. Bilgrami fear is justified in Khan v. Shah Bano Case (1985 SCR (3) 844) , where a Muslim women’s human rights were ignored by government just to respect Muslim personal laws and to appease minorities for political gains.
Interestingly, some scholar’s of multiculturalism empower minorities to the extent of ignoring the human rights of weaker member of their society including children and women. However, expert in multiculturalism, Chandran Kukathas believe minority community must respect the rights of its members who want to leave the group or to form a separate identity.
In the concerned case, some Muslim clerics are not respecting the dissenting voices from their community and are not ready to change their patronizing attitude towards their women. Unilateral divorce is wrong. Equality is the need of time and Muslim clerics must transform their approach and respect rising consensus against triple talaq among their own community.
Tripal talaq, does violate numerous women’s rights and promotes a social cultural hegemony over the Muslim women’s lives, patronize their human rights. Not only this old tradition violates many Constitutional rights, but also not in line with the UN human rights conventions.
However, before taking any crucial decision reaching a consensus among stakeholders- in this case, Muslim women, men and cleric is, important. Indian government shall 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 secular nature of Indian polity is concerned, India’s contextual secularism is able to accommodate progressive change and religious reformation as it had successfully in the past and I believe issue of triple talaq can also be settled amicably.
The Oslo Times International News Network