Article by Deepanshu Mohan on "Triple talaq: a test case for religious pluralism in India?" - East Asia Forum

November 11, 2016 | Deepanshu Mohan

Indian Prime Minister Narendra Modi recently broke his silence on the ‘triple talaq’ controversy, consolidating his government’s position to protect the fundamental rights of Muslim women. While the enforcement of constitutional rights is the new dharma of Modi’s political institutions, the Prime Minister’s interjection to some (like All India Muslim Private Law Board) represents a personal attack on the Muslim community’s freedom to practice their religion.
On 7 October, the government filed an affidavit in the Supreme Court stating that the practice of triple talaq is not an ‘essential religious practice’ because it violates the fundamental right of equality and women’s dignity, which are safeguarded by Article 14 and 21 of the Indian Constitution.

From a legal perspective, the practice of triple talaq — where under Sharia law, a man can divorce his spouse by saying the word talaq three times — has been contested on the grounds of whether the practice qualifies as an ‘essential religious practice’ under Article 25 of the Indian Constitution.
In this regard, the Indian Supreme Court will need to decide to what extent it is fair to interpret triple talaq as an ‘essential religious practice’ and if the practice contradicts the court’s aim to provide protection against the violation of other fundamental rights (Article 14 and 15 of the Indian Constitution). How the Supreme Court rules on this issue may affect its institutional credibility and legitimacy within minority communities in India.
To understand the right to freely profess, practice and propagate a religion, the Indian Supreme Court usually uses an ‘essential religious practice’ test. The essential practice test helps the Court decide whether a religious practice is eligible for constitutional protection, ‘adjudicate the legitimacy of legislation for managing religious institutions’ and judge the extent of independence that can be enjoyed by ‘religious denominations’.
The test in most cases judges a given practice based on its historical entrenchment and validity or its reference to a core religious text. Scholars like Ronojoy Sen argue how the Indian Supreme Court has used the ‘essential religious practice’ doctrine in the recent past to ‘rationalise’ a form of high-Hinduism and delegitimise some Hindu practices as superstition.
The Supreme Court may reject the claim of the All India Muslim Personal Law Board (currently contesting the government’s recent petition) to identify triple talaq as an essential Muslim religious practice. In the case of Narasu Appa Mali, the Bombay High Court held that personal laws cannot be tested under Part III of the Constitution (which includes Articles 12–35).
Article 25 of the Indian Constitution clearly provides that ‘Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion’. Even if personal laws fall within the scope of Article 25, they would be ‘subject to other provisions of this Part’ and can in no way violate any of the other clauses — especially Articles 14, 15 and 21.
It is worthwhile going back to the Constituent Assembly debates held during the creation of the religious freedom clauses and examine constitutional architect Bhimrao Ramji Ambedkar’s statement that ‘The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill … It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion’.
Marriage, like the laws relating to succession, may belong in the domain of personal law. But as Ambedkar points out, ‘laws related to tenancy or succession’ were never supposed to read under Article 25 or 26. In this case, the Indian Supreme Court is likely to discredit triple talaq as an essential religious practice while probably acknowledging it as a customary, secular practice. The Court can only protect a practice so long as it does not infringe on any individual’s other fundamental rights or violate state interests as stated in Article 25.
At a time in India when majoritarianism is rising at the cost of minority interests, it is interesting to isolate certain political events from those targeting social reform. It is important for the Indian state to undertake social reform that upholds the rights and dignity of an individual, rather than surrendering to the coercion and subjugation of medieval interpretations of the law.
Deepanshu Mohan is Assistant Professor of Economics and the Assistant Director of the Centre for International Economic Studies, OP Jindal Global University.