Conflicts pertaining to religion and law are essentially a discord between tradition and modernity. Modernity is based on the values emanating out of the Enlightenment, or the Age of Reason. That age can be said to have begun with the 1688 Glorious Revolution in England and peaked, a century later, with the French Revolution.
The French Constitution is an acute expression of this intellectual history. Indeed, all modern constitutions, including ours, are based directly or indirectly on the French ideals of constitutionalism, equality, liberty and fraternity.
The Enlightenment view of society – shaped in France by names such as Montesquieu, Voltaire, Rousseau and Diderot; in England by men such as Locke, in Scotland by Hume, and in Germany by Kant, among others – is rooted in rationality. The Enlightenment after all secured liberation from the tyranny of clericalism.
Khurshid’s book attempts to triangulate these values, popular morality and constitutional morality.
Before the Enlightenment, religion regulated law. Post-Enlightenment, the law will increasingly regulate religion. It is in this context that the case over triple talaq – the Muslim practice of divorce by uttering the Arabic word for divorce thrice – must be viewed.
The legal battle over triple talaq last year and the question over its constitutionality was a gripping one. Liberals and modernists argued against it, holding it discriminatory. Muslims party to the case too admitted that it was a “sin” but argued against interference in the so-called personal laws. Then, there were the obvious political overtones, particularly the specious majoritarian discourse that if Muslims wanted shariah, they had better go to Pakistan.
Khurshid’s book gets behind the Shayara Bano verdict, reproducing and dissecting portions of the minority and majority judgments of the five-bench verdict. The majority verdict had ruled that talaq-e-biddat (instant divorce) was unconstitutional and that there was no sanction for it in the Quran.
Khurshid’s book is essential reading for those wanting to know (a) the normative positions of Islam on marriage and divorce (b) the place of religion under our constitutional scheme (c) contexts in which religious traditions come into conflict with secular law and (d) how should Muslims view and deal with such problematic issues.
A more overarching theme is the book’s attempt to explore ways of reconciling Islam with modernity, and this is a crying need.
Western secularism, having been borne of the womb of the French Revolution, is based on the idea of sheer intolerance of faith. It is about banishing, and indeed, stamping out all potency of religion from public life. Indian secularism, somewhat oddly, is about giving equal opportunity and respect to all faiths, while the state itself avows no religion.
“Therefore, instead of keeping religion out of politics, we sensibly give equal respect to each religion,” Khurshid writes. This confirms the suspicion that the author, who is by all accounts a liberal democrat, doesn’t want to go so far as to address the problems created by the Indian Constitution’s ambivalence towards religion. Indian secularism’s tolerance of religion in public life, countenanced by the country’s politicians, needs a critical look now more than ever before. When religion shapes public policy – such as India’s ban on cow slaughter – modernism gets defeated.
Khurshid’s book recounts how he intervened in the triple talaq case, with a view to help resolve the case. But, like the Supreme Court, he shares the troubling consensus that “religion is an established dimension of our national life that is recognised by our Constitution”. It’s time to recognize that this has hollowed out our polity.
One finds Khurshid’s assertion that “religion inevitably must be factored into any constitutional calculus” problematic. In that sense, he is hardly capable of taking a radical stand on religion’s complete separation from public life, despite his larger progressive image.
Be that as it may, the author gives us erudite insights into how religion might be harmonised with a modern India’s political and legal framework. Khurshid believes in legal pluralism, which holds that in any society, there are more than one sources of law. It is, as the legal scholar John Griffiths states, a state of affairs in which behaviour or conduct is pursuant to one or more legal orders. And indeed, as Griffiths further states, it is an “inconsistent collage of overlapping parts”.
Therefore, Khurshid’s “considered opinion” is that defence of “personal laws on moral and constitutional grounds” is imperative. He is a modernist to the extent that any conflict between the essential demands of modernity and religion must be resolved. Khurshid has no doubts that an instantaneous, arbitrary, irrevocable and one-sided divorce isn’t acceptable either in the constitutional scheme or even Islam itself. It is an abhorrent practice invented later and both the Quran and Hadith enjoin Muslims to be “equitable” when it comes to talaq.
Khurshid admonishes, rightly, the All-India Muslim Personal Law Board which must learn to speak in a language in which it can be understood properly, rather than “alarming non-Muslims and forcing Muslims into submission”.
Matters of religion, Khurshid notes, often reach the courts in the context of Article 25 (right to religion) and 26 (freedom to manage religious affairs) as well as claims relating to Article 14-19 (fundamental rights). His written submissions before the court contained in the book have the seeds of resolution of one of the most complex problems: how to reconcile faith with secular laws. A must read for legal scholars and lay Muslims as well.