Why reform of some Islamic practices in line with Constitutional values is essential for an inclusive India
There should be absolutely no controversy, even among the conservative ulema and political/community leadership among Indian Muslims with their own vote-bank to cater to, on the framing of our argument which calls for reform to bring aspects of the practice of the Islamic faith in line with Constitutional values. The faith itself and its immutability or not is for believers to decide upon, as long as the debate for and against within the community is conducted legally, non-coercively and in a non-discriminatory manner. And this applies to all faiths, whether they be Abrahamic religions or Indic civilisational ways of life emanating from a Bharatiya antiquity. It is in this context that the Supreme Court, which in its landmark verdict of August 2017 held talaaq-e-biddat or instant triple talaq among Indian citizens to be ultra vires of the Constitution and, therefore, illegal in August 2017, in admitting a bunch of petitions challenging the legality of polygamy and nikaah halala among Indian Muslims must be seen. The Government of India, which has been issued notices by the apex court, has already indicated that it would support the plea of the petitioners and a Constitution Bench of the Supreme Court is scheduled to begin hearings on the matter.
While an imprimatur in the form of a verdict from a Constitution Bench if it decides to hold as illegal these — to betray our normative bias at the outset — clearly discriminatory practices which peg back the struggle for gender justice in India by a few centuries would be welcome, the fact is that the Constitution is clear. There can be no differential citizenship model in this country on the basis of faith, gender, class, caste or any other collective. The question the Supreme Court will essentially have to address is, in a sense, on the ambit of the right to freedom of religion (to practice, profess and propagate) and whether, if/when in conflict with individual rights (of women in the instant case) enshrined in the Constitution, the latter would, as in our view they ought to, prevail. Our sense, going by a reading of the triple talaq verdict and the reasoning therein, is that for any adult male Indian citizen regardless of faith having four wives simultaneously or insisting that a divorced woman who may want to get back with her former spouse first get married to another man, then consummate the marriage and subsequently arrange for a divorce (where again the man holds all the cards) or be widowed before she is allowed get married to her first husband again is a non-starter. But that is for the Supreme Court to pronounce on.
But even as we wait, it needs to be pointed out that after the Supreme Court declared instant triple talaq illegal, the Government introduced a Bill to make it a penal offence punishable with up to three years in jail for the husband which was passed by the lok Sabha where the NDA has a majority. But, such is the political pusillanimity,moral cowardice and intellectual bankruptcy of the so-called secular parties which have a majority in the Rajya Sabha that the Bill is still stuck in the Upper House with no prospect of it being enacted into law anytime soon. It is scary, how illiberal and misogynistic our secularists can be.