[I]t was submitted, that the pivotal issue that needed to be answered was, whether under a secular Constitution … Muslim women … could be relegated to a status significantly more vulnerable than their counterparts who professed other faiths—Hindu, Christian, Zoroastrian, Buddhist, Sikh, Jain, etc. (Attorney General of India, Shayara Bano v. Union of India Footnote 1)
1. Introduction
Proponents of secularism often describe their support for this form of governance in terms of the protections it provides against the excesses, dangers, and coercions of religious nationalism and bigotry. For example, the image of a harmonious India frequently gets juxtaposed against that of a fundamentalist Pakistan; the majoritarian perils accompanying Pakistan’s constitutional declaration of an “Islamic Republic”Footnote 2 are seemingly self-evident and in sharp contrast with the social peace and religious freedom promised by India’s “sovereign socialist secular democratic”Footnote 3 republic. In reality, however, the differences between secular and religious systems of governance are often overstated, with secularism’s anxious promises being in conversation with secularism’s observable failures. This article explores one recent and important instance of such secular failure, namely the high-profile Indian case of Shayara Bano v. Union of India. As will be demonstrated, this Supreme Court case concerning the legal legitimacy of a common Indian Muslim divorce practice—often referred to as “triple talaq”—animated sectarian and communitarian tensions in India and thereby imperilled the conjoined values of social peace and religious freedom commonly promised by secularism.
Any claim about a complex phenomenon like Indian secularism, or its failure, must proceed with caution. Accordingly, this article’s exploration of the secular failure embodied by Shayara Bano is not premised in an especially ambitious account of secularism. And, indeed, any broadly generalizable account of secularism is largely impossible given the complex genealogy of this practice in different places and times, including the deeply local conditions and dilemmas that have greeted secularism wherever and whenever there has been an attempt to implement it. In short, what may be considered secular in one place may be abhorrent to secularists in another place,Footnote 4 even if both places share certain histories and aspirations (rather than merely having haphazardly converged on a secularism vocabulary). Moreover, within India itself, there has been a long and contentious set of disagreements over the meaning of secularism, with liberal Nehruvian modes of secularismFootnote 5 being in prominent tension with illiberal Hindu nationalist articulations of secularism.Footnote 6
Given these intense disagreements about the meaning of secularism, this article’s goals are relatively modest and focused on explaining how the litigation, adjudication, and aftermath of Shayara Bano failed to achieve commonly articulated aspirations of secularism in India and elsewhere.
Social peace is one of those aspirations. Social peace is implicated in secular thought and practice in India, and beyond, in multiple ways. For example, historian Julia Stephens has explained how an alleged desire for social peace shaped articulations of secularism in colonial India, with key British officials “portraying Indians as having excessive religious sentiment … [and] emphasiz[ing] that only colonial institutions could act as rational, neutral mediators between Indian religious communities which, if left to their own devices, would be constantly in conflict.”Footnote 7
And historian Mithi Mukherjee has further argued that this colonial desire (or pretence) has been replicated by the post-colonial Indian state, noting that
[t]he imperial continuities in the Indian Constitution [of 1950] derived partly from the fact that it … derived its most essential features from the Government of India Act of 1935 …
…[and w]hat was most important about the discursive framework that anchored the Government of India Act … was the colonial construction that India was not a nation, but rather a heterogeneous collection of random communities locked in their irreconcilable conflicts with each other.Footnote 8
Further, legal scholar Jaclyn Neo has discussed how the importance attached to social peace is not just an aspect of Indian secularism, but is also present in contemporary Singapore, where a form of secularism—albeit not premised in or shaped by traditional liberal thought—nonetheless perceives a “need for peaceful coexistence of different religious groups under conditions of religious plurality.”Footnote 9
Religious freedom is another secular aspiration and, moreover, one conjoined to the value of social peace. Neo’s work contemplates the utility that individualistic religious freedom has for social peace in the Singaporean context.Footnote 10 However, we might think about the converse relationship as well, namely the social underpinnings of individual freedom. Indeed, the Constitution of India makes such a relationship clear, declaring in its preamble that “fraternity” is key to “assuring the dignity of the individual,”Footnote 11 and linking its religious-freedom provisions to the requirements of “public order, morality and health.”Footnote 12 In doing so, this Constitution makes explicit what other Constitutions elide, namely that liberal freedom is imagined and secured in dialogue with social reality or, even, social disappointment.
Despite their secular importance, neither social peace nor religious freedom is an easily identifiable result of Shayara Bano. Indeed, during the course of arguing its defence in Shayara Bano, a prominent Indian Muslim organization ended up engaging in sectarian modes of argumentation, whereby aspersions were cast on the Muslim bona fides of certain persons and communities. Other ongoing conflicts between different Muslim groups and schools of thought were also fuelled by the litigation of Shayara Bano. Further, in the course of deciding Shayara Bano, a religiously diverse set of Indian Supreme Court justices found themselves disagreeing along communal lines about either the necessity or ability of the secular state to “reform” Muslim family law. In short, echoing religion scholar Benjamin Schonthal’s conclusions about the constitutionalizing of religious disputes,Footnote 13 both the litigation and adjudication of Shayara Bano witnessed and sparked wary boundary-making between social groupings already suspicious of each other, rather than social peace. In the very least, it seems clear that this case’s litigation and adjudication betrayed the hope for “unity in diversity”Footnote 14 that the Attorney General of India’s arguments opening this article and found elsewhere in Shayara Bano suggested were important for India. Importantly as well, such disunity has imperilled—both constitutionally and otherwise—the possibility of religious freedom in India.
In addition to combing key judicial decisions, any thorough understanding of a jurisdiction’s “law” requires a canvassing of the social and political dynamics preceding, witnessed in, and resulting from litigation.Footnote 15 That being said, Section 2 of this article begins by explaining the technical legal questions presented in Shayara Bano and then also some of the diverse commentaries on these questions provided by the different justices hearing it. One of these questions concerned the legitimacy of triple talaq within Islamic jurisprudence itself, while others travelled further afield to consider the sources of legitimate Islamic legality within India both historically and contemporarily, and then also the role of the Constitution of India in all this. Section 3 moves outward from such legal technicalities to discuss how Shayara Bano increased Muslim sectarianism in India. Section 4 then highlights the religious make-up of the five-justice bench hearing this case—with there being one Sikh, one Muslim, one Christian, one Parsi, and one Hindu justice, each, on this bench—and, moreover, the ways in which this diverse bench not only generated multiple, disagreeing opinions in Shayara Bano, but also, in doing so, split along “predictable” communitarian lines.
To be sure, disagreement and disputation are facts of contemporary social life and necessary for mitigating any number of social and political ills—for example, sexism and patriarchy. This reality is discussed further in the conclusion, along with the unfortunate likelihood that the sectarianism and communalism animated by Shayara Bano will not so much remedy patriarchy as encourage mischievous majoritarian legal manoeuvring. Moreover, in this probable result, social divisions will be used to deprive (at least some) Muslims of important religious freedoms, thereby further dissolving any ostensible fundamental difference between secular governance and religious nationalism.
2. Legal questions and technicalities in Shayara Bano
The origins of the case that has become known simply as Shayara Bano v. Union of India were complicated. And, indeed, this eponymous case concerning Muslim personal law came about from the amalgamation of a number of different legal disputes—including one that found its genesis in a dispute about the Hindu Succession (Amendment) Act of 2005Footnote 16—into one omnibus litigation. This complex litigation initially involved many legal questionsFootnote 17 but then later became primarily about the legal legitimacy of triple talaq in India,Footnote 18 including the legitimacy of the (attempted) use of triple talaq by a Muslim husband, Mr Rizwan Ahmed, to divorce his Muslim wife, Ms Shayara Bano.Footnote 19
Triple talaq is the thrice pronouncement—in one sittingFootnote 20—of talaq by a Muslim husband against his wife, with the effect of immediate and irrevocable divorce. The history behind the legality of triple talaq in Islamic thought, both around the world and in India specifically, is relatively complex. For the purposes of the discussion here, it is sufficient to note that some Muslim men in India have historically and successfully used triple talaq to end their marriages. But, despite its use by Muslim men, triple talaq has been controversial because of the very sudden manner in which it leaves Muslim women without spousal support, and also because there are other ”slower” and ostensibly more humane forms of talaq and Muslim divorce available to terminate a Muslim marriage.Footnote 21 On this point, and in the aftermath of Shayara Bano, legal scholar Ratna Kapur aptly (and wryly) observed that although:
the Supreme Court set aside the practice [of triple talaq] … somewhat paradoxically, Muslim husbands still retain the unilateral right to get rid of their wives by pronouncing talaq over a period of a few months. This leaves us wondering—wherein lies the much hailed victory?Footnote 22
Nonetheless, there is still a widespread view—amongst Muslims and non-Muslims alike—that there is something particularly unseemly about triple talaq especially.
The Indian state has historically not gone out of its way to invalidate instances of triple talaq, however. This is a result, in part, of triple talaq having a significant Islamic legal pedigree—or, at least, a significant legal pedigree according to British colonial understandings of Indian Islamic law, and the post-colonial state’s adherence to those colonial understandings and the judicial precedents in which they are embodied.
Unsurprisingly, these colonial understandings of Islamic law (or Muslim personal law) came into dispute in Shayara Bano, where an important part of this case involved the Supreme Court revisiting a foundational precedent from the colonial period concerning the legal legitimacy of triple talaq. This case, Saiyid Rashid Ahmad v. Mt. Anisa Khatun,Footnote 23 was decided in 1932 by three lords of the Privy Council. While commonly known as a case concerning the Islamic legal legitimacy of triple talaq, the contending parties in this case were first and foremost preoccupied with the inheritance shares due to them from the estate of a Mr Ghiyas Uddin. In all this, Ms Anisa Khatun disputed the Islamic bona fides of a triple talaq pronounced against her by Mr Ghiyas Uddin and, as a result, argued that certain substantial shares of Mr Ghiyas Uddin’s estate were due to her as Mr Ghiyas Uddin’s “widow”Footnote 24 (rather than ex-wife) and also their “legitimate”Footnote 25 (rather than illegitimate) children. The Privy Council, however, disagreed with Ms Anisa Khatun and found that the triple talaq orally pronounced against her by Mr Ghiyas Uddin (and also enclosed in a written statement to the same effect)Footnote 26—albeit an “abominable”Footnote 27 form of Islamic divorce—“constituted an immediately effective divorce.”Footnote 28 As a result, Ms Anisa Khatun’s inheritance interests suffered grievously.
Between 1932 and 2017, there were a number of other cases implicating the legal legitimacy, in India, of triple talaq. These cases include a recent 2017 Kerala High Court case in which a Muslim husband tried to benefit from the argument that his previously pronounced triple talaq should, in fact, be considered invalid.Footnote 29 They also include the widely known and remarked-upon 2002 case of Shamim Ara v. Union of India.Footnote 30 Shamim Ara, however, did not plainly address the legal legitimacy of triple talaq specifically. To be sure, in Shamim Ara, the Supreme Court did endorse previous high-court judgments that had earlier disapproved of “instant” or “capricious” talaq,Footnote 31 and the court did also make a great deal of noise itself about the need for Muslim men’s exercise of talaq Footnote 32 to no longer be quick and unilateral, much less “reason-less.”Footnote 33 However, any reading of Shamim Ara that suggests that this judgment clearly addressed the issue of triple talaq simpliciter involves a misreading.Footnote 34
That being said, there was some question in Shayara Bano about whether or not the Supreme Court needed to address the conditions of Ms Shayara Bano’s divorce at all, or whether the essential question presented in Shayara Bano had already been dealt with in Shamim Ara. Ultimately, the Shayara Bano court split on the relevance of Shamim Ara, with most justices either clearly or obliquely articulating their belief that Shamim Ara had not settled the issue in front of the Supreme Court in Shayara Bano—whatever that precise issue may be.Footnote 35
In taking on the question of triple talaq in Shayara Bano, then, the five justices of the Supreme Court hearing this case identified multiple and different issues to address. These issues included whether triple talaq is actually countenanced by Islamic jurisprudence—as the Privy Council, in 1932, had so concluded—or whether this form of talaq is some sort of un-Islamic (perhaps “cultural”) innovation practised by certain “mistaken” Muslims.Footnote 36 Assuming that triple talaq has, in fact, been sanctioned (at least somewhat) by Islamic jurisprudence and can be considered a legitimate part of Muslim personal law in India, another major issue in Shayara Bano concerned the extent to which the Constitution of India allows (or even mandates) the state to intervene against personal law practices that violate constitutional norms (e.g. women’s equality).Footnote 37
In regard to this constitutional question, a corollary question important to many of the justices hearing Shayara Bano concerned the legal meaning and import of a well-known colonial-era statute governing Muslim personal law in India, namely the Muslim Personal Law (Shariat) Application Act, 1937.Footnote 38 The substantive portion of this Act reads as follows:
Application of Personal Law to Muslims—Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).Footnote 39
A fundamental question for the justices interested in the 1937 Act, then, was whether this colonial-era statute—assuming that its mention of talaq encompasses triple talaq too—had formally “legislated” the practice of triple talaq for the Indian state after the 1932 Privy Council case of Saiyid Rashid Ahmad v. Mt. Anisa Khatun (described above) had earlier upheld it judicially. This was an important issue for these justices because, under one view of things, a subordinate (and colonial-era) piece of legislation sanctioning inequitable practices can and should be easily declared unconstitutional under the terms of the equitable (and post-colonial) Constitution of India.
Other justices believed, alternatively, that the 1937 Act was intended to do something other than “bring into being” the numerous Islamic legal practices described by this Act—a point emphasized (in another context) by historian Julia Stephens and also made by a defendant party (the Jamiat Ulama-i-Hind) during the litigation of Shayara Bano Footnote 40—and that, as a result, triple talaq in India has owed its legal existence to something other than the 1937 Act. On this general view of things, the legal viability of triple talaq in post-colonial India is due to something like the “long” historical pedigree of triple talaq stretching back to the very early days of Islamic jurisprudence or, perhaps more simply, the persistence of pre-colonial (Islamic) Mughal legality in subsequent colonial and post-colonial regimes and eras in India. Towards the “long” historical view, Chief Justice Khehar, writing for himself and Justice Nazeer in Shayara Bano, argued that:
Muslim “personal law”—“Shariat,” in our view, is a matter of “personal law” of Muslims, to be traced from four sources, namely, the Quran, the “hadith,” the “ijma” and the “qiyas.” None of these can be attributed to any State action.Footnote 41
However, if it is the case that the viability of triple talaq in India has been due to something other than recent state action (e.g. the legislation of the 1937 Act), then the above questionFootnote 42 relating to the (potential) immunity of personal laws from constitutional fundamental rights review still comes into play. Indeed, Justice Nariman, writing for himself and Justice Lalit in this case, summarized this particular legal question as follows:
The neat question that arises before this Court is … whether the 1937 Act can be said to recognize and enforce Triple Talaq as a rule of law to be followed by the Courts in India and if not whether [the historical precedent of] Narasu Appa … which states that personal laws are outside Article 13(1) [and the jurisdiction] of the Constitution is [in fact still] correct in law.Footnote 43
The five different justices hearing Shayara Bano came to different conclusions about each of these legal issues and, indeed, even the basic relevance of some of them. Three opinions were issued by these five justices, resulting in what might be (generously) described as a 2–1–2 split. Because of this decisional complexity, it is difficult to distil a precise holding from this case. That being said, after the Supreme Court’s issuance of its multiple opinions in Shayara Bano, it appeared to many observers that something had changed about the legal status of triple talaq in India.Footnote 44
Whether the different opinions issued by the court can truly be read to support such a conclusion is open to debate and explored further below. That being said, the meaning of a legal case can surely take on a life of its own that bears only a loose relation to what is written on the pages of judges’ opinions. As a result, sifting through the different justices’ opinions in Shayara Bano for points of agreement that can be collated into a “holding,” or points of disagreement that forestall the same—while interesting—may be beside the point. Rather, it may be more important that, in Shayara Bano, different opinions were issued by different justices of different religious backgrounds who agreed and disagreed with each other in communally intriguing (if also distressing) ways. Before coming to this discussion on the communal adjudication and conclusions of Shayara Bano, however, the next section focuses on the litigation phase of this case and, in particular, the Muslim sectarian divisions sparked by it.
3. Muslim sectarianism
Muslim sectarianism was on display in Shayara Bano in at least three different ways. The first was the splitFootnote 45 between “feminist” and “non-feminist”Footnote 46 Muslims evident in this case. This split was perhaps best captured in the name of one of the cases consolidated into the Shayara Bano omnibus litigation, namely that of Muslim Women’s Quest for Equality v. Jamiat Ulma-J-Hind. As legal scholar Saptarshi Mandal reports,Footnote 47 this starkly titled case was the one described aboveFootnote 48 that found its genesis in an earlier and unrelated dispute about the Hindu Succession (Amendment) Act of 2005. In addition to “Muslim Women’s Quest for Equality,” numerous other Muslim women’s organizations and advocates were also involved in the Shayara Bano litigation, adopting a variety of stands on how best to end the practice of triple talaq in India (or at least its legal recognition by the state).Footnote 49
Opposing these Muslim women’s organizations and advocates were prominent “establishment” Muslim organizations, including the well-known All India Muslim Personal Law Board (AIMPLB) and the Jamiat Ulama-i-HindFootnote 50 (JUH). The JUH is less well known than the AIMPLB but has played a significant role in Indian politics since its founding in colonial India during the early twentieth century. During the lead-up to India’s independence in 1947, the JUH was a leading voice working not only for Indian independence from British rule, but also expressing its deep scepticism of then efforts by rival Indian Muslim organizations and parties to convince British colonial officials to partition India, upon independence, into Muslim-majority Pakistan and Hindu-majority India. Since those heady times, however, the Jamiat Ulama-i-Hind has lost a great deal of its progressive sheen. As a result, the existence of a (component) case called Muslim Women’s Quest for Equality v. Jamiat Ulma-J-Hind is seemingly meant to suggest that the Shayara Bano litigation embodied, like so many times before,Footnote 51 a dispute between feminist Muslims and patriarchal Muslims.
The second way in which Muslim sectarianism was evident during the litigation of Shayara Bano was the constant emphasis during that litigation of how triple talaq is a practice sanctioned by majority elements in Sunni Hanafi jurisprudence, but not by other schools of Islamic legal thought. Notably, majority jurisprudence within Shi‘a Islamic thought (i.e. the Ja‘afari school of jurisprudence) does not countenance triple talaq, nor does the (minority) Ahl-e-Hadees group within the Sunni Hanafi school of jurisprudence. This latter point was emphasized by the AIMPLB at one point in the litigation when:
[i]t was the submitted on behalf of the AIMPLB, that the views of persons who are not Sunnis, and those who did not belong to the Hanafi school, could not have been validly relied upon [by the Court vis-à-vis triple talaq].…[For example, r]eference to Tafsir Ibn Kathir was stated to be improper, as he belonged to the Ahl-e-Hadith/Salafi school, which school does not accept triple talaq.…It was accordingly asserted, that supplanting the views of other schools of Sunni Muslims, with reference to the practice of “talaq-e-biddat” by the proponents of the Hanafi school, and even with the beliefs of Shia Muslims, was a clear breach of a rightful understanding of the school, and the practice in question.Footnote 52
Picking up on these sectarian differences, all of the justices mentioned them in one way or another in their various opinions. For example, Justice Nariman (writing for himself and Justice Lalit) observed towards the beginning of his opinion that “[i]nasmuch as the Muslims in India are divided into two main sects, namely Sunnis and Shias, and this case pertains only to Sunnis as Shias do not recognize Triple Talaq, it is important to begin at the very beginning.”Footnote 53 Justice Nariman’s opinion then preceded to tell the seventh-century history of succession conflicts within the nascent Muslim community, and the beginnings of a long-standing split between Sunni and Shi‘a Muslims that is still evident today.Footnote 54 The relevance of this history for the rest of Justice Nariman’s and Justice Lalit’s opinion is not obvious.
Third, and perhaps most troubling, were the tactics adopted by the AIMPLB in working to disparage interpretations of Islamic legal sources that disapprove of triple talaq, with the AIMPLB often characterizing the authors of these interpretations as “Ahmadi” (or similarly, but using a much more negative term, “Qadiyani”Footnote 55). The Ahmadi “sect” was founded in the late nineteenth century by an Indian Muslim by the name of Mirza Ghulam Ahmad. From their initial organization, Ahmadis have been controversial due to claims made by Mirza Ghulam Ahmad concerning his prophet (or prophet-like) status—whereas the vast majority of Muslims believe that Muhammad is the last of the prophets. Ahmadi views vis-à-vis Ahmad’s status changed over time, but controversies around them only accelerated in South Asia during the twentieth century. These controversies took a particularly ominous turn in Pakistan from the 1970s onwards.Footnote 56 While Ahmadis in India have been spared the excesses of anti-Ahmadi sentiment in Pakistan (and elsewhere), the feelings around them in India are also charged and prone to abuse.
With regard to this particular sectarian tactic, Chief Justice Khehar (writing for himself and Justice Nazeer) observed how the AIMPLB
pointed out, that the interpretations relied upon on behalf of the petitioners, were mostly of scholars who did not belong to the Sunni faith, and were therefore irrelevant, for the determination of the interpretation of the believers and followers of the Hanafi school of Sunni Muslims. One of the scholars relied upon, according to learned senior counsel [Mr Kapil Sibal, for the AIMPLB], was a disciple of Mirza Ghulam Ahmed … who declared himself to be the Prophet, after the demise of the Prophet Muhammad. It was pointed out [by senior counsel] that [Ahmed’s] disciple was Mohammed Ali. And, the interpretations relied upon by different High Courts … in recording their conclusions, were based on views attributed to Mohammed Ali. It was submitted, that Mohammed Ali is not recognized by all Muslims, and as such, it would be a travesty of justice if his utterances were to be relied upon and followed, contrary to the faith of Muslims (—especially Muslims belonging to Hanafi school).Footnote 57
While the three kinds of Muslim sectarian splits animated by the litigation in Shayara Bano and identified here are quite worrisome in some respects, in some instances—and as the conclusion will further mention—they could be helpful in moving forward. Regardless of how one evaluates them, these sectarian splits are also likely unavoidable in the present moment.
4. Secular communalism
In many ways, the Shayara Bano case also presented an unavoidably communal set of questions and issues from the outset. This inevitability arises because of the historical presence and contemporary intensifying of a conjoined Hindu nationalist and secular politics in India, and the ways in which a variety of Muslim legal and social practices have been unfairly marked by this hybrid politics as specifically problematic. Moreover, this kind of marking has been a key part of not just politics in India for the past several decades, but also judicial decision-making.
For example, in the well-known 1995 Supreme Court case of Smt. Sarla Mudgal v. Union of India,Footnote 58 concerning whether or not married Hindu men—who converted to Islam, and who then took a second wife (as permitted to Muslims by Indian Muslim personal law)—were subject to the Indian Penal Code’s criminalization of bigamy, the Supreme Court affirmed the legal propriety of applying the Indian Penal Code’s anti-bigamy provisions to “Hindu-cum-Muslim”Footnote 59 men. Yet, a simple application of judicial precedent to the facts of a contemporary complication arising from religious conversion in India was not accomplishment enough for the Supreme Court in this case. Instead, the court here also decided to lament the very existence of India’s personal law system and the lack of a uniform, non-religiously differentiated family law embodied by this system. Moreover, the court provocatively placed the blame on Indian Muslims for this pluralistic legal situation, echoing common Hindu nationalist accounts of Muslims’ supposedly unique intransigence about maintaining their own personal law, describing this situation in the following terms:
The personal law of the Hindus, such as relating to marriage, succession and the like have all a sacramental origin, in the same manner as in the case of the Muslims or the Christians. The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, some other communities would not, though the Constitution enjoins the establishment of a “common civil Code” for the whole of India.Footnote 60
Echoing such judicial Hindu nationalist-cum-secular politics in Shayara Bano itself, the Attorney General of India characterized the question presented by Shayara Bano in the following terms:
[I]t was submitted, that the pivotal issue that needed to be answered was, whether under a secular Constitution … Muslim women … could be relegated to a status significantly more vulnerable than their counterparts who professed other faiths—Hindu, Christian, Zoroastrian, Buddhist, Sikh, Jain, etc.Footnote 61
As anthropologist Srimati Basu has observed, however, “something like ‘the secular State saving Muslim women from Muslim men’, has been a hallmark of post-1990s case law [in India].”Footnote 62 The Attorney General’s “concern” for Muslim women in Shayara Bano, then, has to be contextualized in the 1990s-onward history of judicial politics and rhetoric surrounding secularism in India that Basu describes.
Such judicial politics and rhetoric were evident before the 1990s, too. For example, in the infamous Shah Bano case,Footnote 63 concerning the parameters of post-marital spousal-support obligations of Muslim men towards Muslim women, and decided in 1985, the Supreme Court of India also exhibited “secular solicitude” for Muslim women—albeit a solicitude with suspect intentions or, at the very least, one paired with derision for Islam more broadly. In the course of deciding Shah Bano, a five-justice bench of the court—composed entirely of Hindu justices—took on for itself the task of interpreting Islamic family law, opining that nothing in it forbade the state from making a Muslim man pay indefinite maintenance to his divorced wife who is “unable to maintain herself.”Footnote 64 Moreover, the Hindu bench’s controversial interpreting of Islamic law occurred alongside the same court bench making patronizing observations about Islam. For example, the opening paragraph in this case included the following objectionable remarks: “[I]t is alleged that the ‘fatal point in Islam is the ‘degradation of woman’. To the Prophet is ascribed the statement, hopefully wrongly, that ‘Woman was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives kindly’.”Footnote 65
Intense protests greeted the Supreme Court’s Shah Bano decision, and this poorly executed decision has cast a long shadow over the court in subsequent decades and its efforts to be seen as a court immune from majoritarian or communal prejudice. For deciding the explosive legal and social issues surrounding triple talaq 32 years after Shah Bano then—and by way of contrast with Shah Bano’s five-Hindu bench—the Supreme Court in Shayara Bano formed a five-justice bench that remarkably (and quite improbably) included one Sikh justice, one Muslim justice, one Christian justice, one Parsi (or Zoroastrian) justice, and one Hindu justice.
However, if the goal of the composition of the Shayara Bano bench was to achieve a pan-communal, and hopefully unanimous, statement about the constitutional limitations on (Muslim) personal law in India, the Supreme Court failed to achieve this goal. And, indeed, quite spectacularly, the five justices deciding this case split amongst themselves in a 2–1–2 manner—at best—leaving observers not so much with a clear Shayara Bano rationale or precedent, but rather a demonstration of a religiously and communally fractured Indian Supreme Court.
For example, the Supreme Court justice “representing” India’s Muslim minority and the Supreme Court justice “representing” India’s Sikh minority wrote together and took the least confrontational stance towards triple talaq and widespread understandings of Muslim personal law allowing this divorce practice. The “Muslim position” on the relative inviolability of Muslim personal law is perhaps self-evident. With respect the “Sikh position,” many Sikhs have been uncomfortable with the long-standing practice of Sikhs (and Jains) being forced to adhere to Hindu personal law in India and, as a result, have worked for the legislation of their own Sikh family-law code.Footnote 66 In short, vocal voices within both of these minority religious communities have been interested in the maintenance or creation of community-defined personal law in India, and are sceptical of efforts to legislate a (likely Hindu-majoritarian) uniform family-law code for every Indian. For these two particular justices, then, as objectionable as triple talaq may be, it was a matter of Muslim family law and, hence, the Supreme Court, on its own, could not interfere with it. In Chief Justice Khehar’s words (writing for himself and Justice Nazeer):
Based on the submissions advanced on behalf of the AIMPLB … it was sought to be emphasized, that such complicated issues relating to norms applicable to a religious sect, could only be determined by the community itself.…
…Having given our thoughtful consideration … we have no other option, but to accept the contention of learned senior counsel appearing on behalf of the AIMPLB, and to accept his counsel, not to enter into the thicket of determining … whether or not “talaq-e-biddat”—triple talaq, constituted a valid practice under the Muslim “personal law”—“Shariat.”Footnote 67
Conversely, the justice “representing” India’s Hindu majority and the justice “representing” India’s Parsi micro-minority took the most radical stance, declaring as unconstitutional the legal framework allegedly permitting triple talaq. The “Hindu position” on the (in)violability of minority communities’ personal laws is, again, perhaps self-evident. And, while the “Parsi position” suggested and ascribed here may be surprising, legal historian Mitra Sharafi’s work has demonstrated the distinct legal politics of India’s Parsi minority, and the ways in which this minority community historically worked in tandem with (rather than against) colonial legal institutions.Footnote 68 In the current moment, and co-operating to uphold the supremacy of the Constitution vis-à-vis personal law in India, these two justices declared:
it is clear that [triple talaq] is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. In our opinion, therefore, the 1937 [Muslim Personal Law (Shariat) Application] Act,Footnote 69 insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) [of the Constitution of India] and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.Footnote 70
Or, as numerous commentators (erroneously) paraphrased this two-justice opinion—and also the “larger” Shayara Bano “decision”—it declared triple talaq to be “unconstitutional.”
The justice “representing” India’s Christian minority wrote for himself and took a fairly mild approach, saying, essentially, that there was actually nothing to be done or decided in this case because the Supreme Court’s Shamim Ara precedent had already decided the issue. In the words of Justice Joseph:
What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Therefore, the simple question that needs to be answered in this case is only whether triple talaq has any legal sanctity. That is no more res integra. This Court in Shamim Ara v. State of UP … has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore … Shamim Ara is the law that is applicable in India.
… Fortunately, this Court has done its part in Shamim Ara. I expressly endorse and … reiterate the law declared in Shamim Ara.Footnote 71
Moreover, Justice Joseph explicitly disagreed in his opinion with Justices Khehar and Nazeer that triple talaq should be considered an “integral” part of Muslim personal law in India or, even if it was, that it should receive constitutional immunity on that basis.Footnote 72 Crucially as well, Justice Joseph disagreed with Justices Nariman and Lalit that the Muslim Personal Law (Shariat) Application Act, 1937 was “responsible” for triple talaq in IndiaFootnote 73; Justice Joseph thus implicitly distanced himself from the line of the reasoning that was fundamental to the two-justice “majority” opinion in Shayara Bano. Indeed, per this “majority” opinion, if the proper interpretation of the 1937 Act was a (or the) fundamental question of Shayara Bano, then Justices Nariman and Lalit were distinctly in the minority—not the majority. More broadly, because of the obliqueness of Justice Joseph’s opinion to the Khehar–Nazeer opinion, and also the Nariman–Lalit opinion, this one-justice opinion in Shayara Bano could be read as a kind of abstention in this case. Under this interpretation, the Supreme Court split in a 2–0–2 vote in Shayara Bano, rather than a 2–1–2 vote (much less a 3–2 vote).
In any event, in arguing that this five-justice bench of the Supreme Court split along “predictable” lines, I am not trying to suggest any essentiality to religious identities or positionalities in India or elsewhere. Indeed, as the discussion of Muslim sectarianism above laid bare, within any single religious formation, there are often intense disagreements about who belongs and who does not, and also the “correct” substantive position on any number of matters. As a result, areas of overlap and convergence between different “factions” of “different” religious groupings often emerge. More concretely, “liberal” Muslims do occasionally find themselves in at least occasional political agreement with “conservative” Hindus (i.e. Hindu nationalists) in the present moment. Conversely, and historically, “conservative” Muslims were in broad agreement with “liberal” Hindus on the inadvisability of carving an independent, Muslim-majority Pakistan out of colonial India upon independence from colonial rule in 1947.Footnote 74 There are similarly significant points of disagreement within and convergence across India’s Sikh, Christian, and Parsi communities.
That being said, it appears that the intent behind the statistically improbably, multifaith composition of the Shayara Bano bench itself was to achieve a “secular statement” on the legal treatment of Muslim women that would not have the whiff of a destabilizing Hindu majoritarianism and nationalism. And this intent is neither surprising nor necessarily lamentable. Indeed, a great deal of work—engaged in by judges and scholars alike—attempts to portray one of the important functions and contributions of courts as involving the impartial adjudication of disputes between conflicting parties. Martin Shapiro’s work on courts in comparative and political perspective,Footnote 75 for example, has astutely observed the “permanent crisis”Footnote 76 of legitimacy that modern state courts find themselves in, and the ways in which self-regarding claims about judicial neutrality and impartiality are one strategy deployed by courts to mitigate their popular illegitimacy. Moreover, if unbiased and dispassionate adjudication is one of the important functions of courts generally, this judicial impartiality takes on heightened importance particularly within secular regimes (such as India), where courts are often understood to be required to favour no faith whatsoever. While this may or may not require something called the “separation of church and state,” it does ostensibly require courts to treat religiously diverse litigants as legal equals in disputes arising between members of different religions.
In Shayara Bano, however, “secular justice” did not deliver five different justices from five diverse religious communities coming together to commonly declare an “obvious” and “religiously impartial” decision, but rather resulted in a set of divided and communal opinions that were both predictable in their positions, if also distressing in that predictability.
5. Conclusion: a secular failure
Shayara Bano did not quiet the debate surrounding Muslim personal law in India, or lead to better relations between Hindus and Muslims in India, or lead to Muslim consensus on who should or should not be considered a Muslim. By way of contrast, the aftermath of this prominent case has witnessed parliamentary efforts to incarcerate Muslim men if they continue to pronounce triple talaqs,Footnote 77 even though such pronouncements allegedly have no legal significance after Shayara Bano. This aftermath has also witnessed the re-election of a Hindu nationalist government with decidedly few sympathies for Muslims, and continued “churning”Footnote 78 within Muslim communities themselves. It is difficult to diagnose within these and other recent developments the social peace or robust religious freedom ostensibly desired by secular governance.
Of course, not all of these developments can be laid at the footstep of the Supreme Court, and not all of them are altogether lamentable or even avoidable. Social disagreement is a fact of human life and, without substantial space for robust and spirited disagreement, many political and legal movements for social justice would not have the tools necessary for protest, much less success. That being said, a thin line separates social disagreement and cultural war-making—and, then too, civil war. Unfortunately, Shayara Bano did more to encourage bitter disagreement than it did insightful debate, and this too in a time when the Supreme Court of India is facing more than its usual share of institutional crises.
Despite all of the problems accompanying the litigation and adjudication of Shayara Bano, the Supreme Court of India will surely be asked yet again to adjudicate on Muslim personal law in the future, and Shayara Bano will surely serve as some sort of precedent. It remains to be seen what kind of precedent Shayara Bano will be. However, surely one option will be to see in this case the opportunity for majoritarian mischief-making by religious nationalists. On this view of things, the lesson of Shayara Bano is that all it takes to overturn or illegitimate some minority personal law practice or religious freedom is for social actors to identify (or create) a sectarian split in that minority about the practice or freedom for a dominant minority (at the minimum) on the Supreme Court to side with its favoured sect, and for legal observers and commentators to then pronounce this Supreme Court minority victorious.
Indeed, with regard to Shayara Bano, there already have been largely successful attempts in both journalistic and academic commentary on this case to nominate the minority Shayara Bano opinion signed by the two most majoritarian-identified justices as “the” Shayara Bano decision. As a result, one might say that a minority won in Shayara Bano, but not minority rights. Moreover, social peace and religious freedom lost. And, for this reason, Shayara Bano can be understood as a secular failure.
Acknowledgements
The author thanks Jaclyn Neo and Arif Jamal for the invitation to visit the Center for Asian Legal Studies at the National University of Singapore (NUS) Faculty of Law during December 2018, where this paper was first presented as part of a conference on “The Law and Politics of Freedom of Religion in Asia” co-sponsored by NUS and Brigham Young University’s International Center for Law and Religion Studies.
