Monday, August 28, 2017
A Week to Remember
My reflections on a week on three important judgments.
Barely six days after India celebrated its 70th Independence Day, two Supreme Court ruling and one by a lower court made for an unforgettable week.
On August 22, a five-judge bench of the Supreme Court gave its much-awaited ruling in what is known as the Triple Talaq case. Five Muslim women who were divorced through the practice of talaq-e-biddat, or triple talaq whereby a Muslim man can say the word 'talaq' three times in a row to divorce his wife, and several women's organisation including the Bharatiya Muslim Mahila Andolan (BMMA) appealed to the court to declare the practice unconstitutional because it was discriminatory towards women. The case became high profile because unlike other cases of Muslim women who had appealed against this practice, this was the first time that several individuals as well as organisations representing Muslim women came together to challenge this 1400-year-old tradition. It is followed by Sunnis belonging to the Hanafi sect who constitute the majority of Muslims in India. In at least 20 other Muslim countries, such a form of divorce is not recognised.
In three separate judgments that partly overlapped and were partly contradictory, this one particular form of divorce followed by Muslims was discussed. The judges had to decide whether it was unconstitutional, in that it went against fundamental rights. Two judges, Justice R. F. Nariman and Justice U. U. Lalit held that it was. They stated: "It is clear that this form of talaq is manifestly arbitrary (emphasis mine) 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."
A third judge, Justice Kurian Joseph, also struck down the practice as illegal but not unconstitutional. He found it illegal on theological grounds and stated:
"What is held bad in the Holy Quran cannot be good in Shariah and, in that sense, what is bad in theology is bad in law as well."
These two judgments together are the majority judgment. Hence, the practice of triple talaq is now illegal in India.
The minority judgment by Chief Justice J. S. Khehar and Justice S. Abdul Nazeer, took a very different line when they argued that personal law was essentially part of religion. And as Article 25 guaranteed freedom of religion, the courts could not decide on the content of these laws. If there was to be any change, it had to be brought in by Parliament. They recommended that triple talaq be banned for six months and within that period, the government should enact a law that would ban it.
As one can imagine, this judgment is likely to be dissected and discussed for a long time to come as it has many layers within the arguments set out in the judgement.
I am giving below links to some of the articles that I think are particularly useful in understanding different dimensions of this ruling and how it is likely to play out in the future.
The Indian Express was probably the best amongst newspapers in the articles it carried on the judgment within a day of the ruling. That itself was something of a feat given a tight news cycle.
Also always useful to understand complex judgments is the blog maintained by a lawyer like Gautam Bhatia, who is quicker off the mark than most of the media in setting out the important issues to flag in such judgments. He did just that in the Triple Talaq judgment.
Columnist Pratap Bhanu Mehta argued that this was only a small step forward and not "historic" as the government and others were claiming it to be and that the court had failed to hold constitutional values over religious belief and practice.
Also on the same day, Indian Express carried a piece by Faizan Mustafa, the Chancellor of NALSAR law university in Hyderabad that made another set of important observations.
Also useful was the editorial that day in Indian Express that commended the plurality in the judgment saying that it left space for reform. The editorial in Economic & Political Weekly made a similar point.
While Muslim women individually, and their organisations, welcomed the verdict even though the practice had been held unconstitutional as they had demanded by only two of the five judges and there was no mention in any of the judgments about gender discrimination, the Muslim clergy were quick off the mark in condemning the ruling and seeing in it interference in Muslim personal law.
Jyoti Punwani, who has kept close track of developments within the Muslim community for decades, dating back to 1985 when a 62-year-old divorcee from Bhopal, Shah Bano, won her case in the Supreme Court for maintenance, reported on the response of the conservative elements within the Muslim community.
Barely had we got our heads around the Triple Talaq judgment when the Supreme Court delivered what is a "historic" judgment in every sense of the word, that relating to privacy. A nine-judge bench was unanimous that privacy is a fundamental right guaranteed to every citizen of India.
Again, as in the Triple Talaq judgment, there are several critiques of the judgment but what is clear is that the clarity with which this assertion has been made will not have far-reaching repercussions on many laws and judgments. Of immediate interest is the case concerning the use of Aadhar by the government beyond the stated purpose of ensuring that people get access to the welfare schemes to which they are entitled. The ruling on that has yet to come.
As I write this, there are still many comments and analyses in the newspapers and digital platforms on this judgment. Once again, Indian Express stood out for the range of comment it provided within a day of the ruling.
In his article on the judgment, Alok Prasanna Kumar writes:
"The right to privacy is not just a common law right, not just a legal right, not just a fundamental right under the Constitution. It is a natural right inherent in every individual. This, in sum, is the law laid down by a nine-judge bench of the Supreme Court of India in K. Puttaswamy v Union of India. This finding of the Supreme Court has not come out of the blue. It is the inevitable conclusion of steady developments in the law in the last three decades where courts across the country, not just the apex court, have said that the right to privacy, to choose, to be free of unwanted intrusion and to determine what happens to their information, is a fundamental right under the Constitution. The judgment has consolidated the development of the law into a grand judgment of six concurring opinions that definitively lays down these principles."
Kumar also maintains a blog, which is useful during such weeks when you are trying to get your head around these judgments. Have a look as he covers this extraordinary week.
Veteran lawyer and former attorney general of India, Soli J. Sorabjee provided another useful summary of the judgment in the Indian Express. He wrote: "To my mind, the most outstanding feature of the judgment is its recognition of the right to dissent and the necessity to practice tolerance."
Read also Gautam Bhatia on the privacy judgment. He was one of four young lawyers who argued the case. Hence his analysis is particularly useful.
The Indian Express carried a full page on August 28 with a virtual A to Z on privacy that is also worth a read. Faizan Mustafa, who had earlier commented on the triple talaq judgment, also wrote about the privacy judgment in Indian Express.
I will not go into details on this judgment, as it requires more study and discussion. But the links given above have been very useful.
And barely had we recovered from these important judgments when a court in Panchkula on the outskirts of Chandigarh announced on Friday, August 25 that the head of the Dera Sacha Sauda, Ram Rahim Singh had been guilty of rape. This was in response to a case filed in 2002. That's how long some cases take in India. Calling the process interminable would be a gross understatement.
In the build up to the judgment, thousands of his followers streamed into Panchkula and Chandigarh and the administration just sat on its hands. They parked themselves on the roads, on pavements, on open grounds, virtually anywhere in the city. Yet, the Haryana government looked on and allowed people with iron roads and material to make petrol bombs to assemble outside the courtroom. These followers freely spoke to journalists and told them how they would not accept a guilty verdict because to them the man was equivalent to god. Yet, the Chief Minister of Haryana, M. L. Khattar, who was seen publicly with Ram Rahim on August 15, did not find reason to evacuate the areas around the courthouse.
When the guilty verdict was pronounced all hell broke loose. Rahim's devotees went on the rampage. They attacked journalists, overturned and burnt OB vans, burnt cars and buses parked on the roads, attacked shops, went into residential areas and began entering houses. All this while, the law enforcement machinery appeared paralysed.
When finally it did move, after the media played out the mayhem on the roads, the police shot into the crowd killing an estimated 38 people and injuring many more.
As I write this, Ram Rahim has been sentenced to 10 years in prison. The sentence was pronounced in a court in Rohtak where no one has been allowed to assemble. But in neighbouring Sirsa there is already trouble.
So how have we come to this pass where self-proclaimed godmen, included those charged with rape, are protected by the state and their poor followers, most of them lower class and caste people who derive some comfort from this attachment, are shot down by the same state.
Everyone watched with amazement when this convicted rapist was driven in a convoy to a helicopter that evacuated him to Rohtak jail in the company of his adopted daughter with the unlikely name of Honeypreet Insan.
This again is a subject that we will have to discuss more. What is it that attracts thousands and lakhs of people to such men, and sometimes women? Why do politicians of all hues flock to them and use them to get votes? What does all this say about our democracy and our system?
The articles are still appearing on this but here are two that I found were questioning in the right way. It is much too easy to come to instant and sweeping conclusions in this age of social media. But we need to look more closely and think more deeply about why ordinary people of all kinds get attracted to different cults.
In The Hindu, Shiv Visvanathan analyses why people are attracted to such cults. He suggests that the entire phenomenon has to be viewed outside the upper-middle class lens. He writes:
"Imagine doing a human indicators study of these ashrams, comparing them with enclaves where the government has conducted its welfare projects. If these groups are evaluated on the ideas of community, solidarity and well-being, they will probably receive a better rating. So, is the secular the only idiom of justice or are there other vernaculars? Do we dismiss the faith of these people on their guru as another ridiculous Ganesh phenomenon?"
The argument that Visvanathan and several others have made is that such places provide people with more than just spiritual satisfaction; there is large component of meeting other needs such as for medical attention, education etc, things that the Indian state ought to provide.
In Indian Express, M. Rajivlochan, Professor of Contemporary History at Panjab University, Chandigarh argues that no one should be surprised at the manner in which the authority of the Indian state was challenged in the hours and days following the ruling on Ram Rahim. He argues: "Since the state hardly works normally, it is impossible to make it function on special occasions, like when a 15-year-old rape case is finally reaching a verdict. Fifteen years? It took that long to decide upon a rape charge? This itself is an indicator of a dysfunctional state system marked by a dysfunctional system of justice."
I will stop this post here. There is bound to be a larger fallout to this last story as well as to the two judgments delivered last week. Together they tell us a story that is as complex as is this country of ours.