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.
