Khurshid - Triple talaq: examining faith

Triple Talaq

Triple Talaq

Examining Faith

salman khurshid

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Contents

The genre of this book is an unusual one. People often write about great social and political events they have been a part of, or indeed, watched from a position of proximate advantagewhat is described as the ringside view. I have known of many such short recollections of authors regarding landmark cases, such as the late senior advocate T. Andhyarujinas account of

The flavour of public discourse in recent years, undoubtedly influenced by political ideologies whose fortunes have been on the rise, is beginning to get a bit sharp. Populism has greatly overshadowed the idealism of the spirit of Independence (hopefully only as a transitory phase). It is a moral imperative for people who believe in the idea of India to resist irreparable damage to the heritage we cherish and without which, no matter what the beliefs to the contrary, we will never be what we are and must remain. The building blocks of such an endeavour are numerous and the parts of the whole will indeed take enormous effort to put together. Yet each part is invaluable in itself and I hope that this sagathat of the Triple Talaq case before the Supreme Courtis and will continue to be one such part.

Interestingly, a constitutional case lasts only for a few hearings and is followed by written submissions, if they have not already been presented before the Bench when the oral arguments commence. But despite the time and the often combative exchange between counsels for parties, what happens in court is but a small part of what goes on in the world outside; indeed, even of what happens in court, only a small part is actually reported by the media and reproduced in the judgment. Understandably, there are constraints of space, time, context, and understanding; so, reproducing a virtual blow-by-blow account of court proceedings with a contextual gloss might be of help to larger audiences. It is with that in mind that I have attempted to write this book.

Religion has an interesting relationship with modern democracies: in Mexico, public display of religious symbols or even clothes is prohibited;

Judges often have to decide what religion means for legal purposes. For example, the US Supreme Court had to decide whether, when Congress provided a conscientious objection exemption from military service for men whose religion would not allow them to serve, this would also extend to an atheist whose moral convictions prohibited it. It decided

The ECtHR quite succinctly captures the context of its wide interpretation of religious freedom in the following paragraph:

As enshrined in Article 9 (art. 9), freedom of thought, conscience and religion is one of the foundations of a democratic society within the meaning of the Convention. It is, in its religious dimension,

Hence, the phrase religious atheism, however surprising, is not an oxymoron; religion

The Triple Talaq case offered the opportunity to consider the very idea of religion, but the Court thought it appropriate not to dive into a metaphysical or philosophical exercise, limiting its attention to what might be described as the laymans religion. Yet, somehow it seems that drawing distinctions between the core or essential part of religion and the peripheral aspect cannot be attempted without an understanding of the nature of religion.

Our Constitution is the original compact between citizens through their representatives in the Constituent Assembly that provides for rights granted to the State (the collective rights of society) as indeed rights of the citizen against the State. Somewhat later the idea of Fundamental Duties took shape, but conceptually that is an explicit expression of the rights of the State. Among the rights of the citizen identified are the rights to equality, liberty, conscience, trade, organization, speech, and the right to practise and profess religion. Interestingly, over the decades most of these rights have been amplified and expanded far beyond the pale of the language used in the Constitution, such as the recognition of substantive Due Process. However, with respect to religion, the Court has been somewhat tight-fisted and treated it as a dimension of our national life that has to be tolerated rather than celebrated.

The best that the Court could do was to fall back on the convenient distinction between the essential or core part of religion and its peripheral dimension. In 1954, the Supreme Court said:

What constitutes the essential part of a

This, of course, is where Justice K. Ramaswamy stated:

In pluralistic society like India there are numerous religious groups who practise diverse forms of worship or practise religions, rituals, rites etc.; even among Hindus, different denominants and sects residing within the country or abroad profess different religious faiths, beliefs, practices. They seek to identify religion with what may in substance be mere facets of religion. It would, therefore, be difficult to devise a definition of religion which would be regarded as applicable to all religions or matters of religious practices. To one class of persons a mere dogma or precept or a doctrine may be predominant in the matter of religion; to others, rituals or ceremonies may be predominant facets of religion; and to yet another class of persons a code of conduct or a mode of life may constitute religion. Even to different persons professing the same religious faith some of the facets of religion may have varying significance. It may not be possible, therefore, to devise a precise definition of universal application as to what is religion and what are matters of religious belief or religious practice.

He added that this did not mean, however, that it was

[n]ot possible to state with reasonable certainty the limits within which the Constitution conferred a right to profess religion. Therefore, the right to religion guaranteed under Article 25 or 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting