Supreme Court and Muslim women 
Snapshot
  • Does religious belief or religious injunction trump the legal and constitutional framework of a secular state?

    Secularism and liberalism are progressive ideas. Yet in contemporary political discourse, they have become inextricably entwined with the public claims of the most conservative elements of religious communities.

As the monsoon makes its way to Delhi, keener eyes await another phenomenon to emerge the Supreme Court verdict on triple talaq. Make no mistake, whatever may be the judgement, it will have momentous effects not only on the political and constitutional order, but also on the conceptual foundations of our political and moral discourse. Our wait for the judgement, therefore, offers a great opportunity to reflect on how such a state of affairs has come to pass.

Defence of triple talaq by the All India Muslim Personal Law Board has rested on the argument that it is an essential religious practice, and thus protected by the Right to Religion, enshrined in the Constitution. Whatever its merits as a legal defence, the principles behind this argument are a sleight of hand that lay bare the contradictions inherent in current political discourse.

The contradiction at its most basic is this. Does religious belief or religious injunction trump the legal and constitutional framework of a secular state? And if indeed it does enjoy superiority over civil law, then on what basis does one oppose the raft of anti-cow slaughter notifications and beef bans? If the superiority of religious injunction over the constitutional order is conceptually affirmed, it becomes next to impossible to deny the Hindu nationalist argument against beef and cow slaughter. In other words, if the social contract represented by the constitutional order privileges religion as a value, then this privilege will inevitably be claimed by all who form part of that social contract.

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It is this contradiction that lies at the heart of what ails the secular-liberal project. Secularism and liberalism are progressive ideas. Yet in contemporary political discourse, they have become inextricably entwined with the public claims of the most conservative elements of religious communities. Their challenge now lies in responding effectively to the charge that the entire project has been founded on hypocrisy and has functioned as an enabler of regressive doctrines – all for political purposes.

This challenge is not new. It was of equal relevance in the 1980s when the Babri Masjid-Ram Janmbhoomi dispute first came to a head. Similar conceptual contradictions came to fore. The Shah Bano case ultimately restored the primacy of Muslim personal law and conceptually affirmed the superiority of religious belief over civil law and the constitutional order. After overruling the Supreme Court on the basis of religious belief, it became impossible for Muslim leaders and secular politicians to deny the claims of supposed Hindu religious belief articulated by the various Hindu organisations.

One cannot support banning Salman Rushdie on the basis of religious arguments and oppose banning James Laing or pulping Wendy Doniger for legal and constitutional reasons. The argument can be either religious or legal. It cannot be both. In political discourse, making an argument is not even the end of the story. It also has to be made in ways that make it acceptable and generate broad consensus. Dwelling solely on one set of reasons and ignoring the other serves only to hollow out the argument in its totality.

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What I am driving at is this. The liberal-secular idea is not being conceptually derived from Hindu tradition or political theory. It is derived in terms of more modernist political theory, on principles enshrined in the constitutional and legal framework of the state. Put differently, political and legal morality is being drawn not from religious or historical tradition, but from the conceptual foundations of the Constitution. These principles behind the liberal-secular project, after having been compromised by its own proponents and leaders, cannot then be invoked in its defence without apparent contradiction and charges of hypocrisy – charges that the current opposition is finding hard to refute.

The sheer inability to articulate a coherent response to cow politics is a consequence of this very same unresolved contradiction. All agree that the spate of lynching is condemnable. Politicians of every hue have decried the gruesome lynching of 16-year-old Junaid Khan in Haryana. Yet the cow politics that has formed the backdrop to the plethora of such violent incidents has met with next to no coherent response from opposition politicians. And even where isolated criticism of recent cattle and slaughter related notifications has been mounted – as in Kerala and the Northeast – it has been founded on defending the dietary preferences of the people of the region.

The reason no coherent criticism has been mounted on the basis of constitutional principles is easy enough to see. To effectively mount such an argument would necessarily involve jettisoning the symbolic elements that have become the mainstay of secular politics today – commitment to Muslim Personal Law, to constitutional functionaries holding iftars, to religious subsidies. In effect, commit a version of political hara-kiri. To mount such an argument without doing this will catalyse the charge of hypocrisy.

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The fall guy in this situation becomes the vast population of Indian Muslims, who have realised that their leaders have not only fooled them, but effectively thrown to the wolves. And if the bloodied body of Junaid Khan says anything, it is that the wolves are anything but metaphorical. Secular politics, liberal politics, minority politics – whatever name one gives it – has failed, none more so than the Indian Muslim, who now finds himself isolated. If it hopes to provide an alternative narrative and an alternative moral and conceptual centre, then it must figure out where it has gone wrong.

For the secular project, there are only two ways out. The first – shape public discourse around the protection of constitutional principles and liberal ideas, and affirm the conceptual superiority of these principles in both letter and spirit. This will involve framing the project in modernist terms, derived from the fundamental social contract represented by the Constitution and a commitment to adherence to the social contract from all sides. The second is to defend the project in terms of India’s historical, religious and cultural traditions, in terms of India’s civilisational heritage – inevitably conceding that India is fundamentally Hindu.

The triple talaq judgement, the investigation into the terrible tragedy in Haryana and consequent political responses will soon give us an indication of which of the two ways it may end up taking.

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