India is a secular and multicultural country without provision of specific multicultural policy. However, due to the diversity of religions and communities in India, the Constitution provides for a wide space for people to practice their religious customs and traditions. This means that there are a separate set of personal laws for each religion that governing their marriage, inheritance and property rights.
The Indian government had opposed the practice of triple talaq, nikah halala (the process of remarrying an older husband which involves getting married to another man, consummating the marriage and getting divorced to him) and polygamy among Muslims citing human rights principles of gender equality, gender justice and secularism. However, the All India Muslim Personal Law Board (AIMPLB) considers the matter of triple talaq a “legislative policy” and thus, it cannot be interfered with. The AIMPLB defends triple talaq on the grounds that if the practice is discontinued, a man might murder or immolate his wife to get rid of her.
The government’s response to the tension between religious groups are influenced by the policy of recognition and of cultural accommodation — to safeguard the rights of the religious and ethnic minorities. Most of these multicultural policies were made and contextualized under the influence of sectarian conflict in British India. The Indian Constitution is the result of these multicultural identities. Principally, India being a secular state, will not have the government intervene in religious affairs of a community. However, this is not the case. Indian secularism advocates state-intervention for the sake of substantive values — in this case to protect human rights.
The kind of secularism India practices is not the USA model where there is a strict separation between the church and State but rather, the Indian model of secularism caters to the multicultural needs of a very diverse nation. This model of secularism — as scholar Rajeev Bhargava says — intervenes in the religious affairs of the communities, both majority and minority alike.
This secularism is reflected in government policies, for example, when it changed the Hindu personal law quite significantly. Polygamy was made illegal, the right to divorce was introduced, child marriage was abolished, animal sacrifices within the precincts of the temple were prohibited and devadasi dedication was abolished. Other changes included temple entry rights for Harijans and reforming the temple administration. This proves that the government, in the matters of human rights and social reformation, does intervene in religious affairs.
However, arguments have been made that secularism in a democratic state is expected to protect cultural diversity and people should have the right to follow their own culture or religion. This is precisely why the Indian Constitution allowed minorities to retain their personal laws and made the decision of not changing them (including the right to maintain their religious institutions and funding from the state) without their consent. In fact, laws have been passed banning bigamy amongst Hindus but not for some of the minority communities. Article 29 (1) says that any section of the citizens of India having a distinct language, script or culture of its own shall have the fundamental right to conserve the same. This means that if a cultural minority wants to preserve its own language and culture, the state cannot by law impose on it any other culture belonging to the local majority. Both religious and linguistic minorities are protected by this provision.
On the other hand, the famous British scholar on multiculturalism Bhikhu Parekh, who has appreciated the Indian Constitution for accommodating diversity and plurality, asserted that the state cannot remain indifferent to the iniquities of some of these laws and needs to insist on certain basic principles of justice. Rajeev Bhargava also justifies government intervention in religious affairs provided that it is guided by non-sectarian principles, consistent with a set of values constituted in the spirit of equal dignity for all.
One concern is that intervening in the religious affairs of minorities opens up ways of manipulation by political parties, which would explain the fear that triple talaq and polygamy are likely to be the next ground on which Hindutva will assert itself.
Muslim leadership in India has not shunned state intervention altogether even though Muslim family affairs are governed by their Personal Law. Scholar Bilgrami has questioned the constitutional protection of the Muslim “personal laws” in India, as such personal laws restrict individual rights and autonomy. Bilgrami’s fear is justified in Khan v. Shah Bano Case (1985 SCR (3) 844), where a Muslim woman’s human rights were ignored by the government just to respect the Muslim personal laws and to appease minorities for political gains.
Interestingly, some scholars of multiculturalism empower minorities to the extent of ignoring the human rights of the weaker members of their society, including children and women. As Chandran Kukathas says, minority communities must also respect the rights of their members who want to leave the group or form a separate identity.
In the concerned case of triple talaq, some Muslim clerics are not respecting the dissenting voices from within their community and are not ready to change their attitude towards women. Unilateral divorce is wrong. Equality is the need of the hour and Muslim clerics must transform their approach and respect the rising consensus against triple talaq amongst their own community.
Triple talaq violates numerous women’s rights and promotes a socio-cultural hegemony over women’s lives by suppressing their human rights. Not only does this old tradition go against many Constitutional rights, but it is also not in line with the UN human rights conventions.
Before taking and implementing any crucial decisions, reaching a consensus among stakeholders, in this case of the Muslim women, men and clerics, is important. The Indian government should avoid taking one sided decisions which could unsettle the delicate fabric of a multicultural society already plagued with many internal conflicts and divisions.
As far as the secular nature of Indian polity is concerned, India’s secularism has the ability to accommodate progressive change and religious reformation as it has done so successfully in the past. Therefore, I believe that the issue of triple talaq can also be settled amicably.