Judicial wisdom, political mischief

“It needs to be noted that the Supreme Court ruling is a very limited intervention in the Muslim “religion” — limited only to a very obnoxious practice; the practice was held unacceptable by the court because it is in violation of the Islamic laws. In any case, progressive, liberal and sensitive voices within the Muslim community have consistently voiced themselves against the obnoxiousness of this practice of instant triple talaq”, says the author.

A socially useful litigation, insisted upon by those intrepid women of the Bharatiya Muslim Mahila Andolan, has produced a Supreme Court ruling, invalidating the practice of instant triple talaq. Lest it be suggested that the court had adjusted itself to the political expediencies of the day, we were curiously but repeatedly told that the judgment was delivered by a Bench that represented five different religious faiths. That was somehow meant to reassure us all. Still, that did not prevent the assorted politicians, from the Prime Minister downward, from overloading the verdict with their political calculations. Some wise and clever RSS functionary was even reported to have pronounced the death of “old secularism.”

Consequently, we are forced to examine the political context of this consequential judgment. It needs to be noted that the talaq ruling has come soon after we recently courted an elaborate controversy over the Hamid Ansari proposition that the minorities in India had been given reason to feel insecure. Authoritative and angry voices were raised: how dare anyone bring up this disagreeable subject of the minorities’ welfare and insecurity?  The rebuff was laced with a be-grateful-for-what-you-are-allowed-to-have smugness.

Legal scholars will keep chewing on the jurisprudential nuances of three sets of opinion, the larger question that needs to concern us is: how will the triple talaq ruling add to — or subtract from — the minorities’ sense of insecurity?  True, the honorable judges were not addressing themselves to the minorities’ (in)security but there can be no doubt that this ruling will have complications and consequences in the larger political landscape.

To begin with, there may be cases of stray Muslim men being criminalized for being in violation of the Supreme Court. The very lumpen elements who had inflicted violence in the name of cow protection would feel emboldened to rework their gruesome energy. The use of violence and aggression against the minorities can now be explained away as sanctioned by the highest court.

Some voices are already asserting that the ruling is the beginning of the end of what they see as the jumped-up insolence of the Muslims. Others are insisting that the politics of “appeasement” that began with the Shah Bano case three decades ago stands rolled back. This assertion of “appeasement” has been central to the ideological concoction served up by the Hindutva forces; it was meant to denigrate the non-BJP forces and to create certain visceral resentment, inducing a grievance that the majority remains at a clear disadvantage “in our own land”. So, unsurprisingly, the talaq judgment is deemed to be a political statement.

It needs to be noted that the Supreme Court ruling is a very limited intervention in the Muslim “religion” — limited only to a very obnoxious practice; the practice was held unacceptable by the court because it is in violation of the Islamic laws. In any case, progressive, liberal and sensitive voices within the Muslim community have consistently voiced themselves against the obnoxiousness of this practice of instant triple talaq. So, why this dismay or jubilation?

Arguably, the constitutional guarantee of freedom of religion does not constitute a blanket protection; nor are the minorities entitled to feel totally beyond the reach of the court’s jurisdiction.  Religious practices and customs can be challenged; and, in each case a determination is to be made by the court whether a practice is essential to the religion. In this limited context, the Muslim community need not allow itself to feel particularly cornered. Yet it is easier said than done.

Because, on the other hand, there is a sense of satisfaction, even triumphalism, that the Muslims can no longer claim to be beyond the interventionist reach of the State; just as the majority has been repeatedly subjected to —remember the Hindu Marriage Act, the sati, dowry, etc. — the progressive gaze of the law, now the same light of reasoned enlightenment would be focused on the minorities. The hardcore constituency can permit itself a smirk that the Muslims have lost an ill-deserved immunity. A beachhead has been established.

Indeed, the Hindutva forces have not lost any time in asserting that the triple talaq ruling is only the beginning; and that its old demand for a uniform civil code remains unabandoned. That demand itself is part of an unfinished agenda on what terms of co-existence are to be offered to the Muslims/minorities in India — parity, equality, or subordination.

That will be the stuff of politics in the months and years to come. Make no mistake about it. Given the BJP’s current political ascendency, the minorities may well be within reason to feel that the ruling party is out to question every single assurance or commitment, even overturn constitutional guarantees. Indeed, the orthodox leadership of the Muslim community may feel besieged but it would be a pity if the maulanas were to spurn the opportunity to raise their game.

Perhaps the most beneficial side-effect of the triple talaq ruling is that the Supreme Court has reclaimed its status and aura as the principal and only institutional interpreter of the constitutional rights and wrongs. The privacy case verdict on Thursday should be seen as a natural follow-up of the triple talaq verdict. A robust judiciary is central to the restoration of liberal sanity to our polity.

Those who swear by progressive and liberal values and profess a commitment to secularism and pluralism have an obligation, post-Talaq ruling, to devise new political tactics. It needs to be recognized that the old-fashioned identity politics is becoming increasingly counterproductive. If the orthodox Muslim leadership were to insist on wallowing in its entrenched ill-liberalism of the status quo, it will only enhance the potency of ill-liberalism of the right wing. It is no rocket science that the BJP’s politics is predicated on creating hostility among groups and suspicion in society at large.

Secular political parties and leaders have to give the Muslim community the confidence to grow out of the maulanas’ sway. The apex court has anchored its verdict on universal moral values; and, the same values can be invoked to insist a fair deal for the minorities in a fair constitutional order, creating “a good society”.

Before he went rogue in Vietnam, President Lyndon Johnson had defined “a good society” as one in which all citizens and groups “expect justice for themselves and are willing to grant it to others”.  Liberal, democratic and secular voices need to seize the talaq judgment to insist on a renewal of the constitutional core guarantees.

(The author is the editor-in-chief of Tribune group of newspapers)