Withdrawal of judiciary from adjudication of religious matters will allow patriarchal clergy to take over

A. Faizur Rahman
The fact, however, is that our courts are not in the business of initiating religious reforms.

It was surprising to see seasoned legal commentator, Faizan Mustafa, make the argument that a recent Supreme Court judgment, overemphasising constitutional morality, tried to curtail the "freedom to irrational beliefs" that citizens enjoy as a fundamental right under Part III of the Constitution ('Faith and gender justice", IE, February 8). In his view, the Sabarimala protests proved that courts are ill-equipped to "initiate" reforms in faiths.

The fact, however, is that our courts are not in the business of initiating religious reforms. They adjudicate on contentious religious practices only when their intervention is sought under Articles 32 and 226 of the Constitution. Without going into the merits of the triple talaq and Sabarimala rulings cited by Mustafa, it may be pointed out that in both these cases certain religious practices were subjected to the essentiality test because those traditions, apart from not being essential to their faith, were found to violate the Constitution in the view of the apex court.

For instance, in the triple talaq case, Justices Nariman and U U Lalit (two of the three judges who delivered the majority judgment) showed us how it is possible to harmonise the concepts of constitutional justice and Islamic egalitarianism without undermining the religious freedom guaranteed in Article 25 (1). On the one hand, they pronounced talaq-e-biddat to be "manifestly arbitrary" and violative of Article 14 because it allowed a Muslim man to break his marriage "capriciously and whimsically" without attempting to save it through reconciliation. On the other, the judges endorsed the comprehensive Quranic procedure of porce - already upheld by the Supreme Court in the Shamim Ara case (2002), which gives the Muslim husband no room to arbitrarily exercise his right to porce.

As is evident, the Supreme Court was not trying to reform Islam but only verifying if a certain controversial legal custom was really a part of Islam and if so was it compatible with the provisions of the Constitution. Talaq-e-biddat was set aside because it failed this test, and the Quranic procedure of talaq was upheld because it was in consonance with constitutional values.

Put differently, even an essential religious practice cannot violate the Constitution if it is to be recognised as a fundamental right. Otherwise the clause, "subject to public order, morality and health and to the other provisions of this Part [Part III]". in Article 25, will cease to be of any meaning. Hence the question of the Constitution giving us "the right to have a certain amount of irrationality and blind belief" does not arise if such a belief, irrational or logical, falls afoul of the aforementioned clause.

Besides, the higher judiciary being the final arbiter of disputes under Articles 32 and 226, it would be wrong to ask it to refrain from intervening in questions of faith because the withdrawal of the courts from the adjudication of religious matters is fraught with grave consequences. It will leave the field wide open for the patriarchal clergy to take over.

Justice D Y Chandrachud grappled with this question in the Sabarimala case. After citing legal scholars opposed to the idea of courts donning a reformatory role through the essential religious practices doctrine, he homed in on the anti-exclusion principle which limits the autonomy of religious groups "in situations where these groups are blocking access to basic goods". Agreeing with this precept, the judge held that "where a religious practice causes the exclusion of inpiduals in a manner which impairs their dignity. the freedom of religion must give way to the over-arching values of a liberal constitution".

In this context, Mustafa's article causes conceptual confusion by invoking the notion of "substantial equality" to suggest that rather than giving men and women the "same treatment", differences between them must be recognised even while advocating just treatment for women.

It would be oxymoronic to assert that gender justice can be achieved by not treating women on a par with men insofar as the "sameness" of rights is concerned. In 2008, a landmark Canadian Supreme Court ruling (R. v. Kapp, [2008] 2 S.C.R. 483, 2008 SCC 41) showed us the right application of substantive equality by liberally interpreting Sections 15 (1) & (2) of the Canadian Charter of Rights and Freedoms. It declared that any remedial activity that ameliorates conditions of disadvantaged inpiduals or groups is constitutional even if does not result in the same opportunities being given to privileged inpiduals or groups. Put simply, substantive equality cannot be invoked to whittle down women's rights in the name of rejecting the "sameness doctrine". It can be used only as a tool for positive discrimination.
Nonetheless, Mustafa is certainly right in saying that religious institutions must appreciate the constitutional vision of gender justice and must reform themselves internally. But can the courts wait forever?

This article first appeared in the print edition on March 23, 2019, under the title 'Let the ball be in the court'. The writer is an independent researcher and secretary general, Islamic Forum for the Promotion of Moderate Thought