Religion and the Secular Law in India
Posted on 14-May-2017
That in a secular state there should be no place for religion in the laws and policies of the state has now acquired the status of one of Aristotle's self-evident truths is quite clear. An equally important question is whether a secular state and its institutions have the right to interfere in matters of religion. In the present day Indian context the question has acquired immediacy when different people on different grounds have been approaching Indian courts asking for their intervention in matters which have till now been left to religious authorities. In 2016, in the case of two temples and one Muslim shrine, the case of allowing women entry came up before Indian courts with three different outcomes. A group of women challenged the ban on their entry into the Shani Shingnapur temple in Pune before the Maharashtra High Court which opined that a 1956 Act of Maharashtra enacted mainly to allow dalits entry into Hindu temples should also apply to women. The Temple trust thereupon lifted the ban on the entry of women into the inner sanctum. In 2016, on a petition filed by some Muslim women, the Maharashtra High Court ordered that women be permitted to enter the off-shore Sufi shrine of Haji Ali in Mumbai. The shrine board appealed against the High Court order in the Supreme Court of India but even before the appeal came up for hearing decided to allow women to enter the shrine. A third case also about the entry of women into a temple has been before the Supreme Court of India since 2006 and has been partially heard by different benches over the years. At its last hearing in February this year, the Supreme Court indicated that the matter will need to go before a Constitution Bench. This relates to the Sabarimala Temple in Kerala not allowing entry into its inner sanctum to women between the ages of 10 and 50. The Kerala High Court had in 1991 upheld the right of the temple authorities to apply such a ban. A group of women have been agitating against the ban. The Government of Kerala has now told the Supreme Court that it favours lifting the ban.
These cases and other similar ones raise the question whether in a secular state there can be laws or court judgments deciding matters of religious beliefs or practices. The answer on general principles has to be that there cannot be. A religious community--any religious community--is a closed group which decides what its creed is and who can be its members, who can enter it and how a member can exit it. This is implicit in the freedom of religion that all modern secular states allow. Whether such beliefs or practices are rational is not relevant--it can be argued that in the end all religious beliefs and practices are irrational. Another principle important in a secular state is that membership of a religious community is entirely voluntary. If a person does not like some or all beliefs or practices of a religious community she has a choice between leaving that community or continuing to be part of the community while keeping her own doubts or reservations in suspense. She has no inherent right to have recourse to the authority of the state to force the religious community to change its rules which can be done only by agreed authorities--the Vatican or the Archbishop of Canterbury in the case of the Roman Catholic Church or the Church of England or groups of wise men, ulama or elders as in the case of other religious communities. One illustration should illuminate the point. Roman Catholic priests are bound by the vow of celibacy. A priest who marries has to leave priesthood--he is defrocked, to use a no longer fashionable expression. Can a court of law order his restitution as a priest on the grounds that his fundamental rights are being violated? The answer has to be no--only the Vatican can decide whether the man can continue in his ministry. This is not to say that these freedoms are absolute. In many cases the law, especially criminal law has to override religious beliefs and practices. Practices such as human sacrifice, infanticide or suttee have no place in a modern society, no matter what some ancient religious text says. Similarly, in a multi-religious secular state, there can be no place for laws against blasphemy or apostasy. Freedom to practice religion also implies freedom not to practice any religion, freedom to stop practicing a religion and the freedom to criticise a religion. Contrariwise there can be no place in a secular state for the clause in the Indian Penal Code--enacted in 1925 to deal with a situation of high tension between Hindus and Muslims in the Punjab--making it an offense to hurt the religious sentiments of a community. This clause has been interpreted and misinterpreted in absurd ways, sometimes blocking even academic discussions of religion. It can be claimed that I hurt Muslim sentiments if I call Mohammad ibn Abdullah by his name without adding the word Prophet before his name or the words peace be upon him after his name or I hurt Hindu sentiments if I criticise Krishna for teaching some morally dubious tricks to his allies the Pandavas.
In India, there is one category of laws, semi religious in nature, that the courts have been wary of touching. Any attempt to tamper with this category of laws results in a political tempest. These are laws governing Muslim marriages, divorce, inheritance and other related matters. A 1937 Act, still on the statute books prescribes how these are to decided on the basis of the Sh'aria. One difficulty for the courts is that the Sha'ria is based on the text of the the Quran, the Sunna or the traditional accounts of the acts of Mohammad, the Hadith or traditional accounts of the sayings and deeds of Mohammad and his companions and the large body of opinions of Muslim jurists over the last thirteen or fourteen centuries. There is also the baggage of history. From the decade of the 1860's, large sections of leaders of Indian Muslims have been wedded to two ideas: Muslim separatism or the belief that Muslims of India have their own separate cultural, even national identity and that in any dispensation for India, Muslims and Hindus must be equal partners irrespective of disparity in their numbers. These two views eventually led to the partition of India in 1947 and the creation of Pakistan in the Muslim majority areas in the west and east of British India. Those Muslims who stayed on in India--around 9.5% of the population of India in 1951--had of necessity to dilute their sense of separate identity but they have been wary of any perceived attempt by the state or the majority community to dilute their identity as a community. Muslim personal law is seen by the leaders of Indian Muslims as an integral part of their identity. Though the Directive Principles of State Policy in the Indian constitution--recommendatory in nature--has talked of the enactment of a uniform civil code, no government has in the last sixty-seven years tried to enact one. Even governments led by the Bharatiya Janata Party have so far desisted from enacting one though enactment of such a code regularly features in the Party's election manifestos. There was the case of Shah Bano who, having been divorced in 1978 had gone to court asking for support from her divorced husband as she was unable to maintain herself. The case was filed under the provisions of the Criminal Procedure Code which applies equally to all citizens of India irrespective of their religion. A five judge Constitution Bench of the Supreme Court gave a final verdict in 1985 under the Criminal Procedure Code awarding Shah Bano an alimony. The Supreme Court added that this award did not fall afoul of the injunctions in the Quran. In 1986, the Rajiv Gandhi government, responding to the furore in the Muslim community, enacted a law largely nullifying the effects of the Supreme Court Judgment of 1985. In 2001 the Supreme Court effectively restored its 1985 order.
At this writing, the a five-member Constitution Bench of the Supreme Court is hearing a number of petitions from Muslim women challenging the Constitutional validity of the Muslim practice of a man repeating the the word talaaq three times at one go in order to divorce his wife on grounds of the violation of their constitutionally guaranteed rights. It is a sign of the wariness of the Supreme Court itself that the five member bench it has constituted comprises a Sikh, a Parsee (Zorastrian), a Muslim and a Hindu. In case the Supreme Court invalidates the practice there will almost certainly be an uproar among a section of Indian Muslims, particularly the All India Muslim Personal Law Board. But just as in the case of criminal law, so in the case of Constitutional law, the law must override religious practices. Those among the Muslim community who might not like such a verdict must try to understand that the best guarantees for the rights of religious minorities are prescribed by India's secular laws, above all the Constitution, and by Indian courts. Religious freedom has to be exercised within the bounds of the Criminal Procedure Code, the Indian Penal Code and the Constitution of India.