Chapter 14 Reconciling Constitutional Law, Gender Equality and Religious Difference

Lessons from Shayara Bano, India’s Triple Talaq Decision

In: The Asian Yearbook of Human Rights and Humanitarian Law
Vrinda Narain
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The contradictions inherent in the simultaneous existence of discriminatory Muslim personal law and constitutional equality guarantees pose serious challenges for Muslim women’s equality in India. This contradiction between public equality and private discrimination, and the privileging of religious freedom and minority rights over gender equality, has meant that women’s equality has been largely marginalised in India’s constitutional thought and jurisprudence. In the context of multiple axes of discrimination experienced by Muslim women, the author is interested in better understanding the interface between religious personal law and constitutional law. A brief survey of key jurisprudence reveals that even when the Indian Supreme Court takes note of women’s disadvantage under personal law, it quickly moves on to decide such cases on other grounds, ignoring or not adequately acknowledging that women’s inequality raises core constitutional questions. The focus of this article is India’s Supreme Court decision on Muslim personal law, Shayara Bano, popularly known as the Triple Talaq case. This case concerned a constitutional challenge to the practice of instantaneous divorce, the triple talaq, which is a unilateral, unregulated right to divorce enjoyed by Muslim men. The Supreme Court declared instant divorce, or triple talaq (talaq-e-bidat) unconstitutional. Balancing women’s equality with religious freedom and responding to the call for change from within the Muslim community, this decision is an important milestone in the evolution of Indian religious freedom jurisprudence. Drawing from this decision, this article asks how Muslim women’s equality rights can be constitutionalized. Reflecting on emerging jurisprudence, this article examines how the Indian Supreme Court has responded when women have sought to enforce their constitutional right to equality. In particular, how does the Supreme Court balance gender equality, religious freedom and minority rights? How does the Court mediate conflicts between secular law and religious personal law? How does religious personal law that dictates women’s inequality become legitimised by constitutional law? These questions are the focus of this article’s inquiry, as it considers the extent to which personal law itself has a constitutional dimension as an expression of religious freedom and as an affirmation of the state’s commitment to the protection of minority rights. The premise is that substantive equality is a legitimate goal and that the state has a duty to ensure that Muslim women’s equality rights are fully recognized and affirmed both in public institutions as well as within family and community structures. In turn, the courts have a duty to enforce women’s equality rights across all religious communities. The article examines the constitutional contradiction of public equality and private discrimination through an analytical framework that reaffirms the importance of an intersectional approach and is premised on substantive equality. Four guiding principles: substantive equality, intersectionality, inclusivity and challenging norms, form the analytical framework of this article.

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