THE HINDU EDITORIAL – 24th AUGUST 2017

i) Two cheers for the Supreme Court

On the 4th of November, 1948, Dr. B.R. Ambedkar rose to address the Constituent Assembly, and proudly stated that “the… Constitution has adopted the individual as its unit”. On Tuesday, this constitutional vision, under siege for much of India’s journey as a democratic republic, came within a whisker of destruction at the hands of the Supreme Court. But when all the dust had cleared in Courtroom No. 1, it finally became evident that Chief Justice J.S. Khehar had been able to enlist only one other judge, out of a Bench of five, to support his novel proposition that the religious freedom under the Indian Constitution protected not just individual faith, but whole systems of “personal law”, spanning marriage, succession, and so on. This view would not only have immunised instantaneous triple talaq (talaq-e-biddat) from constitutional scrutiny, but would also — in the Chief Justice’s own words — have ensured that “it is not open for a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”. Had the Chief Justice managed to persuade one other judge to sign on to his judgment, we would have found ourselves living under a Constitution that sanctions the complete submergence of the individual to the claims of her religious community. A reminder, perhaps, of how even the most basic constitutional values, often taken for granted, hang by nothing more than the most fragile of threads. But if the relegation of the Chief Justice’s argument to a legally irrelevant dissenting opinion narrowly averted disaster, the separate opinions of three judges invalidating the practice of talaq-e-biddat gave us something to cheer about — but not much. By a majority decision, instantaneous triple talaq is now invalid, a significant victory that is the result of many decades of struggle by the Muslim women’s movement for gender justice. That is something that must be welcomed. However, the value of a Supreme Court judgment lies not only in what it decides, but also in the possibilities and avenues that it opens for the future, for further progressive-oriented litigation. In that sense, the triple talaq verdict is a disappointment, because even the majority opinions proceeded along narrow pathways, and avoided addressing some crucial constitutional questions.

The majority

Justice Rohinton F. Nariman, writing for himself and Justice U.U. Lalit, held that the 1937 Muslim Personal Law (Shariat) Application Act had codified all Muslim personal law, including the practice of triple talaq. This brought it within the bounds of the Constitution. He then held that because talaq-e-biddat allowed unchecked power to Muslim husbands to divorce their wives, without any scope for reconciliation, it was “arbitrary”, and failed the test of Article 14 (equality before law) of the Constitution. The practice, therefore, was unconstitutional. Justice Nariman’s reasoning, while technically faultless, avoided the elephant in the room that had been ever-present since the hearing began. Under our constitutional jurisprudence, codified personal law — that is, personal law that has been given a statutory form, such as the Hindu Marriage Act — is subject to the Constitution. However, uncodified personal law is exempted from constitutional scrutiny. In other words, the moment the state legislates on personal law practices, its actions can be tested under the Constitution, but if the state fails to act, then those very practices — which, for all relevant purposes, are recognised and enforced by courts as law — need not conform to the Constitution. This anomalous position, which had first been advanced by the Bombay High Court in a 1952 decision called Narasu Appa Mali, and has never seriously been challenged after that, has the effect of creating islands of “personal law” free from constitutional norms of equality, non-discrimination, and liberty. By holding that the 1937 Act codified all Muslim personal law, Justice Nariman obviated the need for reconsidering this longstanding position, even as he doubted its correctness in a brief, illuminating paragraph. As a matter of constitutional adjudication and judicial discipline, he was undoubtedly right to do so. However, it is impossible to shake off the feeling that the court missed an excellent opportunity to review, and correct, one of its longstanding judicial errors. It seems trite to say that in our polity, there should not exist any constitutional black holes. The basic unit of the Constitution, as Ambedkar said, is the individual, and to privilege state-sanctioned community norms over individual rights negates that vision entirely. In a separate opinion — which turned out to be the “swing vote” in this case — Justice Kurian Joseph did not go even that far. He simply held that talaq-e-biddat found no mention in the Koran, and was no part of Muslim personal law. Effectively, he decided the case on the ground that talaq-e-biddat was un-Islamic, instead of unconstitutional — begging the question whether secular courts should be adjudicating such questions in the first place. If Justice Nariman’s opinion was narrow and technical, Justice Joseph’s was narrow and theological. Therefore, in a case that involved, at its heart, issues of the intersection between personal law, the Constitution, and gender discrimination, there is no majority view on any of these topics.

The dissent

This brings us back to the dissent. Not only did the dissenting opinion privilege community claims over individual constitutional rights, it also conflated the freedom of religion with personal law, thereby advancing a position where religion could become the arbiter of individuals’ civil status and civil rights. Here again, it had been Ambedkar, extraordinarily prescient, who had warned the Constituent Assembly on the 2nd of December, 1948: “The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death… if personal law is to be saved, I am sure… that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extent beyond beliefs and rituals as may be connected with ceremonials which are essentially religious. It is not necessary that the sort of laws, for instance, laws relating to tenancy or laws relating to succession, should be governed by religion.” Ultimately, what separates religious norms and personal law systems — and this includes all religions — from the laws of a democratic republic is the simple issue of consent. This is why the Chief Justice’s conflation of religious freedom and personal law was so profoundly misguided: because, in essence, he took a constitutional provision that had been designed to protect an individual, in her faith, from state interference, and extended it to protect a personal law system that claims authority from scriptures — scriptures whose norms are applied to individuals who had no say in creating them, and who have no say in modifying or rejecting them. The Muslim women challenging triple talaq invoked the Constitution because there was no equivalent within their personal law system; the Chief Justice would have denied not only them that possibility, but would have denied to every other individual, who felt oppressed and unequally treated by her religious community, for all time — and told them, as he did in this case: “Go to Parliament, but the Constitution has nothing for you.” At the very least, the Majority judgments did not close that window. For that, we must say: two cheers to the Supreme Court.

ii) And the war goes on

U.S. President Donald Trump’s decision to deepen the country’s military engagement in war-torn Afghanistan signals a significant shift in the position he has held for years. Mr. Trump had campaigned to end American involvement in foreign conflicts and was particularly critical of the Afghan war, which he said was “wasting” American money. His announcement on Monday of the decision to send more troops to the country reflects a realisation that the U.S. does not have many options in dealing with its longest military conflict. This is also a grim reminder of the precarious security situation in Afghanistan. Sixteen years since George W. Bush ordered the American invasion of Afghanistan and toppled the Taliban regime, the insurgents are on the ascendent again. More than half the country’s territory, mostly in rural, mountainous areas, is now controlled by the Taliban, while the Islamic State has set up base in eastern Afghanistan. In recent years, both the Taliban and the IS have carried out a number of terror attacks in the country, including at highly fortified military locations, raising questions about the very survival of the government in Kabul. This is a worry point for Mr. Trump’s generals, who want to avoid the kind of vacuum left behind by the Soviet withdrawal in the late 1980s that plunged Afghanistan into a protracted civil war; the Taliban eventually took over. But it is not going to be easy for Mr. Trump. He is the third consecutive American President to send troops to Afghanistan. Mr. Bush and Barack Obama failed to swing the situation sufficiently to ensure a long-lasting difference in Afghanistan’s battleground. It is not clear if Mr. Trump can win a war they lost. His strategy can be summed up as Obama-plus — it builds on the premises of the Obama plan of additional troops and regional diplomacy. But unlike Mr. Obama, who set a timetable for the withdrawal of troops, Mr. Trump is ready for an open-ended engagement. He also said the focus of the American mission should narrow down to fighting terrorists, not rebuilding Afghanistan “in our own image”. Third, Mr. Trump minced no words while calling Pakistan a country that shelters terrorists. He also wants India to play a greater role in providing economic and developmental assistance to Afghanistan. India has welcomed Mr. Trump’s strategy, as the U.S.’s objectives in building a stable Afghanistan and ending Pakistan’s sponsorship of terrorism are exactly in line with India’s own goals for the region. It has, however, correctly reminded Mr. Trump that it does not need his request, never mind his coarse reference to “billions of dollars” made in bilateral trade with the U.S., in order to fulfil its commitment to Afghanistan’s economic development. Such open transactionalism will not serve the U.S.’s efforts in winning allies for its new Afghanistan policy, nor indeed will it further its mission in a country that is not unfairly called the “graveyard of empires”.

Word/Vocabulary:

1) Whisker

Meaning: A very small amount.

Example: They won the election by a whisker.

2) Evident

Meaning: Clearly seen or understood; obvious.

Example: She ate the biscuits with evident enjoyment

Synonyms: Obvious, Apparent

Antonyms: Unnoticeable

3) Immunised

Meaning: Protected or exempt, especially from an obligation or the effects of something.

Example: They are immune from legal action

Synonyms: Resistant, Unsusceptible

Antonyms: Susceptible

4) Egalitarian

Meaning: Believing in or based on the principle that all people are equal and deserve equal rights and opportunities.

Example: A fairer, more egalitarian society.

5) Submergence

Meaning: Completely cover or obscure.

Example: The tensions submerged earlier in the campaign now came to the fore.

Synonyms: Hide, Conceal

6) Fragile

Meaning: Easily destroyed or threatened.

Example: You have a fragile grip on reality

Synonyms: Tenuous, Vulnerable

Antonyms: Sound, durable

7) Relegation

Meaning: The action of assigning to an inferior rank or position.

Example: The relegation of women to the domestic sphere.

8) Dissenting

Meaning: Hold or express opinions that are at variance with those commonly or officially held.

Example: Two members dissented from the majority.

Synonyms: Arguing, Disagreeing

9) Averted

Meaning: Prevent or ward off (an undesirable occurrence).

Example: Talks failed to avert a rail strike.

Synonyms: Prevent, Stop

10) Litigation

Meaning: The process of taking legal action.

Example: The Company wishes to avoid litigation.

Synonyms: Legal action, Lawsuit

11) Reconciliation

Meaning: The restoration of friendly relations.

Example: His reconciliation with your uncle.

Synonyms: Reunion, Conciliation

Antonyms: Estrangement, Alienation

12) Statutory

Meaning: Having come to be required or expected through being done or made regularly.

Example: The statutory Christmas phone call to his mother.

13) Exempted

Meaning: Free (a person or organization) from an obligation or liability imposed on others.

Example: They were exempted from paying the tax.

Synonyms: Free from, Not liable to

Antonyms: Liable to, Subject to

14) Obviated

Meaning: Remove (a need or difficulty).

Example: The presence of roller blinds obviated the need for curtains.

Synonyms: Preclude, Prevent

15) Trite

Meaning: (of a remark or idea) lacking originality or freshness; dull on account of overuse.

Example: This point may now seem obvious and trite.

Synonyms: Hackneyed, Banal

Antonyms: Original, Fresh

16) Conflated

Meaning: Combine (two or more sets of information, texts, ideas, etc.) into one.

Example: The urban crisis conflates a number of different economic, political, and social issues

17) Prescient

Meaning: Having or showing knowledge of events before they take place.

Example: A prescient warning.

Synonyms: Prophetic, Predictive

18) Conceptions

Meaning: An abstract idea; a concept.

Example: The conception of a balance of power.

Synonyms: Idea, Concept

19) Standstill

Meaning: A situation or condition in which there is no movement or activity at all.

Example: The traffic came to a standstill.

Synonyms: Halt, Stop

20) Consent

Meaning: Permission for something to happen or agreement to do something.

Example: No change may be made without the consent of all the partners

Synonyms: Agreement, Assent

Antonyms: Dissent

21) Profoundly

Meaning: (of a person or statement) having or showing great knowledge or insight.

Example: A profound philosopher.

Synonyms: Wise, Learned

Antonyms: Superficial, Stupid

22) Essence

Meaning: The intrinsic nature or indispensable quality of something, especially something abstract, which determines its character.

Example: Conflict is the essence of drama.

Synonyms: Quintessence, Soul

23) Grim

Meaning: Depressing or worrying to consider.

Example: The grim news of the murder.

Synonyms: Dreadful, Dire

24) Precarious

Meaning: Dependent on chance; uncertain.

Example: He made a precarious living as a painter.

Synonyms: Uncertain, Insecure

Antonyms: Safe, Secure

25) Invasion

Meaning: An unwelcome intrusion into another’s domain.

Example: Random drug testing of employees is an unwarranted invasion of privacy.

Synonyms: Violation, Infringement

26) Toppled

Meaning: Remove (a government or person in authority) from power; overthrow.

Example: Disagreement had threatened to topple the government.

Synonyms: Overthrow, oust

27) Insurgents

Meaning: A person fighting against a government or invading force; a rebel or revolutionary.

Example: An attack by armed insurgents.

Synonyms: Rebel, Revolutionary

Antonyms: Loyalist

28) Fortified

Meaning: Provide (a place) with defensive works as protection against attack.

Example: The whole town was heavily fortified.

Synonyms: Secure, Protect

Antonyms: Weaken

29) Plunged

Meaning: Fall suddenly and uncontrollably.

Example: A car swerved to avoid a bus and plunged into a ravine.

Synonyms: Crash, Plummet

30) Protracted

Meaning: Lasting for a long time or longer than expected or usual.

Example: A protracted and bitter dispute.

VOCABULARY BUILDER – EDITORIALS