“[Any] suggestion to ban triple talaq or polygamy is not acceptable to us. This will mean direct interference of the government in religious affairs as Sharia (Islamic law) is based on the Quran and Hadith, and its jurisprudence is strong as far as Islam is concerned. This would be against the Constitutional right to freedom of religion.”
-Kamal Farooqi, member, AIMPLB 
Setting aside the legal aspect of Mr. Farooqi’s argument, his use of the term “religious freedom” is interesting. In the simplest sense of the term, ensuring religious freedom for citizens requires that the state not interfere with the private religious practices of individuals as long as they do not affect anyone else (let’s call this the Minimal View). Is there a sense in which the concept of religious freedom can be framed to support his position?
There are two possibilities, which form the second and third of possible justifications for the AIMPLB’s views on Triple Talaq:
B) To ensure religious freedom for its citizens, the state must recognise and respect religious customs and practices (as long as they do not cause harm) because citizens who follow these practices consider them an integral part of their identity.
This argument is one that has been used to justify the recognition provided by Indian law to customary marriage rites of all religions. These rites have the effect of solemnizing the marriage in the eyes of the law, i.e. the law considers a couple to be married when they perform the relevant ritual that causes them to be married according to the customs of their community. This line of thinking can be seen in the Constituent Assembly debate on what eventually became Article 44 of the Constitution (the Directive Principle “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”).
“For instance, there are marriage practices in various communities. If we want to introduce a law that every marriage shall be registered and if not it will not be valid, we can do so under article . But would you invalidate a marriage which is valid […] under the present religious beliefs and practices on the ground that it has not been registered under any new law and thus bastardise the children born?”
-Mr. Naziruddin Ahmed (West Bengal) 
“There are ever so many multitudes of communities following various customs for centuries or thousands of years. By one stroke of the pen you want to annul all that and make them uniform. What is the purpose served? What is the purpose served by this uniformity except to murder the consciences of the people and make them feel that they are being trampled upon as regards their religious rights and practices?”
-B. Pocker Sahib Bahadur (Madras) 
To deepen this argument, we need to see what advantage this version of religious freedom has over the Minimal View on the issue of customary marriage rites.
The Minimal View thinks of customs and practices as being something that citizens engage in for their own personal satisfaction and hence a matter of individual choice. So all that the state needs to do to respect these rights is to place no restrictions on an individual’s religious practices (as long as they do not violate the rights of others). According to this view, it would not be a violation of religious freedom if the state decided that it would consider marriages to be valid in the eyes of the law only when they are registered.
To explain why the Minimal View is inadequate, we need to take a small detour to discuss maternity leave:
When making laws or rules that apply to a large number of people, it is often convenient to make these laws uniform for nearly everyone, at most grouping them into manageable categories of people who are alike in some relevant sense. The use of income tax slabs along with targeted exemptions is a good example of this: the government does not have to deal with the inconvenience of calculating and justifying exactly how much tax each individual should pay. By reducing individual citizens to abstract entities that only have an income and a few other attributes, government policy does not acknowledge any more details about a person than are necessary.
However, it is also possible to abstract away too many details. In many countries, before offering maternity leave was become standard practice, there was a period of time when it was routine for employers to fire women when they became pregnant and could no longer come to work. Employers may have felt that framing leave policies by abstracting their employees to entities having no gender seemed reasonable because it did not acknowledge any more information about the employees than was necessary. From their point of view, there was no injustice being done by firing an employee who could not come to work for a few months for personal reasons.
In spite of some commitment to the ideals of fairness and neutrality that employers might have demonstrated by treating men and women equally, they failed to be truly fair to women because their leave policy operated on entities that were too abstract: they pretended that a key attribute of their employees–their gender–did not exist and by doing so, forced half of all potential employees to enter employment with their gender removed from consideration, even though it had tremendous consequences for their lives as employees. Their leave policies were unjust because they explicitly excluded attributes of their employees that would profoundly shape their experiences in employment.
The argument for recognising marriage rituals is similar:
In spite of showing some ambition towards achieving fairness and neutrality, a state that mandates that marriages between people of all faiths must be registered for them to be valid would be ignoring the practices present in nearly every community that serve to solemnize and sanctify marriage. It expects them to enter the legal institution of marriage as recognised by the state, with all markers of their religious and cultural identity removed from consideration. In doing so, the state fails to understand and acknowledge the meaning that these practices may hold for citizens: they can be a way of fulfilling their beliefs that marriage must have divine sanction or follow historic customs to be truly valid, a way of reaffirming their feeling of affiliation towards their local community or their family by securing their participation in the wedding, or a way of signifying to themselves and to the world that their membership of their religious or cultural community is an integral part of who they are.
To be truly neutral with respect to religion, the state must not only refrain from imposing the marriage rites of one religion on those who do not follow it, but also recognise the customary marriage rites of all religions. Forcing the same legal mechanism for marriage on everyone has the effect of making the state intolerant towards citizens expressing their religious identity when entering the legal institution of marriage. It would therefore be a violation of neutrality towards religion because it makes the state actively hostile towards citizens’ attachment to their customs, religion and community, thereby pursuing a non-neutral agenda of explicitly excluding religious practices from the arena of interaction between the citizen and the state when it would be natural for it to be included. (Of course, there are other ways of looking at it, but that’s an argument for another day.)
Coming back to the issue of Triple Talaq, it is difficult to argue that having the right to divorce one’s wife instantaneously and unilaterally is meaningful to people in a way that justifies granting recognition to it. Neither is this an argument being made by the AIMPLB as shown by their disapproval of the practice. While this facet of religious freedom is important, it cannot justify the AIMPLB’s position.
C) To ensure religious freedom, religious communities must be able to preserve the religious identity of their community by passing on the beliefs and practices which they consider essential to their identity.
“[Personal laws] are an integral and inseparable part of their religion which are based on the guidance given by the Prophet under divine inspiration. Therefore the issue of their Personal Law is not merely a cultural issue or an issue of customary practices for the Muslims rather it is an issue which concerns the safeguarding and conservation of their religion which burdens them with grave responsibilities and they are, as a result, very sensitive about it.”
-From the AIMPLB website
Their argument is that it is essential to the religious identity of the Muslims that their personal laws remain untouched by the state. Therefore any intervention by the state in personal laws would threaten the ability of Muslims to preserve their religious identity in the same form. Of course, the AIMPLB does not speak for all Muslims: the BMMA survey quoted earlier found that 88.9% of the women surveyed when asked if the government should help the community codify its laws, answered in the affirmative.
However, the AIMPLB are not completely wrong: the practice of triple talaq is under threat: the BMMA and organisations that share their views are arguing that religious texts do not support the AIMPLB’s claims about the validity of Triple Talaq and highlighting the harm that could befall women who are subject to the Personal Laws in their current form. All of this poses a danger, not to the preservation of the identity of Muslims as a whole, but of the subset of Muslims who believe that it is crucial to the preservation of their identity that they have the power to declare that Triple Talaq has legal validity.
It’s fair to suggest that the primary responsibility of the state is to ensure that its own laws, policies and decisions do not systematically assist in causing harm to vulnerable groups of citizens, similar to a “do no harm” principle. It follows then that the desire of the members of a community to preserve its identity must be weighed against the harm caused by allowing them to do so. If the subset of Muslims whose views on this issue are represented by the AIMPLB can be said to form a community, this community-which considers it impossible to preserve its identity in the same form without having the right to permit its members to engage in a harmful, demeaning practice-does not deserve special protection from the state for its preservation.
Dr. B. R. Ambedkar (Bombay), during the Constituent Assembly debates, responding to a proposal to include the right to follow the personal law of one’s group or community as a Fundamental Right:
“The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it 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 extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.”
“I personally do not understand why religion should be given this vast, expansive jurisdiction so as to cover the whole of life and to prevent the legislature from encroaching upon that field. After all, what are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.”
- Nair, Shalini. “Ban Verbal, Unilateral and Triple Talaq: Central Govt Panel.”The Indian Express. The Indian Express [P] Ltd., 31 Mar. 2016. Web. 22 May 2016. http://indianexpress.com/article/india/india-news-india/muslims-divorce-ban-verbal-unilateral-and-triple-talaq-central-government-panel/
- Lok Sabha Secretariat, comp. “Constituent Assembly Debates, Volume VII, Page 11.” Constituent Assembly Debates (Proceedings) (9th December, 1946 to 24th January, 1950). National Informatics Centre, n.d. Web. 22 May 2016. http://188.8.131.52/LssNew/constituent/vol7p11.html
- “Preamble, Memorandum of Association of All India Muslim Personal Law Board.” All India Muslim Personal Law Board. All India Muslim Personal Law Board, n.d. Web. 22 May 2016. http://aimplboard.in/rules-regulations.php?language=english
- Lok Sabha Secretariat, comp. “Constituent Assembly Debates, Volume VII, Page 18b.” Constituent Assembly Debates (Proceedings) (9th December, 1946 to 24th January, 1950). National Informatics Centre, n.d. Web. 22 May 2016. http://184.108.40.206/LssNew/constituent/vol7p18b.html
- Vivek’s Info. Search Engine for Constituent Assembly Debates in India. Vivek’s Info. N.p., n.d. Web. 22 May 2016. http://viveks.info/search-engine-for-constituent-assembly-debates-in-india/
- Shefali Jha. “Secularism in the Constituent Assembly Debates, 1946-1950.” Economic and Political Weekly 37.30 (2002): 3175-180. Web.
- “The Constitution of India.” World Digital Library. U.S. Library of Congress, UNESCO, n.d. Web. 22 May 2016. https://www.wdl.org/en/item/2672/