Constitutional Law

Safeguarding Constitutional Values in Troubled Times : LSPR in Conversation with Dr. Faizan Mustafa

Prannv Dhawan and Devansh Kaushik speak with Dr. Faizan Mustafa, Vice-Chancellor of NALSAR University of Law, Hyderabad, in an exclusive interview for LSPR.


LSPR sought the noted academic’s views on a diverse range of issues like minority rights, gender justice, the Triple Talaq and Sabrimala judgments, the Babri Masjid Dispute and the current polarized political scenario.

LSPR: The agenda on gender justice has become highly polarised and politicized over the last few years. The interests of gender justice and equality have come to be juxtaposed against cultural, religious or minority rights of particular groups. What do you think is the constitutional answer to these circumstances when much needed social reform is up against the bulwark of protected community rights?

The Constitution does provide for gender justice, and non-discrimination, Article 15 will apply to all situations, but the same constitution also guarantees freedom of religion. In my view, all religions are gender biased, it is just a question of degree. The older religions did not give women any right to property. Later religions like Islam gave certain rights but not equal rights in the modern sense. Earlier, women were themselves considered as property and were in fact subject of inheritance. Islam gave them full ownership rights. The whole idea that women can own property was itself revolutionary in the seventh century.

I would say that all personal and religious laws need some kind of reform. It is easy to reform the majority community’s religious law. That is why in India, we had the Hindu Code Bill, and in Muslim countries like Egypt, Tunisia, Algeria and Turkey etc, there was reform of Muslim law. Even in Pakistan while the Muslim Law was reformed , the Hindu law was not touched.

This is because minorities have a fear psychosis, and our liberal democratic constitution addresses this fear by not imposing reforms unless the communities themselves take up the initiative and come forward.

Judges are also not fully appreciating the kind of misuse of judicial forums and at times are themselves taking up the responsibility of reforming religious laws. There was a case of Prakash v. Phulvati from Karnataka. It involved a Hindu daughter who was given about one twenty seventh share in the property. She was given a share only in the self-acquired property of father. She contended that the 2005 amendment in the Hindu Succession Act, which makes daughter a coparcener, is a beneficial social welfare legislation and can be applied retrospectively. If this was retrospectively implemented, her share would have gone up to one eighth. She won the case in the Karnataka High Court. The Hindu brothers appealed to the Supreme Court, where 2 judges- Justice Anil Dave and Justice Adarsh Goyal decided against her and reversed the High Court judgement. So a Hindu woman was denied justice, and then the judges, in the second part of the judgement strangely wrote suo-moto that Muslim law is also very discriminatory, and instructed the registry to file the PIL. Thus, the Shayarana Bano case itself started in strange circumstances on the instructions of the court.

This particular bench has also given some strange judgments seriously undermining the gender justice. Justice Dave, for instance in one of his judgments said that if a Hindu daughter refuses to live with her mother- in- law, she is guilty of cruelty and the husband would be entitled to divorce her. He also said that- “If I become a dictator, I would make Gita compulsory.” How can the idea of a judge becoming a ‘dictator’ come to his mind? Also, in a number of domestic violence cases, where the woman won in the High Court, the Supreme Court overturned the verdict. So it has decided against women in all kinds of cases. In fact in a number of cases, the court has diluted the dowry law, domestic violence law, cruelty law to protect the interests of perpetrators of crimes against women.

I think this is not the way to go about the social reform. Normative changes in law either through legislation or through judicial verdicts cannot bring about the social reform. Supreme Court has simply set aside Triple Talaq, it has not declared it unconstitutional. Both things are different, yet the ruling party has stated a number of times in the Lok Sabha that the Supreme Court has declared it unconstitutional. There is a nuanced difference between ‘setting aside’ and ‘unconstitutional’.

Chief Justice Khehar in his judgement said that Triple Talaq is a 1400 year old tradition and is valid. He also opined that right to follow personal law is a fundamental right. He took personal law to the high pedestal of fundamental rights. Justice Joseph on the other hand says, that Triple Talaq is not valid because it is sin in Islam. I find his argument problematic. Adultery and homosexuality are also considered sins, but both are today legal. This is because we cannot change the scriptures. Even though the reasoning is problematic, Justice Joseph did not say that it is ‘unconstitutional’. He found triple divorce as unislamic and thus invalid.

He also said that it is not there in the Quran, and thus is not legal. This is again problematic. If we do not completely understand the nuances of religious law, we will come up with controversial judgments. For instance, by giving such reason, are you making an argument that anything which is in Quran will be accepted as valid and anything which is not there will be unlawful? Had triple talaq been in the Quran, by this logic it would have been be held as valid. Another example is slavery being there in Quran.

I would say that even if it is there, as a liberal and modern country, we should not permit this kind of practice unless it is divorce by mutual consent. Quran is not a book of law. it is a book of principles, stories and morals. It’s a source of law, not in itself law. Islamic law is jurist given law and therefore interpretation of sources is all important. These interpretations gave birth to various sects and schools of Islamic jurisprudence.

Now one of the most competent and learned judges of our time – Rohinton Nariman, not only adopted this ‘not in Quran’ line of argument, but also did not make any reference to ‘gender justice’ being at issue in the triple divorce. He said that the practice was arbitrary and therefore should be struck down. But how does he read triple talaq in the Shariat law? Shariat Act,1937 does not have the words ‘triple talaq’ or Talaq-e-Biddat in the statute. My point is that the rule of statutory interpretation is that a judge cannot add a word which legislature has deliberately omitted. Can you strike down a statue by first inserting such a word and then striking it down?

In a case as important as this, every judgment has a problem. I would not like to go with Chief Justice Khehar to say that personal law is a fundamental right, you can’t elevate it that high. And his other line of argument is that there was this one case in 1932 – Saiyid Rashid Ahmad vs Mussammat Anisa Khatun, that went to the Privy Council, which held triple talaq to be valid. That was the law, which he struck down, not as unconstitutional but just set it aside.

This is problematic, because in 1937, when the legislature was making the Shariat Application Act, which mentioned various kinds of divorce, but not the triple talaq. The obvious legislative intent is that it was not valid and that’s why it was not included in the Shariat Act. In 2002 itself, in Shamim Ara vs State Of U.P, the Supreme Court had said that divorce must be preceded by reconciliation etc. As of now, Shamim Ara is the law. So, what’s the point in declaring something that was already invalid, invalid again.

Regarding, the constitutionality issue, Justice Rohinton and Justice Lalit said that it was ‘unconstitutional’, but Justice Joseph did not agree, so there is no majority on the question of declaring triple divorce as unconstitutional. The Supreme Court also did not criminalize it, but the government still decided to criminalize it by bringing in ordinances repeatedly. However, in the DC Wadhwa case, re-promulgation of ordinances has been held as a fraud on the constitution. The bill was also later passed in the Lok Sabha. But more than that, the Law Minister had stressed on the 474 cases of triple divorces that happened since the judgment in 2017. But then this means the ordinances were totally ineffective. The Government is not right in attaching so much importance to the deterrent effect of three years punishment. Deterrence is a dated idea.

We must realise that on the one hand there is a constitutional commitment to gender justice and on another to freedom of religion. If a reform has to happen, it should happen through legislation after creating favourable ground for its acceptance in the masses. I am all for gender justice, but gender justice should not be done this way. We should prepare the ground, educate people, have a dialogue with the Ulema, because the Ulema continue to have much greater hold over people than liberal intellectuals. We have not done enough in terms of education, an example is the Hindu Succession Act, 1955 which gave at least in the self-acquired property, equal shares to the daughter and the son. Yet, today ownership of property by Hindu daughters remains small. This is because the father usually makes a will in favor of the son. That’s why we should not over-estimate the power of law as an agent of social reform. We should prepare our society for change. Change should ideally come from within.

LSPR: About the further implementation to this judgment, what do you think are the steps that the community itself could take to affirmatively follow it? And is there a possibility of a constructive consensus between the state and the community towards gender justice?

Within the community too, when reform is imposed through the top down model, the debate is hijacked by the fanatics. And since fanatics control the masses, government talk to these ulema not to Muslim intellectuals. Still, there should be some constructive dialogue. The Muslim clergy should realise, looking at the triple talaq controversy, that what is being demanded from Muslims is to follow more rational reasonable procedure which is given in the Quran. The court is not prohibiting the Qur’anic procedure, it is asking them not to follow something which they themselves consider as sin.

I absolutely feel that there should be no triple talaq. Instant triple divorce is a negation of the scheme of divorce in Islam. Islam does not want you to take a decision in anger. Instant model of divorce takes away man’s freedom to revoke the divorce. That husband unnecessarily excludes his own options. So this is bad for him, for her and the larger society and is certainly against the constitutional scheme.

There is an absolute necessity now to educate Muslim masses, women and even non-Muslim friends about various types of divorces, which Muslim men and women can use to dissolve marriage. Islam also talks about divorce by mutual consent. Muslim clergy should come forward and resolve that the only form of divorce which they will follow will be divorce by mutual consent. It will be compatible with the constitution, their religious law and modern times.

LSPR: About the ‘political interest litigation’ in the country wherein certain majoritarian and political issues which cannot be passed in the parliament, are somehow brought before the Supreme Court to give a judgement upon. This does not set well with the constitution and the society’s interest. One example of that could be the extremely political case of Article 35A and 370. The Supreme Court is the most unlikely institution to solve it, yet it allows itself to be dragged into this political feud. What should be the court’s response?

The court is no more proactively coming forward to take sufferings of people seriously as it was doing 1980s and 1990s. It is now becoming conservative. True, there has been an abuse of PIL. A number of judgments have come in where the Court has said that it will not entertain petitions in case there is a personal interest, etc.

This politically motivated PIL should not be entertained. On Article 35A and Article 370, already a 5 judge verdict is there. There is no need to reopen it. There have been cases where the court decided something and just five- six months later, it has again been re-opened. The Court is becoming a forum which certain motivated people are trying to use. There is systematic targeting of Muslim community. One BJP lawyer keeps filing motivated PILs and it is sad to see that court’s valuable time is wasted on such petitions. A recent one called for the Uniform Civil Code to be enacted and that the Law Commission should be asked to draft it within 3 months. In 2018 itself, the Law Commission had examined this issue and said that it is neither feasible nor desirable to have UCC. Even when the commission had already taken a view, in less than six-seven months again the issue gets opened up. Supreme Court should not entertain such petitions. In any case, UCC is a policy decision that should be left to the government.

LSPR: The Supreme Court has set up a committee to mediate the Babri Masjid Case. What is your take regarding this long pending legal dispute? How should the court respond to political statements which state that unilateral temple construction would be taken up irrespective of the judgment. Given that the dispute is highly political, what is the most rational judicial approach to resolve this?

Prime Minister Modi has explicitly said that he would go by the court’s judgment. The government’s official line is also , as should be, that it will go by the judgment. It is in political meetings that some of their leaders took a different line. The demolition of Babri Mosque was not only the demolition of a rare piece of architecture, it was a blot on our secularism. Vajpayee Ji too was very sad about this tragedy. All newspaper editorials condemned it. India’s international image as a liberal-secular democracy went down.

There exists the Afcons Infrastucture judgment (2010) of the Supreme Court in which it was said that where public causes are involved, mediation may not be there. In this case, some parties are already refusing mediation. Nirmohi Akhara refused while the Muslim parties immediately agreed. It also went to the court to wind up the mediation process in July 2019. Within the Hindu parties, there is a difference regarding who will have the right on offerings in this temple. The real debate is that – the money. As and when the Ram Temple comes up, it will replace Tirupati as the richest Temple of the world. So, who will have a right on all that money? That is the real issue. I feel that the court was probably trying to use the time, when elections were going to happen, because relevant documents had not been properly translated. So, they allowed another effort while these translations were being rectified. For such matters, mediation is a good call. The committee has said in its first report to the court, that there has been some progress. So, let us hope for the best. I am also surprised to see the court’s response to the mediation panel. It had given the panel time till August 15. Why then did it later say in response to the petition against mediation that if the panel does not show progress, hearing will start on July 25. Again, it gave time only till July 30th. In a matter of this magnitude why the court cannot wait for two more weeks is difficult to understand.

We should also understand that in a contentious and emotional matter like this, who will have the courage to negotiate in such a short time? If X says give it up, immediately the fanatics will say that this man has been purchased by the government. So, the credibility will go away. Ideally the court should not shy away from pronouncing the judicial verdict, it’s a civil dispute, and it is first appeal. They should judicially decide it. Anything apart from a judicial verdict will be controversial.

But, If the Muslim party wins this appeal, they should still hand it over to Hindus for the construction of the Ram temple. They should ideally say that they will themselves construct such a temple for our Hindu brothers.

Regarding the offers of giving land in exchange, while this may not be constitutionally right, in a plural society give and take does happen. The problem is that what assurances can be given to the Muslim community that such claims will not be made about other mosques. The VHP website claims 3000 mosques, even though there is a Places of Worship Act, 1991, which states that whatever status of a place of worship was there in 1947, other than Babri Mosque, that will be preserved.

Now, today’s political dispensation says that they will uphold this. But what about Yogi Adityanath or Pragya Thakur? Muslims are not opposed to Ram Temple. He is revered by everyone. Allama Iqbal called him ‘Imam-e- Hind’. They could have given up this claim long back but due to the rhetoric of extreme Hindu right, they too hardened their stand. Their insecurity about other places of worship is the root cause of the problem. Lately cases of lynching have further created a sense of insecurity amongst them. To solve this long pending issue, government should proactively try to win over the trust of Muslims. Prime Minister Modi himself took the bold and appreciable initiative when he added the word ‘vishvas’ to the slogan of ‘sabka saath sabka vikas’. Let BJP leaders follow the leader and not indulge in hate speech on a routine basis.

LSPR: What do you think about that the notion that when such issues are solved through reconciliation of these disputes, then the idea of justice is missing? Shouldn’t there be some retribution for unilaterally demolishing a mosque overnight? What about the presence of Sri Sri Ravi Shankar in the committee?

Ideally, the criminal aspect should be decided first and perpetrators punished. We have not created the conducive environment for mediation, that could have happened had some people been punished in this criminal case. I am glad that the Supreme Court bench headed by Justice Nariman has finally fixed the time frame of nine months to complete the criminal trial. The bench has extended the retirement age of the concerned judge till April,2020.

In mediation, we do not go for justice in the technical sense. When justice happens in a judicial verdict, one party loses, another wins. In mediation, there is a win-win situation for both the parties and nobody really loses. That is why a mediated solution has to be such that both communities feel that they got a fair deal.

Regarding Ravi Shankar, I would not like to see him there, because he’s already committed and has made some controversial statements that- “if Babri Masjid is not given up, India will become Syria.” This I think is passing a judgment on all Indian people. Ideally, there should not be any religious person in the mediation committee. I have also written about why a Muslim should not head the committee, nor a Hindu.

One more alternative is that government should take over the land and give some substantial package to the Muslims so that they do not get the feeling of being the loser in the mediation.

LSPR: The Supreme Court judgement on Sabarimala raised a number of concerns about the traditions of local communities. Political forces have transformed Sabrimala into a political theatre from which political dividends could be reaped. Should the Court intervene in situations where there is a possibility of social rupture considering the repercussions of its progressive judgements? Is there a need for more societal dialogue about reform instead of judiciary-led reform?

Just because the court said that let women come in, it won’t happen. In the latest debate on the Triple Divorce Bill, one member did say in Lok Sabha that let the government take all BJP women MPs in a special plane to Sabrimala, if its commitment to gender justice is genuine. Moreover to say that triple divorce is a gender justice issue and Sabrimala an issue of faith is absolutely wrong. This is an artificial distinction.

A woman devotee herself will not enter if she thinks that would invite the wrath of the Lord. So, we are in fact talking of rights of non-devotees. In the recent case by Hindu Mahasabha President of Kerala on women entry in mosques, CJI did say that let a Muslim woman challenge it. Again in this issue, we did not engage with the concerned people, that Lord Ayappa is a powerful God whose celibacy is not going to be affected by the mere presence of young girls.

Regarding whether the judiciary should have stayed out of it, there was already a judgement of the Kerala High Court, in which it had been proven to be an ‘essential religious practise’ of Ayyappa devotees. The Supreme court should not have undone this. The court should not become clergy. What the court said, in order to circumvent Article 26 was that they cannot consider Ayappa devotees as a separate sect. This too is problematic. A sect need not be different from the existing group in every single way. I think there is a case for recognizing Ayappa devotees as a separate sect. Again, religious reforms is not the court’s agenda, it should be the agenda of the Parliament. I am not against reforms. I am all for the right to equality. My only limited argument is that we should undertake reforms on the basis of constitutional mandate without any recourse to the essentiality doctrine.

LSPR: After the recent landslide victory in the elections, there have been concerns in the international media, about the future of Indian democracy and especially that of its minorities, with respect to the rise in mob lynching and communal violence. There have been suggestions of having a mass crime law, following the supreme court’s verdict on lynchings. But there has been no affirmative action yet by the central or the state governments, just passing of the buck. What is the answer to this?

There is a global trend of democracies turning into the authoritarian regimes. One way to look at this is that people are now so dissatisfied with the liberal democratic setup, that they don’t mind totalitarianism. If you look at global figures, rise in authoritarianism, totalitarianism and suppression of rights is so much that only 4.5% people today in the world live under genuine democracies. In 96% of democratic countries, democratic values are down. This is a matter of concern for humanity as a whole.

After the elections, the Prime Minister for the first time used the word ‘minorities’ and acknowledged that they are living under fear. He asked his party to win over the trust of Muslims. I had welcomed the Prime Minister’s statement, I am an eternal optimist. I feel that he is the one man who can really discipline and tame his cadre. His image as a popular mass leader is now fully established. To be accepted as global statesman, he may soon emerge as the true defender of Indian diversity.

I don’t buy the argument that the future of Muslims is pretty bleak. In fact, some are trying to create this kind of fear amongst the minorities. The Mughal empire ended, partition happened, Babri Masjid was demolished, Gujrat riots happened, yet the community survived. In the civilizational history of a community, such up and downs do happen, I’m pretty sure that the country’s majority has voted for the Prime Minister because they think that right now he’s the best person to lead the nation. It is a vote for nationalism and for the pro-poor policies. It is not a vote for mob-lynching and hate, it is a vote for better governance. The opposition did not put up a credible candidate and the people were not convinced about their unity. So to read this verdict as the endorsement of the suppression of minorities will be misreading. There may be majoritarian tendencies but the institutional mechanism of the Supreme Court, the civil society etc. will act as safeguards. Indian secularism has not survived because of the minorities, it has flourished because of Hindus who are tolerant, liberal, secular and don’t hate minorities. Nothing on earth could have prevented them from declaring India as a ‘Hindu Rashtra’ after independence on their own they decided to adopt secular polity. That is why this year in the Eid Greetings, there was a concerted effort by our Hindu brothers to reach out to Muslim brothers in a big way. I have great hope in my country, in the Hindu community, and in the constitutional institutions. I know situation is alarming but my faith in our Indian civilization remains intact.

If the state is not able to give a citizen the security of life, then it has failed in its first duty and is in breach of social contract. The state was brought into existence to protect people’s lives and their properties. As far as a special law on lynching is concerned, merely enacting a law is not the solution. We may pass a law but need to do more. We must make concerted efforts in removing hate from our society. I am happy that the Prime Minister himself has made several strong statements against mob lynching. The problem is that the monster of hate and lawlessness is now out of everybody’s control.