Republic Day’s gift
If our Constitution were disrespected, we would not have wanted to enter its control room, as often as we do, to justify our political positions.
Legal robes hide our Constitution’s formidable musculature. This is evident, in recent times, from the way Sabarimala and triple talaq have been dealt with in the courts. In this connection we need to keep in mind two sets of considerations. First, when politicians quarrel over diverse interpretations of the Constitution it shows that they, knowingly or unknowingly, hold it in high regard.
If our Constitution were disrespected, we would not have wanted to enter its control room, as often as we do, to justify our political positions. One would never fight over something that is intrinsically without value. The Constitution is also an active participant; it is not a tree that has to be shaken every time.
This brings us to the second issue. All too often we find morality and constitutionality at loggerheads, and that is actually good news. As the two function on contrary principles one can hardly expect them to be on the same side.
Moralists invariably shut people in different boxes. This is done on the basis of caste, religion, language, age, etc, with clear action prescriptions, if not a widely accepted how-to-do kit. A democratic constitution dynamites these lids open because it operates in the opposite direction; it promotes inclusive citizenship and not exclusive identities.
Sabarimala activists and supporters of triple talaq are moralists because they actively encourage divisions among people who should be united as citizens. It is then the job of the Constitution to set us right whenever we are tempted, by our essentially pre-democratic instinct, to take the high moral ground.
A liberal, democratic constitution does not come easy; it is the outcome of long deliberation as our Constituent Assembly debates testify. Morality, on the other hand, is effortless as it requires prejudice, not intellect, to bolster it.
Distancing oneself from others begins and ends with loving oneself to distraction. A democratic constitution, contrarily, demands we make common cause with those who are different from us for our mutual advantage. Therefore, to expect a constitution to behave morally is to throw in the towel before the contest has even begun.
When Sabarimala separated men from women of a certain age, the prime mover was morality and not the law. When the Supreme Court struck it down, it acted constitutionally, that is legally, because it cannot suffer segregation of any kind. But Sabarimala, be it known, also provided the occasion to demonstrate the strength that five unarmed judges can have over a mob.
One may disagree with what the judges say but this is something only other judges can overturn, not roadside propagandists. If the battle still rages on this matter it is because Sabarimala activists accept the fact that their morality must get the Constitution’s sanction.
Likewise, with triple talaq. Here we have another moral issue because it is essentially separatist in intent as it privileges men over women among Indian Muslims.
The Constitution must obviously oppose this foursquare and it does not require much foresight to conclude what the Supreme Court’s decision would be. It is unthinkable that a liberal democratic constitution would allow for such gender based discrimination.
In these conditions a moralist cannot resist but reach out for blunt instruments. Yet, once the courts have derecognised instant “triple talaq” it is now of no consequence whether a Muslim man utters these words, or not. He might as well say “cheers” or “howzatt”, or anything else, thrice, or in multiples of three, but that would make no difference.
As far as the law is concerned, declaring “talaq” thrice in quick succession is a useless exercise if a Muslim man has divorce on his mind. It is at this point that moralists come in to wreck the furniture, but the Constitution will always be the adult in the room.
One set of moralists want the man to be punished for simply saying “talaq” thrice, even though those words are now useless and accomplish nothing. This is a moral position as it separates Hindu men from Muslim men and conceals the existing constitutional law against domestic violence that applies to all.
What is relevant here is that as talaq is legally invalid, a Muslim man can be charged for turning out his wife without proper economic support. This is a straightforward case of domestic violence and, according to law, it holds not only for Hindus and Muslims but for every community.
Moralists on both sides don’t like this. Muslim moralists and virtuosos want their male co-religionists to remain privileged. On the other side, those who believe triple talaq is fundamentally punishment worthy are being moral too.
This is because they are separating themselves from the Muslim community by not emphasising the religion-neutral law against domestic violence. Fortunately, both sides are appealing to our Constitution and this can only make it stronger.
The Indian Constitution has faced many such moralist challenges and has come out the winner. When we look back at these victories, every Republic Day has a special quality about it. If the Rajpath is festive today it is because many Janpaths, with diverse moralities, have surrendered their egos and merged into it.