A Case Example

One can therefore look outside and beyond the kite to select what one consid­ers the right tools for navigation and balancing in any particular scenario, either in making law or breaking law.

An issue that featured repeatedly in the debates during this conference was the judicial decision to ban the triple talaq in the case of Shayara Bano vs. Union of India & Ors., decided by the Indian Supreme Court in 2017. Being most recent, of course this holds prominence in the minds and consciousness of Indians. But can any state law really ban all forms of triple talaq, as many observers seem to presume? Officially, Indian state law (corner 3 of the kite) controls and regulates the sphere of religion (corner 1). Yet as we found already, the power of corner 3 cannot completely erase the power of corner 1; instead it has to engage with it in a constructive manner to avoid a crashing kite.

We suggest there is, with the help of kite-flying methodology. Our major example is the world-famous Shah Bano case decided by the Indian Supreme Court in 1985.¹⁷ In this case, Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, the background was that an old divorced Muslim wife had been seeking to obtain a fair post-divorce maintenance payment from her well-off ex-husband, a senior lawyer. She had won her claim at the High Court level, but the husband appealed against this decision to grant his ex-wife some pithy sums of mainte­nance beyond the iddat period, arguing in the Supreme Court that this amounted to an infringement of the basic principles of his religion, Islam. Famously, five Hindu Supreme Court Judges heard this appeal. The order of the Court, direct­ing Shah Bano’s husband to pay her proper maintenance, since the interpretation of ‘wife’ under section 125 of the Criminal Procedure Code of 1972 (CrPC) included ‘divorced wife’ as well, created not just a lot of tensions, but serious public unrest.

The legal technical argument would appear to be that corner 3 of the kite, in the form of secular state law, had simply exercised its power to override corner 1 of the kite, the Islamic personal law, regarding the contested matter of post­divorce maintenance. However, what was really happening here? The Muslim ex-husband wanted the Court to overturn the already existing gender-protective position on this subject matter, established by the earlier Supreme Court case of Bai Tahira v. Ali Hussain Chothia, AIR 1979 SC 362.

Shah Bano’s ex-husband sought to defend Islam against such state powers, and thus attempted to win his case by claiming that the powers emanating from corner 1 of the kite, for him as a Muslim, should annul the state-based claims coming from corner 3. It is evident that this attempted crashing of the kite was prevented by the unanimous verdict that the ex-husband had to pay. However, this decision caused public unrest among Muslims. Now the Indian state, at that time with Rajiv Gandhi as Prime Minister, was in deep trouble, as the rioters alleged that Islam had been negated. In kite terminology, corner 1 had been cut out of the kite for good. Faced with public unrest and probably also threats related to Muslims as a vote bank for his party, thus seeing corner 3 endangered, Rajiv Gandhi swiftly moved to calm the rioters by promulgating the Muslim Women’s (Protection of Rights on Divorce) Act of 1986. This brief Act was presented in such a way that it became popularly, and by almost all scholars and activists, perceived to have excluded Muslim women from the beneficial appli­cability of Section 125 CrPC. The 1986 Act, in effect, was morphed by the press and those who opposed the Shah Bano decision to have reversed the effects of the decision of the Supreme Court in the Shah Bano case.

However, some divorced Muslim women continued to fight for their main­tenance rights. Subsequent trends in the decisions of several High Courts from 1986 onwards soon revealed a different scenario, as Muslim ex-wives used implied reference to all four corners of the kite to secure post-divorce maintenance. Meanwhile, the Shah Bano decision had been appealed on various constitutional grounds, but this decision was kept pending, notably for 15 years. At a strategic moment, soon after the terror attacks in the USA of 9/11, the 2001 Supreme Court decision in Danial Latifi v. Union of India, AIR 2001 SC 3958 and 2001 (7) SCC 740, was then suddenly promulgated. This decision ruled that after all, the Shah Bano case had all along been good law, and divorced Muslim wives in India were entitled to reasonable post-divorce maintenance. Further, Section 3 of the 1986 Act was to be interpreted in an activist way, to ensure that Muslim women received, within the iddat period, a reasonable sum of maintenance that would provide for their welfare for years after the divorce. The fact that this momentous decision entitled divorced Muslim women to maintenance amounts that were far larger than the existing cap on maintenance payments at the time under Section 125 CrPC would apear to allow, was swept under the carpet in this long and probably deliberately tedious judgment.

If one thinks further about how and why these decisions arose, and examines their consequences in the intervening gap, one would have to draw on the ethics and values of Islamic law itself, as well as broader socio-economic considerations within Indian law and society at the time. This meant that any decision result­ing in destitution for women and children (corner 2 of the kite) would not be tolerable for the state law (corner 3), but would also be unacceptable in light of human rights principles (corner 4). Simultaneously, destitution would put the woman’s body and soul at risk even within the context of religious values (corner 1). Taken and read together, this particular theme of seeking to protect Muslim divorced wives’ rights to maintenance confirms that the Indian state (acting from corner 3), within that sub-kite probably realised that it had to co-operate with religiously grounded law in order to ensure Muslim women’s socio-economic welfare. One would do this, probably, by appealing to the moral risks related to zina, as indicated.

This reasoning shows how any personal law conflict regarding law and reli­gion, within a pluri-legal context and the conceptual framework of the kite of law, may be analytically interrogated and tested in terms of the respective values and inputs of the four kite corners as useful components for socially, economi­cally and morally responsible action. An important consideration here may also have been simple fiscal prudence, as the Indian state is evidently shifting such welfare burdens towards the families concerned¹⁸ (Menski, 2001). To reiterate, this complex method of kite balancing cannot, literally, cut out any corner, since then the whole entity would crash. An alert kite model always needs to use all four corners, probably placing the least-liked element last. The preceding case scenarios confirm that failure to remember such operating principles risks caus­ing significant injustice, most likely for already vulnerable stakeholders such as divorced Muslim women.

Not directly on Muslim Personal Law, but connected to this field, there is also the case of Vishwa Lochan Madan vs. Union of India and Ors., decided in 2014 by the Supreme Court. This case was brought by an activist seeking to have Muslim dispute settlement mechanisms in India declared illegal. The Court held that dar-ul-qazas, dispute processing forums run by the Muslim community in India, are not courts, but informal justice systems with an objective of bringing about amicable settlement between parties. The Supreme Court refused to ban such forums, in fact it highlighted their potential benefits. This pragmatic approach continued to allow needy individuals the opportunity to forum shop and decide whether or not to approach a state forum for the adjudication of their dispute, or a dar-ul-qaza. Here, the Court skilfully protected corners 1 and 2 of the kite of law against a challenge arising from corner 4. It appears that societal practices took the lead in guiding the Supreme Court to its final decision, but also an element of practicality and self-interest of the courts, given the large number of cases pend­ing before state courts. Banning dar-ul-qazas would have meant increasing the courts’ burdens to deal with an even greater number of disputes. Many disputes are currently being handled by forums such as dar-ul-qazas, which were put under explicit obligation by this decision to make responsible decisions. Here again, then, the Supreme Court proceeded similarly to its approach in the Shah Bano judgement, following a 3-2-1-4 or 3-1-2-4 pattern. This places modern human rights concerns last, and gives explicit acceptance to reasonable religious and soci­etal stakeholders in dispute settlement. Notably, there is no judicial appetite for claiming a state monopoly of dispute settlement. The principle of self-controlled ordering remains ‘on the books’, as it were.

The more recent Supreme Court decision in 2017 that declared triple talaq as unconstitutional, Shayara Bano vs. Union of India & Ors., on a close reading of the judgement, reveals how extensively the judges relied on Islamic scriptures

to ground their decision. The decision definitely draws on religious sources (kite corner 1) and refers to human rights norms (kite corner 4) in several sec­tions. It clearly starts from the context of the Indian constitution (kite corner 3), quoting constitutional values and discussing what they mean in the context of the practice under challenge, located in kite corners 2 and 1. The defendants furnished the Court with several pieces of research and proof that pointed to societal practices in the context of triple talaq and how it had evolved into an accepted practice. However, in our reading, it appears that the Supreme Court paid little heed to these submissions. The dissenting judges in their reason­ing concluded that the Muslim Personal Law did not have the force of state law, a reasoning clearly based on considerations of everyday life practices of the Muslim community. The majority judgement, however, seems to have decided that irrespective of social practices and the reality of everyday affairs for Muslims in India, this damaging and gendered practice of instant divorce needed to be declared illegal. The majority judgment has, in a sense, activated the paternalistic aspect of state law, leaving it not to the community to amend their practices, but taking the decision for them. This appears to deprive corner 2 of the kite, in this case, of any legal authority and rejects the socio-religious argumentations submitted.

This raises concerns about the viability of such a judgement in terms of imple­mentation. How smoothly this kite argumentation will fly remains to be seen. More ethnographic work could probably be a good starting point in this direc­tion. What may already be a positive effect is that a Muslim wife at risk of being instantly divorced in India can now tell her husband that his action will be illegal, violating kite corner 3 in light of the Supreme Court’s judgment. Whether such a reminder on the part of the wife, or someone speaking on her behalf, will be effective, would of course depend on power balances in specific family situations. What may be more effetcive as a deterrent could well be the reminder, taken from the Shah Bano line of cases, that a divorcing Muslim husband in India nowa­days has onerous post-divorce maintenance obligations, which are more easily activated through recourse to courts.

In all of these preceding cases the judges, as decision makers, located them­selves as citizens and agents of the state first, and thus began the process of deci­sion making from corner 3. But there are still some issues within personal law, where India’s judges have thought differently and appear ready to connect their starting point of decision making with sources of law in corner 2 (society) and corner 1 (religion/ethics/values), thus endorsing Muslim Personal Law. A promi­nent example here would be the subject of Islamic marriage. Muslim marriages in India, like other marriages (with few exceptions), are fully recognised as legally valid by the Indian state without any insistence on registration by state authori­ties. The courts continue to apply the principle ofpresumption of marriage, often relying on laws that find their sources in local customary practices (corner 2) or religiously inspired normative patterns (corner 1). This, in itself, has the potential to secure women’s human rights, hence here it is the state that is the bystander and accepts the legal activities in the other corners, rather than dictating rules and processes.

Similarly, Indian Courts have dealt with the subject of polygamous marriages and more recently the practice of divorce under Muslim Personal Law by show­ing respect for and recognition of Muslim patterns of behaviour. We see that the Indian courts, across the board, lean more in favour of acceptance of local practices while deciding such issues, applying presumptions and respecting cir­cumstantial evidence, rather than adversarial argumentations. But what happens when the communities themselves cannot agree on the rules that govern certain practices? The problems around the triple talaq are a perfect illustration of this scenario. Members of the Muslim community were divided on the validity and Islamic morality of this particular practice and the circumstances under which it would be permissible. The subjects involved, then, determine important aspects of the nature of the relationship of the Indian state with Muslim Personal Law. As before, many such cases will not reach official state courts, it appears. This flexibility in the extent of compliance with what would appear to be official state law, after all a decision of the highest Court of the land in regard to triple talaq, may not be seen as a measure of lawlessness, but also as a device to keep the clearly pluri-legal kite of Indian law safely in the skies over India, albeit with some turbulence.

What, then, do we make of this apparently messy plural legal system that we have described and analysed for India? Testing decisions against constitutional values, as is already often done, is one way. But how does a kite-flying agent navigate when constitutional values protect both the freedom of religion, funda­mental rights, and the right to life under Article 21 with its ever-widening scope? What then is the right balance? What would produce good ‘living’ law? Finding the right answer is not a cause for worry, because such dilemmas are faced all over the world, first and foremost, because there is no singular answer to the foun­dational question of ‘what is law?’. Definitions of law have been forever debated and contested. Therefore it may be a good idea to step away from self-indulgent theory for a bit and to adopt a more realist approach. The evidence from India shows that context-sensitive decisions that may not have a universal appeal, but nevertheless measure up to balance the competing case-specific perspectives at hand, may be most sustainable and suitable. They are certainly, normally, much cheaper than filing huge test cases.

The kite model can provide useful pointers to understand and analyse how different decision makers, including state courts, balance competing perspectives in questions on the spectrum between state law and personal laws. If one does a bulk analysis, one could see patterns in the manner in which the Indian state proceeds. An experienced researcher could also decipher differences and nuances between cases in which the state itself is more likely to lean towards state law, or is ready to include and respect religious law and/or local practices. This pluri-focal strategy is important, also because we cannot always see personal law as one uni­form block dependent on ‘religion’. Personal law itself is so intensely plural, and it is important that local sociocultural practices are separated from more ‘religious’ personal laws, since local ideas of order are not always grounded in religious law per se.

Overall, the kite model provides a step-wise format to ascertain the largely invisible mental processes of law-related decision making, through which diversely connected actors/agents navigate specific kite balances. Tracing such steps enables the researcher to analyse any decisions, whether reached in local dis­pute settlement contexts or in state courts. Bulk analysis is likely to reveal certain patterns, telling us in what types of cases which actors lean more towards which kind of law. How law-related actors identify themselves will also be a pointer towards which corner of the kite they will start from, and which angles they will then take up next. The nature of such decision-making trajectories itself will often contain elements that indicate the corners that follow next, with some hav­ing more and others having lesser relevance in any particular decision as a whole. What will also be relevant to watch out for are the distances travelled between the kite corners, as they are definitely not the same in the various observed scenarios.

VII.