A Secular Failure: Sectarianism and Communalism in Shayara Bano v. Union of India

Abstract

Proponents of secularism have often described their support for this form of governance in terms of the protections it provides against the excesses and dangers of religious nationalism and bigotry. In reality, however, the differences between secular and religious systems of governance are often overstated, with secularism’s promises being in conversation with secularism’s failures. This article explores one recent and important instance of such secular failure, namely that represented by the high-profile Indian case of Shayara Bano v. Union of India. This Supreme Court case concerning the legal legitimacy of a common Indian Muslim divorce practice—often referred to as ‘triple talaq’—animated sectarian and communitarian tensions in India and thereby failed to achieve the social peace promised by secularism. Indeed, during the course of arguing its defense in Shayara Bano, a prominent Indian Muslim organization ended up engaging in sectarian modes of argumentation, whereby aspersions were cast on the Muslim bona fides of certain persons and communities. Further, in the course of deciding Shayara Bano, a religiously diverse set of Indian Supreme Court Justices found themselves disagreeing along communal lines about either the necessity or ability of the secular state to ‘reform’ Muslim family law.