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

Abstract Proponents of secularism often describe their support for this form of governance in terms of the protections it provides against the excesses, dangers, and coercions of religious governance. 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 the high-profile Indian case of Shayara Bano v. Union of India deciding the legal legitimacy of “triple talaq ,” a common Indian Muslim divorce practice. During the litigation of this case, 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. In all this, sectarian and communitarian divisions in India were heightened, and the social peace and religious freedom promised by secularism were severely undermined.