Confusion Worse Confounded: Good That Instant Triple Talaq Struck Down, but Supreme Court Could Have Simply Reiterated Its Own Sensible Ruling In Shamim Ara Case

August 23, 2017

Confusion worse confounded. This is how I can best describe the way the Supreme Court chose to make public its views on triple Talaq. The learned Chief Justice of India (CJI) preferred to read first the operative part of his judgment. Within minutes TV channels began telling the nation that the apex court had refused to interfere in this matter of national importance on the plea of people’s religious freedom and ruled that the practice of triple Talaq is not repugnant to the Constitution of India. Only when concluding paras of the two other separate judgments were read out it became clear that what had been pronounced first was in fact the minority judgment.

Supreme Court of India

The marathon hearing of the triple Talaq case by what has been aptly described as an “inter-faith” bench was concluded on May 18. I have been wondering why the court needed more than three-and-a-half months to decide an issue concerning a customary practice which amounts to a blanket violation of the international human rights law and clearly flies in the face of the Constitution. The cat is now out of the bag. The learned CJI had to pen 272 pages to conclude that the abominable custom of triple Talaq is an “essential religious practice” of Muslims and enjoys protection of religious-liberty clauses of the Constitution. While the Muslim judge on the bench simply approved the learned CJI’s views, Kurian Joseph wrote a separate 27-page judgment and Rohinton Nariman another running into 96 pages which U.U. Lalit endorsed. Constituting the majority judgment of the court, these had to prevail and the order of the court at the end of the 395-page split verdict had to be, “In view of the different opinions recorded by a majority of 3:2 the practice of triple Talaq is set aside”.

It may be a case of the proverbial all’s well that ends well, but it leaves some curious questions to be answered. “There can be no doubt, and that is our definitive conclusion, that the position can be salvaged only by legislation,” says the minority judgment, adding that “unfortunately the Union seeks at our hands what clearly falls in its own”. It then proceeds to “direct” the Union of India to consider appropriate legislation. It is, to say the least, paradoxical to declare a religious practice to be constitutionally protected and then “direct” the state to legislate against it. Does the learned CJI mean that an essential religious practice, even though protected by the Constitution, can also be done away with by legislation?

Decoding the Supreme Court Verdict on Instant Triple Talaq
Toward the end of his judgment the learned CJI said “till such time as legislation is considered we are satisfied in injuncting Muslim husbands from pronouncing Talaq-e-Bidat for severing their matrimonial relationship”, adding that the injunction will initially remain operative for six months, would stand vacated if legislative process for “redefining” triple Talaq commences earlier, but if the said process contemplates abolishing the practice, will remain in force till this is finally done.

First, how could the court impose an injunction on the exercise of an essential religious practice protected by the Constitution? And, then, what will this injunction mean, and how will it be enforced? What will be the legal status of a triple Talaq pronounced in violation of the injunction? Will it effect a single revocable Talaq — this is how triple Talaq has been “redefined” in Muslim countries which the minority judgment cites — or will it effect an instant divorce as usual but the violator would be liable to be punished for contempt of court? I feel, with due deference to the learned authors of the minority judgment, it smacks of a confused thinking and reflects an aspiration for reform without bearing the brunt for it.

The reasoning and conclusions of the other two judgments sound immensely rational and convincing. Kurian Joseph’s assertion that the apex court’s ruling in Shamim Ara (2002), reiterated in several later cases saying that a Talaq by a Muslim husband can have legal effect only if pronounced in full compliance with the true Islamic procedure for it (by implication of which triple Talaq has no legs to stand on), “is the law applicable in India” qualifies to be seen as the most sensible and hence highly appreciable observation found in the 395 pages of all the judgments read together.

The judgment of R.F. Nariman and U.U. Lalit declares that the Muslim Personal Law (Shariat) Application Act 1937 “insofar as it seeks to recognise and enforce triple Talaq” is ultra vires Article 13 of the Constitution (pronouncing all old laws in force that violate the fundamental rights to be void). I must point out that the Shariat Act does not specifically mention triple Talaq among the subjects in which Muslim law shall be the rule of decision for the courts; it uses only the word “Talaq” and clarifies that it includes Khula (Talaq at wife’s instance) and Mubarat (divorce by mutual consent), etc, but does not enlist triple Talaq as a form of divorce. Yet it is good that this separate judgment of the two learned judges does not leave any room even for arguing that “Talaq” implies triple Talaq.

Coming to the final order of the court based on the majority view, one may ask what will be the effect of “setting aside” the practice of triple Talaq? Will it be a nullity and effect no divorce at all, or will it effect a single Talaq with a cooling off period of about three months during which the man can revoke it and, failing that, the parties can directly remarry (without the so-called Halala)? A clue is found in Kurian Joseph’s judgment which asserts that the decisive law in India is as set out in Shamim Ara to the effect that a Talaq to be legally recognised must have been pronounced in a step-by-step compliance with the true Islamic procedure. As per that procedure, Talaq coupled with the word “three” or repeated thrice would count only as a single revocable divorce. How I wish the bench had just reiterated Shamim Ara, unanimously, approving this implication of the very sensible ruling given 15 years ago.

The writer is former chair, National Minorities Commission and member, Law Commission of India. The article first appeared in the Indian Express and is bein reproduced here with the permission of the author

A Former PHD Student, a Dalit Dies in JNU: Administration Unconcerned

August 23, 2017

Ghanshyam Das

Ghanshyam Das, a Dalit and a former Research Scholar at Jawaharlal Nehru University, died on the JNU campus on Sunday, August 20. He was pursuing his PhD from the Philosophy Department of the University. Das, a Dalit student, was also an UPSC aspirant. Das, according to close associates and friend had begun suffering from netal depression, soon after he couldn’t complete his course. At the start, the researcher stayed at the Students’ Activity Centre; later he had built his own little tent in the campus premises, near the 24/7 Dhaba eatery.

That is Prameet Kajal a student from the School of International Studies on his FB post reacts to Das’s Death:Another student. Kundan Kumar wrote about his interaction with Das on 3 April 2016. Sreelakshmi, a PhD student from the university recalled her interactions with the researcher and said that she first noticed Das staying at the “Hut” near 24/7 Dabha in March 2015. She stated that Das used to seek the help of students to pay for his food. “A month back when a friend and I went to eat at the Dhabha, Ghanshyam asked for some money. We gave it to him and he made us write our names and sign in the Diary he kept,” she said.

JNU officials appear without concern about the incident. No one seemed to take the responsibility for the incident and instead passed the buck to the other departments. Newsclick contacted Prof. Umesh Kadam, the Dean of Students, who is responsible for “the general welfare of Students”, and according to him, the news of Das’s death wasn’t of any concern to his office. It was the Registrars’ responsibility to keep track these incidents. When contacted, the office of the Registrar informed, that he was on official tour abroad. The Public Relations Officer of the University was also contacted by phone, and she too had no idea about the incident. Instead, she asked the reporter to contact the security office. The security officer, on the clause of anonymity, said the police was investigating the case.

Mohit K Pandey, President of the Students Union, speaking to Sabrangindia said that the university was not at all sensitive to the needs of the students, especially the ones who needed institutional help to look after their mental health. Recalling an incident with the Rector, Chintamani Mahapatra, Pandey said: “The university wanted to throw out Ghanshyam Das from the University campus instead of looking for medical help for the former Research Scholar”. Except for a few students, no one from the university was present at the hospital when the post-mortem was being conducted. Pandey said that the post-mortem report concluded that Ghanshyam died from “Lung Infection”. This is the second death of a Dalit student in the university in a span of six months. Mutthukrishnan, an MPhil student had committed suicide in March this year.

What India Needs is More Gender Just Laws, Including Personal Laws, for Its Women

August 23, 2017

First Published on: June 12, 2017
Leveraging Our Laws: A Comparative Account and Conscious Effort to Strengthen Various Personal Laws in India

India – a kaleidoscope of cultures, has always been immensely diverse in thought as well as in action. People of different religions reside in India in harmony as also in disharmony. Some are the original inhabitants such as the Hindus; some, who sought refuge such as the Parsis and Jews; others, the foreign rulers such as the Muslims and Christians. Nonetheless, they all continue to thrive together as rightful citizens of India.

In secular India, all citizens are governed by uniform criminal and contractual laws. However, their family laws are different. Each community has its own personal law governing marriage, divorce, adoption, custody, inheritance and more. Which community a person belongs to, is generally decided by his/her birth or conversion. Thus, Hindus are governed by the Hindu Marriage Act, 1955; Hindu Adoption and Maintenance Act, 1956; Hindu Succession Act, 1956. The Parsi community is governed by Parsi Marriage and Divorce Act, 1936. The Muslims follow the uncodified Shariah Law, the Shariah Application Act, 1937, Dissolution of Muslim Marriages Act, 1939, Muslim Women Protection of Rights on Divorce Act, 1986. The Christians are governed by Indian Christian Marriages Act, 1872, Divorce Act, 1869. This multiplicity of laws does to a large extent uphold and honour the fundamental right of citizens to practice and profess their religion but at the same time, it also causes inconvenience and upheaval in the delivery of justice. Thus, we aren’t left with much of a choice. Either we choose our religious preferences or simply follow the egalitarian secular laws on matrimonial issues, namely the Special Marriage Act, 1954.

Not recently, but ever since A44 has been a part of the Constitution of India, deliberations have taken place to decide the possibility of implementing a Uniform Civil Code in India. The current stir relating to the feasibility and applicability of the UCC (as popularly abbreviated) seems unnecessary to me. The need of the hour is to strengthen the currently prevailing laws, to rid the existing laws of the sting of discrimination and not to enforce homogeneity on the heterogenous Indian diaspora.

The prime factors driving this debate are – a secular republic needs a common law for all citizens rather than differentiated rules based on religious practices and gender justice – against discrimination of women. In my opinion, both these factors are flimsy and unconvincing. It is important to highlight the fact that personal laws of all communities in India, not just one, are discriminatory in one way or another. This is due to the inherent structure of patriarchy which exists in our society. In fact, this structure pervades all others and has its clutches shackling Indian society since times immemorial. The power dynamics in this country are so skewed that the enforcement of a uniform civil code will do only little to alleviate the anomaly. The underlying principle should be that constitutional law should supersede religious law in a secular republic. However, many practices governed by religious traditions are at odds with the fundamental rights guaranteed in the Indian Constitution. The remedy to this would be to identify the vitiating factors in each community’s personal laws, amend and align them with the Constitutional principles.

Often, when we talk of archaic personal laws, the first thing that comes to mind is the matter of ‘Triple Talaq’ and the discriminatory Muslim personal laws. Well, there’s much more to it than that. Let us take a holistic look at the personal laws of the religious communities in India and explore areas for improvement,without politicising issues, to bring about a fair and just judicial system for every citizen of India.

To begin with the Christian community in India, which is governed by Indian Christian Marriage Act, 1872 and Divorce Act, 1869. Matters relating to succession are governed by the Indian Succession Act, 1925. The laws for dissolution of marriage under Indian Divorce Act, 1869 severely discriminate against women. S.10 of the Divorce Act, 1869 provides for dissolution by husband on the ground of adultery by wife only. On the other hand, a wife can seek divorce on the grounds of conversion of husband to another religion and marriage with another woman; or incestuous adultery, or bigamy with adultery, or marriage with another woman with adultery, or rape, sodomy or bestiality, or of adultery coupled with desertion, without reasonable excuse, for two years or upwards.

Thus, for a Christian man to seek divorce, one fault ground is enough whereas a Christian woman has to prove multiple fault grounds. This provision forces a Christian woman to live in a marriage which is painful, unhappy, devastated, broken – as has also been laid down in the case of Ammim v. Union of India. In this case, the Kerala High Court said that this provision violates Article 21 and 14 of the Constitution of India. A bigger problem is the tussle between the Roman Catholic Church in India and the Formal Courts, it is to be noted that marriages annulled in the ecclesiastical courts/ churches are not valid in the eyes of law in India. At the same time, a marriage dissolved by a decree of court is not accepted by the Roman Catholic Church. Thus, Christians seeking to dissolve/ annul their marriage must seek a decree of Nullity from the Church as well as the Court of law. The Indian Divorce Act, 1869 states that after a decree of divorce has been provided by the District Court, a special bench of the High Court must confirm the divorce, this provision makes the process of seeking divorce lengthy, tiresome, tedious and increases matters before courts, thus burdening them further. Several efforts have been made by Christian Groups to identify, alter and amend these shortcomings in the law. Their efforts have paid off with the recommendationsof 164^thLaw Commission of India Report in 1998. Thus, came into force, the Indian Divorce (Amendment) Act, 2001, which to a large extent has cured the law of the anomalies. Thus, a conscious effort to create awareness within the religious community, logically persuade everyone to arrive at a consensus and drive a social change is the way to go to strengthen our laws.

Next, we must discuss the restrictive laws of the Parsi community. Neither Parsi Marriage and Divorce Act, 1936 nor the Amendment Act, 1988 provide for adoption of children. The community does not recognise adoption as a means of child bearing. This is a very inequitable practice, both for the parents and the child. Every couple must have the right to bear a child. If biologically this is not possible, the couple must have the option to adopt a child.Further, the Act provides for the establishment of Parsi Matrimonial Courts with an appellate jurisdiction to the High Court. With an already established, secular redressal system in place, the provision for special Parsi Marriage Matrimonial Court, is unnecessary and defeats the purpose of the formal courts of law. Besides these flaws, there are also progressive provisions in the Act such as, on dissolution of marriage, either spouse can claim maintenance from the other, both pendentelite and permanent. The custody of children upon dissolution of marriage can be given to either of the spouses or any 3^rd party keeping in mind the best interest of the child. Either parent can be the guardian of the child without restriction, unlike the practice in Muslim Law. Finally, the event of conversion to another religion by one of the parties to the marriage, does not make the marriage null and void, unlike the practice in Hindu Law.

Speaking of Hindu Law, it is imperative to put the spotlight on the anomalies in the law governing the majority of the population in India. Besides the Hindus, the Sikhs, Jains and Buddhists, all fall within the ambit of this law. To begin with, the practice of marriage which is a sacrament under this law is grounded on the derogatory belief and practice of “Kanyadan”, a bride is considered as the property of her father which is donated to the groom upon marriage. The concept of Restitution of Conjugal Rights as practiced by the colonial powers was first introduced to Indian society by Hindu law and is still a part of it. This practice is considered to be in violation of A21 of the Constitution of India as it forces sexual cohabitation on spouses not desiring to live together. In T. Sareeta v. Venkatasubaiah, this provision was stated as unconstitutional. Such archaic provisions which are still part of our laws must be abrogated. Though the Muslims are accused of being polygamous, it’s not them alone, the practice continues among Hindu men also. Research has it, bigamy is also prevalent among Hindus, perhaps in numbers larger than those of Muslims. A Hindu woman who seeks divorce or demands maintenance on grounds that her husband has contracted a bigamous marriage must prove that he has married again. To add to the torment, marriages under the Hindu Marriage Act are not automatically registered hence it is hard to prove the existence of the marriage. The Hindu Succession Act, 1956 makes provision for a Hindu Undivided Family to deliberately ensure that property remains with the male line of descent. A son gets a share equal to that of his father whereas, a daughter only gets a share in her father’s share. Worst still, she cannot reside in the family home unless she is single or divorced, and cannot claim her share of property as long as the men of the family continue to live in it. Also, a Hindu woman has no right to her matrimonial home, unless she can prove that it was purchased with her earnings. Thus, whether in their natal home or in their matrimonial home, Hindu women can never find comfort or security. Every day is a struggle and the laws provide little or no help what so ever. We must understand that women are equal partners in the marriage, and their contribution has to be recognised with an equal division of matrimonial property. Maintenance is the right of every woman and must not be mistaken for compensation.The Hindu Matrimonial law enumerates an extremely long drawn procedure for dissolution of marriage which does not relieve the spouse from the marriage but creates further adversity. Such hardship desists many, especially women from filing for divorce, despite facing violence and abuse.

For reasons unknown, adoption laws in all religious communities are either absent or discriminatory. Hindu, the only community to recognise adoption, also discriminates as to who can adopt. While any major, Hindu male of a sound mind may adopt a child (boy/girl), a Hindu woman has more prerequisites to fulfil. Along with being a major, Hindu female, of sound mind, she must also be unmarried or if married, whose marriage has been dissolved or whose husband is dead or has completely and finally renounced the world or has ceased to be a Hindu or has been declared by a court of competent jurisdiction to be of unsound mind. To put it in simple words, a Hindu woman can adopt a child only if her husband ceases to exist in the eyes of law. What is this, if not discrimination against the one who is to nurture and protect the child?

Having known the harsh realities about each of the religious community’s laws, we certainly can deduce that Muslim personal law is not the only demon we need to deal with.Yes, the Muslim personal law does also have unconstitutional elements which need to be repealed and major efforts have already ensued in that direction. To name the obvious, practices of Triple Talaq, Nikah Halala, Polygamy need to be banned. This is primarily because these practices are extra judicial, ultra vires to the law and against the basic principles of our Constitution. The Five Judge Constitutional Bench has recently heard several cases in this regard and the nation keenly awaits its verdict. Some of the less criticised yet alarming issues are of Muta Marriage or temporary marriage, no maintenance, guardianship. Muslim uncodified law gives a Muslim man the option to marry as many times as he wants, to women belonging to a Qitabi religion for as long as he wants. The only prerequisite is that the duration of the marriage must be predetermined. Laws for maintenance of a Muslim woman are quite skewed. The latest judgement in this regard is Danial Latifi&Anr vs Union Of India on 28 September, 2001. However, the provision of reasonable amount of maintenance to be provided to a divorced Muslim woman beyond the period of Idda is neither accepted in theory nor in practice. Worst still, the position of a woman in Muslim law is so poor that the father is recognized as sole guardian of the child’s person and property and after him his relatives. Mother is not recognized as a guardian, natural or otherwise even after the death of the father. Efforts must be made to straighten out these irregularities as well.

To conclude, establishing a common code for all citizens rather than rules based on religious practices, may pose a problem for the Indian democracy. The Uniform Civil Code may itself be ‘unconstitutional’ by restricting religious freedom. Yet, the cornerstone should be that every citizen of India is protected by the constitutional laws and none is denied justice.The need of the hour is to amend and update existing personal laws to ensure equality and gender justice especially in aspects such as marriage, dissolution, adoption, succession and maintenance. To quote B. R. Ambedkar “I like the religion that teaches liberty, equality and fraternity”. Taking from this, let the supreme religion guiding our thoughts, actions and laws be that of humanity.Let us try to align the personal laws in a manner in which they fall within and in line with the Constitutional law, in the true spirit of India being a secular republic.

Disclaimer: The views expressed here are the author’s personal views, and do not necessarily represent the views of Sabrangindia.

Dignify our Work, Recognise us as Workers: ASHA workers tell Govt

August 23, 2017

Several thousand rural health workers–known as ASHA (Accredited Social Health Activist) workers from 11 states of the country registered their strong protest at abysmal working conditions and marched in Delhi on August 21 demanding that the government accept their longstanding demands. This is a long standing basic, human rights and fundamental issue as ASHA workers are not recognised by the government as workers. Only considered “volunteers”, they are paid piece-rate incentives, far below the minimum wage. ASHA workers have been demanding for many years that they be recognised as workers. The protest in Delhi was led by All India Coordination Committee of Asha Workers (CITU). Over the past months other left affiliated unions have also been agitating, specifically with the AAP Delhi government to press for their demands.

On Monday, 21 August 2017, more than 6000 ASHA workers marched from Ram Lila Maidan in Delhi and gathered at Jantar Mantar to submit a memorandum with 50 lakh signatures to the central government. The signatures were those of ASHA workers themselves, facilitators (who are part of the “support mechanism for ASHA”), beneficiaries of the work done by ASHA workers, and the general public. Under the NHM (National Health Mission) India has 9,00,000 registered ASHA workers.

The NHM came into being as the National Rural Health Mission (NRHM), started in 2005 for a period of seven years, was extended for another five years and expanded to cover urban areas as well. Currently there being no clarity regarding the future of the Mission, making NHM a permanent programme of the government is one of the main demands of the protesting ASHA workers. The objective of the NHM has been to improve the delivery of basic health services in the country. The ASHA workers act as the link between the rural population and the public health system.

According to the Mission, ASHA workers are the “first port of call for any health related demands of deprived sections of the population, especially women and children, who find it difficult to access health services”.

Today, it is these ASHA workers form the mainstay of the rural health system in many parts of India, by imparting basic health education and services to the poor as well as by helping them to access public health facilities. While the ASHA workers have played an important role in improving the health services in India, their pay and service conditions are woefully inadequate. They are paid meagre amounts as incentive for each task they perform, and they work in the most difficult conditions. According to activists, the monthly income earned by an ASHA worker in most parts of India ranges between Rs. 1000 to Rs. 4000 per month.

The 45th Indian Labour Conference (ILC) held in May 2013 had recommended that scheme workers such as ASHAs should be recognised as workers, that they be paid minimum wages and that social security benefits should be ensured to them. The ILC is the “apex level tripartite consultative committee in the Ministry of Labour & Employment to advise the Government on the issues concerning working class of the country”. It comprises central trade unions, central organisations of employers and central and state governments.

The recommendation of the 45th ILC regarding scheme workers was reiterated by the 46th ILC as well. The ASHA workers have organised a number of mass protest programmes and conventions in different parts of India over the past few years.

Workers at last Monday’s protest demanded that the ILC recommendations regarding scheme workers be implemented. They demanded that the ASHA workers be regularised as ‘Health Workers’, that they be paid minimum wages of Rs. 18,000 per month with variable Dearness Allowance (DA), and that they be provided social security benefits such as pension, gratuity and maternity benefits.

The protesters criticised the moves to privatise the public health system, and demanded that the budget allocation for health be raised to at least 6% of the GDP. Infrastructure in all public health facilities must be improved, they said. Activists who spoke at the rally demanded that ASHA workers be paid a fixed monthly remuneration equivalent to the statutory minimum wage for skilled workers in the respective states, pending regularisation. The public meeting at Jantar Mantar was inaugurated by Tapan Sen, General Secretary of the Centre of Indian Trade Unions (CITU), and addressed by Ranjana Nirula, Convenor of the All India Coordination Committee of Asha Workers (AICCAW).

Asha Sharma of the All India Democratic Women’s Association (AIDWA), Suneet Chopra of the All India Agricultural Workers Union (AIAWU), Vijoo Krishnan of the All India KisanSabha (AIKS), VP Sanu of the Students Federation of India (SFI), Jai Bhagwan of the Midday Meal Workers Federation of India and AR Sindhu of the All India Federation of Anganwadi Workers and Helpers spoke at the meeting in solidarity with the ASHA workers. A delegation led by TapanSen and RanjanaNirula met the Union Health Secretary and submitted the ASHA workers’ memorandum with 50 lakh signatures. The AICCAW has announced that ASHA workers would participate in large numbers in the three-day dharna by workers at the Parliament Street from 9 to 11 November 2017.

Karnataka’s Opposition to Right-Wing Hindu Fundamentalism

August 23, 2017

Report from the Dakshinayan meeting in Karnataka

The urban middle-class, along with those in political and economic power, has been claiming that there is an absence of caste-based discrimination not only today, but since time immemorial. This argument is an attempt to sweep the present-day atrocities, and a violent history of the caste system under the carpet. Such arguments firstly state, that there is no such thing as caste discrimination, and that it is manufactured by the political parties representing certain castes; secondly, the caste system is being justified by them as a system of “division of labor”.

With a rapid increase in the cases of atrocities committed against dalits in our times, and the dalit movement simultaneously gaining a greater momentum in the country, such arguments prove to be baseless and ill-founded. Kiran Gajanur, an activist of Dakshinayan, Karnataka, and a post-doctoral fellow at the Department of Political Science, Kuvempu University, shares two incidents that the state of Karnataka has witnessed in recent times, and reflects upon the dalit uprising that the state is witnessing.

Stories of a Dalit Cook and a Panchayat Member

Image courtesy:The Indian Express

Parvatamma,¹ a Dalit woman belonging to Madiga community, was appointed as a cook in the mid-day meal scheme at the Government Higher Primary school in Kagganahalli, in Mulabagal taluk of Kolar district. The members of other communities in the village protested this appointment. The district administrators visited the school and the villagers to discuss the matter. As a result of it, the total strength of the school came down to 48 from 148 – hundred students dropped out of the school and joined another school. Parvatamma continued to work in the school, and the remaining 48 students also protested by not eating the food cooked by her. Parvatamma wrote, “no one ate the food today” every day in a dairy.

Image courtesy: Dalit Camera

Shakunthala is a woman from the Koraga community, and a member of the gram panchayat of a village in Karavali region of Mangalore. She hosted her brother’s engagement dinner at her house in the village. The non-vegetarian feast prepared for the occasion became a reason for a brutal attack on Shakuntala’s family. The Bajarang Dal activists attacked the family claiming that they had cooked beef for the occasion. Udaya vani, a regional news paper noted that, three young men were physically assaulted, and Shakuntala was verbally abused by the men who kept referring to her caste.

Mr. Gajanur shares these two events in recent times in Karnataka to talk about the presence of caste-based discrimination in the state. He calls these two events a consequence of the dominance of “religious culturality” (Brahmanical upper caste hegemony) over the lower strata of the society (lower castes).

Responsibility of Scholars’ and Literary Community
Mr. Gajanur is optimistic about changes in the system. The literary history of Karnataka, as he states, was and is multi-religious and multi-cultural as it gave a platform to members from diverse backgrounds. As early as 11th century, the Basava movement through its Vachana sahitya was determined to protest every form of discrimination. Mr. Gajanur, anyhow, observes a wide gap between the intellectual community and the common people in the state of Karnataka today. This gap has proven itself to be a lacuna in the progressive resistance, as there seems to be no connection between the path of tolerance that the literary history of Karnataka had laid out and what is happening in present-day Karnataka. It is the responsibility of the intellectual community to speak to every person, communicating the progressive ideas and tolerance that Karnataka once stood for.

This is one of the ways in which the fascist forces in operation in the country today can be fought. Dakshinayan, a platform for progressive writers and thinkers, has created a space that is trying to connect progressive writers and thinkers to common people. Dakshinayan’s agenda is to unite all the anti-fascist and pro-democratic groups to fight religious, fundamental and capitalist forces.

Dakshinayan in Karnataka
The recent Dakshinayan gathering that was organised in Shimogga, comprised both young and leading writers of Karnataka, who are working in many ways to counter the fascist forces in the country. The gathering aimed at discussing contemporary issues in the state. It was a great success – with 600 members attending. Mr. Gajanur notes that this number is an indication of the unrest among individuals who want to fight the fascist groups. May festival, a literature festival in Dharwad, Jana Nudi organised by K.P. Suresh, the Chalos uniting all the anti-fascist forces, and pro-democracy individuals show that there are voices of resistance.

Dakshinayan is a platform for the coming together of various progressive movements, functioning within the frameworks of their respective ideologies. Leftist groups, women’s movements, peasant movements are brought together. Through the creation of platforms like Dakshinayan, Mr. Gajanur states that it is possible to fight the rapidly growing fascism in the country; and also strive for a just society that the Basava Movement and Vachana Sahitya worked for in the 11th century in Karnataka.

1. Parvatamma is the name that Mr. Kiran Gajanan uses. The other sources carrying the news say Radhamma.

Courtesy: Indian Cultural Forum

Supreme Court Rules Triple Talaq Unconstitutional; About 80% Of Divorced Indian Muslims Are Women

August 23, 2017

The Supreme Court, in a landmark verdict on August 22, 2017, struck down the practice of triple talaq. A constitutional bench of five judges, belonging to different faiths — Hinduism, Christianity, Islam, Sikhism and Zoroastrianism — ruled by a 3:2 majority that there was no constitutional protection for triple talaq.

The bench heard seven petitions filed by Muslim women challenging the 1,400-year-old practice, including by one who was divorced on WhatsApp. In India, for every divorced Muslim man, there are four divorced Muslim women, IndiaSpend reported on October 15, 2016, analysing Census 2011 data.

Arguing that Triple Talaq is discriminatory and arbitrary, Justices Rohinton Fali Nariman and U U Lalit struck down the practice in their judgement which went on to form the majority verdict.

“Triple Talaq, is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void,” the two judges ruled.

Article 13 (1) mandates that all laws in the country existing prior to the Constitution that came into effect in 1950, found to be inconsistent with the fundamental rights prescribed therein, are to be treated as void.

Heading the SC bench, chief justice JS Khehar and Justice Abdul Nazeer differed from Justices Nariman and Lalit, on the grounds that the court cannot interfere in matters of personal laws which are a fundamental right as per the constitution.

Writing the minority judgement, CJI Khehar directed the government “to consider appropriate legislation” for triple talaq. “We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ or the ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States,” CJI Khehar wrote.

Justice Kurian Joseph, supporting Justices Nariman and Lalit, said he found it “extremely difficult to agree” with CJI Khehar. In his judgement, which delivered the deciding majority, Justice Joseph endorsed and reiterated the SC judgement of 2002 for a criminal appeal case (Shamim Ara vs. State of Uttar Pradesh) wherein the apex court had previously already invalidated a divorce by triple talaq.

We storified a thread of tweets put out on August 22, 2017, to give you an insight on triple talaq and divorce statistics among religions in India.

Here are some reactions to the Supreme Court ruling on triple talaq:

(Saldanha is an assistant editor and Mallapur an analyst with IndiaSpend.)

Courtesy: India Spend

Academic Community stands firmly with JNUSU President; 100+ academicians, activists, writers issue statement of solidarity

August 23, 2017

We, the undersigned, are deeply shocked by the shameful attempts by JNU Administration to crush dissent in the University through imposition of arbitrary fines on student activists, denial of registration to students engaged in protests against the administration, including the elected President of the Students’ Union, Mohit Pandey. We stand in solidarity with the JNUSU President who has decided not to pay the arbitrarily imposed fine of 20,000. Many more Students’ Representatives and activists of JNU campus are facing 5-6 inquiries and false FIRs for raising students’ issues.

Mohit K pandey
Image: Indian Express

It is also shocking that a duly elected representatives of the students is being fined such massive amounts for merely raising students’ issues. Several other students have paid the fines, in order to be allowed to register, being forced to succumb under the threat of having their registration held up. Several students with pending inquires are not getting their degree- mark sheets and unable to continue their studies further. This amounts to imposition of a tax/fee on dissent, thereby creating a chilling effect on freedom of expression in the University. This is unacceptable in a University where knowledge creation is contingent upon freedom of ideas.

We call upon the JNU administration to display maturity and stop penalising alternative viewpoints. The current fine of Rs. 20,000 that the JNUSU President is being asked to pay for restoration of his studentship pertains to an instance of anti-administration protests led by the students’ union against the complicity of the JNU Administration in the disappearance of an M.Sc. Biotechnology student named Najeeb Ahmed following a mob assault on him by members of a students’ group affiliated to the ruling party – who were indicted for the assault by a report of the Proctor’s Office, but shielded by the higher ups in the administration, leading the then Proctor to resign from office.

So, the students guilty of leading the lynch mob against Najeeb Ahmed were given no punishment at all, whereas students protesting against his disappearance – who were demanding that the JNU Administration should file a police complaint in the matter – were fined Rs. 20,000 each! Ever since the JNU VC has been appointed by the present government, students not belonging to the ruling party student group have been systematically targeted and penalised for speaking out. There is no record of similar fines upon right-wing groups which routinely engage in vandalism on campus. This clearly amounts to blatant viewpoint discrimination and also serves as a green signal to lynch mobs on campus.

The JNU Administration is using an archaic statute in the book to ban protests at the Administration Block. However, JNU has always had a healthy culture of dissent and protest. Protests against the administration have always been held outside the administration block itself. That the protests disturb the working of the administration is the most dubious pretext for crushing dissent, as there have been historic student movements on JNU campus which have only made the University stronger, its academic traditions more robust and its intellectual environment more egalitarian.

We, therefore, demand that

1) the JNU administration must end its petty tactics of penalising dissent;

2) JNUSU President, Mohit Pandey, must be allowed to register for the next academic semester, unconditionally;

3) all fines against students being imposed for the mere act of protest must be revoked unconditionally;

4) JNU Administration must stop trying to deprive students of the right to protest at the Administration Block, and engage, instead in dialogue with the elected students’ body without bias against the ideology held by the student union representatives;

5) JNU Administration must punish the students who assaulted Najeeb Ahmed, resulting in his disappearance.

Sd/-

Prof. Anand Teltumbde, Senior Professor, Goa Institute of Management

Prof. Anil Sadgopal, Former Dean, Faculty of Education, University of Delhi; Member, Presidium, All India Forum for Right to Education

Dr. Rohan D’Souza, Associate Professor, Kyoto University, Japan

Prof. Chaman Lal, Retired Professor, JNU; Former President, JNUTA

Prof. Nivedita Menon, Professor, Centre for Comparative Politics and Political Theory, School of International Studies, JNU, New Delhi

Jairus Banaji, Research Professor, SOAS, University of London

Prof. Laxman Gaddam, Professor of Commerce, Osmania University

Anwesha Sengupta, Assistant Professor, Institute of Development Studies, Kolkata

Arvind, Professor, IISER Mohali

Rana Partap Behal, Associate Professor (Retd.), Deshbandhu College, University of Delhi. Association of Indian Labour Historians.

Madhu Kushwaha, Professor, BHU

Brinda Bose, Associate Professor, JNU

Debaditya Bhattacharya, Assistant Professor, Nivedita College, University of Calcutta

Dr. Rohini Hensman, Writer and Independent Scholar

Anand Mathew, Director, Prerana Kala Manch, Varanasi

Mary E John, Researcher, Centre for Women’s Development Studies

Padma Velaskar, Professor (Retd.), Tata Institute of Social Sciences

Ravi Kumar, Associate Professor, South Asian University

Ritajyoti Bandyopadhyay, Assistant Professor, IISER Mohali

R. Nandakumar, Art Historian, IGNCA

Madhu Prasad, Associate Professor (Retd.), Zakir Hussain College, DU

K. Laxminarayana, Professor, Hyderabad Central University

Jean Chapman, Adjunct Professor, Concordia University, Montreal, Quebec, Canada

T K Arun, Editor, Opinion, The Economic Times

John Cherian, Journalist, Frontline

Teesta Setalvad, Journalist, Activist, Educationist; Citizens for Peace and Justice; Sabrang India

Ravindra Tomar, Senior Researcher, Parliament of Australia

Manorama Sharma, Retired Professor, NEHU

Dr. Sushmita Sengupta, Associate Professor, NEHU

Prof. K. Chakradhar Rao, Member, Presidium, All India Forum for Right To Education

Perumal Vijayan, Research Associate, University of Saskatchew

Sangeeta Chatterji, Doctoral Candidate, Rutgers, The State University of New Jersey

Mohd Mushtaq, Assistant Professor, Govt. Degree College, Baramulla, J&K

Hiren Gohain, Retired University Teacher

Nandini Rao, Social Activist, JNU Alumnus

Devyani Borkataki, Activist, Northeast Network

Kiran Shaheen, Director, Media Action Group

Wilfred Dcosta, Convenor, Indian Social Action Forum (INSAF)

Firoz Ahmed, Teacher, Lok Shikshak Manch

Manoj Chahal, Research Scholar, University of Delhi

Manuj Mukherjee, Ph.D. Scholar, Indian Institute of Science

Sanjay Palshikar, Professor, University of Hyderabad

Dr Navneet Sharma, Assistant Professor, Central University of Himachal Pradesh

Bhangya Bhukya, Associate Professor, University of Hyderabad

Abani K Bhuyan, Professor, University of Hyderabad; President of the University of Hyderabad Teachers’ Association

Dr. G. Vijay, Assistant Professor, University of Hyderabad

Sohail Hashmi, Freelance Writer, Filmmaker, JNU Alumnus

Nikhil Kumar, Policy Analyst

Roger Alexander, Independent Journalist, Pink City Press Club

Saeed Haider, Associate Editor, Saudi Gazette

Rajesh, Activist, Lok Shikshak Manch

N.D. Jayaprakash, JNU Alumnus

Anjal Lele, Travel Consultant; former JNU Student

Dr. Vikas Bajpai, Assistant Professor, Centre for Social Medicine and Community Health, Jawaharlal Nehru University

Indira C, Public Health Researcher; Consultant

Rashmi Kumari, Ph. D., Jawaharlal Nehru Univerity

Dr. C. Sadasiva, Associate Professor, Deptt. of Botany, Dyal Singh College, University of Delhi

Sajid, National Vice-President, Campus Front of India; Ph.D. Scholar, JNU

Shehla Rashid Shora, Research Scholar, JNU

Mohit P Gandhi, Ph.D. Scholar, CSMCH, JNU

Vasanthi Gupta, Academician; JNU Alumnus

Apurba K. Baruah, Retired Professor, North Eastern Hill University, Shillong

K. Laxminarayana, Professor, University of Hyderabad

Dayaram Yadav, Former General Secretary

Dr. M. Gangadhar, Chief Editor, Adhyapaka Jwala; Democratic Teachers’ Federation, Telangana

Avinash Chandra Jha, former Associate Professor; former JNU student

Mohan Rao, Professor, JNU

Shashwati Goswami, Research Scholar, CSMCH, JNU

Joby Joseph, Associate Professor, University of Hyderabad

Sumegha, student, JNU

Caroline C. Netto, Ph.D. Scholar, JNU

Ramesh Patnaik, Former General Secretary, JNUSU

Sri Raghunath Joshi, Professor (Retd.)

Thokchom Surjit Singh, Social Activist; All India forum for Right to Education

Ratan Kumar, Ph.D. Scholar, Centre for Historical Studies, JNU

Susmit Isfaq, Student, NLU Assam; Students’ Federation of India

Roobala, Ressearch Scholar, Indian Institute of Science

Himangshu Baruah, student

D N Reddy, Professor of Economics (Retd.), University of Hyderabad

Akshay Pathak, General Secretary, AIRSO

K Venugopal, Chief Editor, Upadhyaya Dharshini

B Sudha, Retird Teacher, TPTF

M. Raghushankerreddy, State President, Democratic Teachers’ Federation; All India Forum for Right to Education

Aviroop Sengupta, Ph.D. Scholar, Centre for Historical Studies, JNU

M. Balakumar, Headmaster; DTF

Arunank, State General Secretary, Democratic Students’ Union, Telangana

V. Raji Reddy, HM, Democratic Teachers’ Federation

Manjari Gupta, Post Doctoral Fellow, HRI

M. Somaiah, Teacher; State Vice-President, DTF

Vijay Kumar, Central Committee Member, CPI(ML) Red Star

Somasekharasarma, Retd. English Lecturer; AIFRTE

Kalyani Menon Sen, JNU Alumnus, (1977 batch)

T. Sobha Rani, Associate Professor, University of Hyderabad

Shephali Frost, Writer, Poet, Musician

Srinivas Reddy A., Teacher, Democratic Teachers’ Federation

Bittu Karthik, Associate Professor, Ashoka University

Shuddhabrata Sengupta, Artist / Writer, Raqs Media Collective, Delhi

Madhu, State Secretary, Democratic Teachers’ Federation

Suraj Beri, Doctoral Candidate, Centre for the Study of Social Systems, JNU

Vijay Shankwe Choudhary, Producer/Director Films and Television, former JNU Student (1972-81 batch)

Shilpa Shital, Research Scholar, IIT Delhi

Partho Sarothi Ray, Assistant Professor, IISER Kolkata

Nupur, Research Scholar, JNU

Susie Tharu, Retired Professor, EFLU

Sarwat Ali, Associate Professor, IASE (Jamia Millia Islamia)

Dyuti, Researcher and Activist

P. S. Mukherjee, Founder Member, Friends of Latin America-India

D. M. Diwakar, Professor, A N Sinha Institute of Social Sciences, Patna, Bihar

Muzaffar Ahmad Dar, Research Scholar, Centre for Historical Studies, JNU

Aishik Gupta, Activist

Aijaz Ahmed, Lecturer, Shinas College of Technology, Ministry of Manpower, Oman

Vandana Mahajan, Independent Development Practitioner, Feminist Movement for Equality, Justice and Non-discrimination

Afzal Hussain, Masters Student, CAAS, JNU

Masood Ahmed Azhar, Research Scholar, JNU; NSUI

Harshad Tayade, Engineering Student, Pune University

Shivam, Student, University of Hyderabad

Dharti Putra, Student, BIT Sindri, Dhanbad, Jharkhand

Courtesy: Kafila.online

SC declares instant triple talaq “unconstitutional”: A great day for gender justice

August 22, 2017

From Shahbano to Shayara Bano, it’s a great leap forward for Muslim women in India

Photo credit: Indian Express

“It is not for a court to determine whether religious practices were prudent or progressive or regressive”
– Justices JH Khehar and S Abdul Nazeer

“What is bad in theology is also bad in law”
– Justice Joseph Kurian

“Triple talaq is manifestly arbitrary and therefore violative of the fundamental right contained under Article 14”
– Justices Rohinton Fali Nariman and Uday Umesh Lalit

By a majority decision of 3:2, a constitutional bench of the Supreme Court today declared the practice of instant triple talaq among Muslims as “manifestly arbitrary”, “void”, “bad in law” and “unconstitutional”.

Justices JH Khehar (chief justice) and S Abdul Nazeer held that the practice of triple talaq (talaq-e-biddat) enjoyed the status of a fundamental right as it came under protection of Article 25 of the Indian Constitution (Right to Freedom of Religion).

Justice Kurian Joseph set aside the practice on the ground that it was against the teachings of the Quran.

Justices RF Nariman and UU Lalit held that it violated Articles 14 (Right to Equality) of the Constitution.

Urging Parliament to enact a law to deal with the issue, Justice Khehar barred Muslim men from pronouncing instant triple talaq for next six months within which time he implored the political parties to shed their difference and bring in a new law. He added that once the legislation process is initiated, the bar on instant triple talaq will continue till the enactment, failing which the injunction will cease to be operative.

The major political parties have welcomed the verdict saying it will empower Muslim women.

“Judgment of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment,” Prime Minister Narendra Modi tweeted.

Here, in summary, are the justices in their own words, culled out of the 395 page judgment:

Justices JH Khehar and S Abdul Nazeer

“It is not for a court to determine whether religious practices were prudent or progressive or regressive”.

“Despite the decision of the Ahmed Rashid Case on the subject of talaq-e-biddat [triple talaq] by the Privy Council, the issue needs a fresh examination, in view of the subsequent developments in the matter…

“All the parties were unanimous that despite the fact of talaq-e-biddat being considered sinful, it was accepted among Sunni Muslims belonging to the Hanafi school, as valid in law, and has been in practice among them…

“It would not be appropriate for this court to record a finding whether the practice of talaq-e-biddat is, or is not, affirmed by ‘Hadiths’, in view of the enormous contradictions in the ‘hadiths’ relied upon by the rival parties…

“Talaq-e-biddat is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is part of their faith, having been followed for more than 1400 years, and as such has to be accepted as being constituent of part of their ‘personal law’…

“The contention of the petitioners, that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be ‘personal law’, and got transformed into ‘statutory law’ cannot be accepted and is accordingly rejected…

“Talaq-e-biddat does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to state actions alone…

“The practice of talaq-e-biddat being a constituent of ‘personal law’ has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice, therefore, cannot be set aside, on the ground of being violative of the concept of constitutional morality, through judicial intervention…

“Reforms in ‘personal law’ in India, with reference to socially unacceptable practices in different religions have come about only by way of legislative intervention. Such legislative intervention is permissible under Articles 25(2) and 44 read with Entry 5 of the Concurrent list, contained in the Seventh Schedule of the Constitution. The said procedure alone needs to be followed with reference to the practice of talaq-e-biddat, if the same is to be set aside…

“International conventions and declarations are of no avail in the present controversy, because the practice of talaq-e-biddat is part of ‘personal law’ and has the protection of Article 25 of the Constitution…

“It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not how another would like it to be (including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional courts to protect ‘personal laws’ and not to find fault therewith…

“The judiciary must therefore always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem…

“We understand that it is not appropriate to tender advice to the legislature to enact law on an issue. However, the position as it presents in this case seems to be a little different… The stance adopted by the Union of India supports the petitioners; cause. Unfortunately, the Union seeks at our hands what truly falls on its own…

“We would therefore implore the legislature to bestow thoughtful consideration to this issue of paramount importance. We would also beseech political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation…

“Till such time as the matter is considered, we are satisfied in injuncting Muslims husbands from pronouncing talaq-e-biddat… The instant injunction in the first instance will be operative for a period of six months and a positive decision emerges towards redefining talq-e-biddat as one or alternatively if it is decided that the practice of ‘talaaq-e-biddat’ be done away altogether, the injunction will continue, till legislation is finally enacted. Failing which the injunction will cease to operate.

Justice Joseph Kurian:
“What is bad in theology is also bad in law”

“What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Therefore the simple question that needs to be answered in this case is whether triple talaq has any legal sanctity…

“This court in Shamim Ara v. State of UP and Another has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, it terms of Article 141, Shamim Ara is the law that is applicable in India…

“[Quranic verses on divorce are] instructive verses and do not require any interpretation. They are clear and unambiguous as far as talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt at reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently it violates Shariat…

“The above view has been endorsed by various High Courts, finally culminating in Shamim Ara by this court which has since been taken as the law for banning triple talaq… It has to be particular noted that [the] conclusion by the bench in Shamim Ara is made after ‘respectful agreement’ with Jiauddin Ahmed (Guwahati High Court] that ‘talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be affected’…

“Shamim Ara has since been understood by various high courts across the country as the law deprecating triple talaq as it is opposed to the tenents of the Holy Quran. Consequently, triple talaq lacks the approval of Shariat…

“Therefore, I find it extremely difficult to agree with the learned chief justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law….

“[T]his court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is said to be bad in the Holy Quran cannot be good in the Shariat, and in that sense, what is bad in theology is also bad in law…”

Justices Rohinton Fali Nariman and Uday Umesh Lalit:

“Triple talaq is manifestly arbitrary and therefore violative of the fundamental right contained under Article 14 of the Constitution”

“Triple talaq alone is the subject matter of challenge – other forms of talaq are not. The neat question that arises before this court is, therefore, whether the 1937 Act [Muslim Personal Law (Shariat) Application Act, 1937) can be said to recognize and enforce the rule of law to be followed by the courts in India and if not whether Narasu Appa (Supra) which states that personal laws are outside Article 13(1) of the Constitution is correct in law…

“Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out…
“[T]he 1937 Act is a pre-constitutional legislative measure which would fall directly within article 13(1) of the Constitution of India…

“[A]ll forms of talaq recognized and enforced by Muslim personal law in India are recognized and enforced by the 1937 Act. This would necessarily include triple talaq when it comes to the Muslim personal law applicable to Sunnis in India. Therefore it is extremely difficult to accept the position of the All India Muslim Personal Law Board [to the contrary]…

“As such we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency…

“It has been agued somewhat faintly that triple talaq would be an essential part of the Islamic faith and would, therefore, be protected by Article 25 of the Constitution of India….

“[I]t is clear that triple talaq is only a form of talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it…

“According to Javed (supra), therefore, this would not form part of any essential religious practice. Applying the test stated in Acharya Jagdishwarananda (supra) it is equally clear that the fundamental nature of Islamic religion, as seen through and Indian Sunni Muslim’s eyes, will not change without this practice…

“We have already seen that though permissible in Hanafi jurisprudence, yet, that very jurisprudence castigates triple talaq as sinful. It is clear, therefore, that triple talaq forms no part of Article 25(1)…

“And this brings us to the question as to when petitions have been filed under Article 32 of the Constitution of India, is it permissible for us to state that we will not decide an alleged breach of fundamental right, but will send it back to the legislature to remedy such a wrong…

“It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act in so far as it seeks to enforce triple talaq as a rule of law in the courts in India…

“It is clear that this form of [triple] talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution…

“In our opinion, therefore, the 1937 Act in so far as it seeks to recognize and enforce triple talaq is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces triple talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being arbitrary, we do not find the need to go into the ground of discrimination in these cases…”

Read the full judgement.

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Confusion Worse Confounded: Good That Instant Triple Talaq Struck Down, but Supreme Court Could Have Simply Reiterated Its Own Sensible Ruling In Shamim Ara Case

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Leveraging Our Laws: A Comparative Account and Conscious Effort to Strengthen Various Personal Laws in India

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SC declares instant triple talaq “unconstitutional”: A great day for gender justice

Justices JH Khehar and S Abdul Nazeer

Justice Joseph Kurian:
“What is bad in theology is also bad in law”

Justices Rohinton Fali Nariman and Uday Umesh Lalit:

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First Published on: June 12, 2017Leveraging Our Laws: A Comparative Account and Conscious Effort to Strengthen Various Personal Laws in India

Report from the Dakshinayan meeting in Karnataka

Justices JH Khehar and S Abdul Nazeer

Justice Joseph Kurian: “What is bad in theology is also bad in law”

Justices Rohinton Fali Nariman and Uday Umesh Lalit:

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First Published on: June 12, 2017
Leveraging Our Laws: A Comparative Account and Conscious Effort to Strengthen Various Personal Laws in India

Justice Joseph Kurian:
“What is bad in theology is also bad in law”