Image: Mumbai Mirror

Five lakh Muslim women are expected to converge at Azad Maidan today, to oppose the Muslim Women (Protection of Rights on Marriage) Bill. The Bill, which makes instant triple talaq a non-bailable, cognisable offence, attracting a punishment of three years’ jail, has been passed by the Lok Sabha, but awaits Rajya Sabha assent.

However, these women have been told that the Bill criminalises talaq per se. Speaking at an 800-strong meeting of women at Oshiwara, Dr Asma Zehra, head of the women’s wing of the All India Muslim Personal Law Board, made this statement without specifying that the Bill applies only to instant triple talaq. The same wrong claim was repeated by another speaker at a Madanpura rally.  

The women have also been told that the Bill is the “first step’’ towards the BJP’s dream of a Uniform Civil Code. Once that was enacted, said Board member Monisa Bushra Abidi, Muslims would no longer be allowed to conduct nikaahs in masjids, and might even have to go through Hindu rituals such as saat phere.

Attending the rally was akin to waging “jehad’’ against the `kaafir’s attempts to destroy their religion, the women were told. They were exhorted to follow the examples of the Prophet’s daughter  Fatima and the first female martyr Sumayya.

Describing the atrocities on Muslim women during the Gujarat 2002 violence, speakers pointed out that the perpetrators of those atrocities were now showing concern for Muslim women’s rights. “Gender justice, women’s and child rights – we don’t need any of these,’’ said Dr Zehra. “We have the Shariat.’’

Few in the audience knew anything about the Board or the Bill.  A handful said the rally was aimed at opposing interference in their religion and their Shariat. Triple talaq was not allowed in Islam, they emphasized. But when told that the Bill too does not allow it, they faltered and directed this reporter to the organisers.

Today’s rally is being seen as the “grand finale’’ to the series of women’s rallies organised by the Board across the country, in a bid to show that the triple talaq Bill is being opposed not only by men, whose rights it curtails, but by women too, whom it is supposed to benefit. The who’s who of Mumbai’s Muslims gathered at Islam Gymkhana on Tuesday to work out the logistics of the rally. Among those present at the meet called by Congress MLA Yusuf Abrahani, were Dr Zahir Kazi, president, Anjuman I Islam group of educational institutions, ex-Congress minister Arif Naseem Khan, AIMIM MLA Waris Pathan, and Farid Shaikh of the Mumbai Aman Committee. Shakir Patni, Mumbai AIMIM president, announced a personal donation of Rs five lakh. The all-male gathering announced that schools and masjids would be used to mobilize women.

Similarly, male activists such as Arif Ghori of Lokanchi Shakti and Zubair Azmi, who runs the Bhendi Bazar festival, helped organize meetings of women across the city, making sure only women addressed them. Barring a few, the speakers were wives of activists. Dr Asma Zehra from Hyderabad, and Sumaiyya Nomani, daughter of Board spokesman Maulana Sajjad Nomani, were the star speakers.  

Said Zubair Azmi, “This rally will be historic. I’ve seen meetings of Muslims stretching from Madanpura to Azad Maidan on two occasions, but those were all men.’’

The women were told that this was their chance to create history. “The beef ban ruined so many homes; so did TADA earlier. But did your husbands tell you to leave your home and protest?’’ asked activist Gazala Azad. Speakers emphasized that “Islam doesn’t like women to come out of their homes. But this time, you have to take to the streets, because Islam itself and the Sharia are in danger. If Mumbai’s women oppose this Bill, the government will have to listen. The country’s eyes are on you; if you shirk your responsibility, you will be a sinner in the eyes of Allah.’’

The Oshiwara meet ended with women sobbing as a long dua (by a man) bemoaned the fact that women’s tears had dried up and their hearts had hardened like those of men.   

By the end of these preparatory meetings, the women were raring to go. Clear instructions were given: “Your menfolk will guide you to buses which will leave from  the nearest masjid. Though exams are on, leave children at home. Let the men look after them. Carry water and Electral, but no plastic bags. Do not litter. Show the world that Muslims can be disciplined.  Above all, wear your burqa. There will be no slogans because Islam does not like women’s voices to be raised. If the media asks why you are here, tell them this Bill is against our religion, Shariat and our rights.’’ 

(This is the unedited version of the story that appeared in Mumbai Mirror on March 31, and provide that link 

The post “We Don’t Need Women’s Rights, Child Rights, We Have the Shariat” : Dr Zehra appeared first on SabrangIndia.

It is a fact that Muslims in jails exceed their share in population. This has been historically true and no single party can be blamed for this sad state of affairs. It is also true that over the years, the condition of Muslims has deteriorated due to a number of factors and now their socio-economic indicators are very much similar or lower than the scheduled castes of the country. This gives an added sense of relative deprivation to the community which continues to battle religious stereotypes and now increasingly bears the brunt of being a permanent marker of anti-national identity. The targeted killing of Muslims over cow and love jihad has made the community jittery and therefore any move by the government would largely be seen with an element of suspicion within the community. It is not without reason therefore that Muslims have been arguing that the triple Talaq is nothing but a ploy to overpopulate the jails with Muslims.

These fears are not to be taken lightly. After all, the bill makes the act of triple Talaq non-cognizable offence which would give the police wide powers to arbitrarily arrest Muslim youth just on the basis of a complaint. Added to this level of harassment, is the very real possibility that women themselves would be prone to abusing the provisions of the law as it has happened with anti-dowry law, etc. For the Muslim man therefore there will be hardly be any recourse, neither at the state level nor at the family level and that does not portend well for our family structures. It was realisation such as these which made Muslim women’s groups demand that the offence be made into a non-cognizable one. But for a government in a hurry to promulgate this bill into a law, there was no need to pay heed to such reasoned arguments. It might sound ironical but it seems that the real targets of the bill were not Muslim women but some other group which wanted to punish Muslims as a whole.

In many ways, this was coming and Muslim religious figures are to blame for this. Firm in their view that Islam is the best religion and practising Islamic supremacy from the pulpit, they never realised that Muslims as community had become backward and their religion was now synonymous with all that was regressive within many religions. Through their practice of Islam, they had transformed it into a faith of social conservatism and orthodoxy. It is not that they did not get their chance at reforming this outmoded system. In recent memory, it was the Shah Bano moment when they should have given the call for reforming the personal law. Instead, they browbeat the Congress government into believing that the Supreme Court has committed a cardinal sin by venturing into the Muslim personal law and passing a judgment which ensured some minimum maintenance to Muslim divorcees.

 All hell broke loose when the judgment was passed and predictable slogans of Islam in danger were raised. Champions of minority rights, who had no understanding of the Muslim religion, threw their might with the regressive stand of the Muslims and colluded with the Mullahs to ensure that Muslim women remain in chains and at the beck and call of their husbands.

 The current debate on instant triple Talaq, initiated by Muslim women themselves, was another opportunity which the community missed. Instead of paying heed to the just demands of Muslim women, the clergy started calling them names and putting motives to their political action. Again, it was their firm belief that they follow the best religion on the planet that became their undoing.

Had the clergy paid some attention to the demands of Muslims and reformed the personal law in tune with the demands of modernity, things would not have come to such a pass. Instead, what we got from the clergy was the shaming of the entire Muslim community by levelling baseless and anti-women arguments in the Supreme Court. Despite the whole world now knowing what kind of a backward religion Islam is, the clergy remains steadfast in their belief in the superiority of Islam. Even after the Parliament is debating the bill to criminalize triple Talaq, the clergy still is more interested in pointing out the ‘nefarious’ designs of BJP led government and claiming that Muslim women, who spearheaded the movement for reform are nothing but agents of the ruling government. Absolute nonsense.

Yes, it is true that Ishrat Jahan has joined the ruling dispensation. So what? And how does this single act delegitimize the struggle of Muslim women for gender justice. Everyone is free to join any political party of his or her liking. In doing so Ishrat has exercised her fundamental right and the clergy has no business casting aspersions on her motive. After all, there are many Muslim men in BJP, but such vituperative statements are never made against them.

The problem is perhaps mush deeper. The more important question that needs to be asked is this: why is it that reformers like Ishrat Jahan and others find space only in BJP and not in Congress and other so called secular political parties? After all, why is it that a reformist like Arif Muhammad Khan did not find space in Congress or the Left parties who cry hoarse over their ‘progressive’ and ‘pro-minority’ politics?

The fact remains that these parties have no vision for the Muslim community. Also, they firmly believe that being pro-Muslim must translate into appeasing the Mullahs since it is the Mullahs which control the Muslim community. Whether it is the SP or BSP in Uttar Pradesh or it is the Trinamool in West Bengal, they all think alike when it comes to Muslims. And their thinking does not go beyond the Mullahs and their madrasas. They need to realise that the tide is turning within Muslim community. That now there are many within the community who are ready to challenge the monopoly of the Mullahs and there are many who now want to move in a different direction from the sectarian agendas which had hitherto defined Muslim politics. The sooner these so called progressive parties realise it, the better it will be for their own political fortunes.

Again, the clergy must realise that this is not the end of the struggle for women. This is just the beginning and in the coming years we will have similar legitimate voices raised on the evil practices of polygamy, Nikah Halala and even the unilateral right of divorce which Muslim men enjoy. It is time for a comprehensive reform of the Muslim personal law. The Mullahs would do good to at least start debating these issues within their circles if they want to remain relevant in the Muslim society.   

Courtesy: New Age Islam
 

The post The Bill on Triple Talaq May be Bad in Law; But it is the Mullahs Who Should be Blamed for This Mess appeared first on SabrangIndia.

All of us like to feel good about ourselves. Rescuing “poor Muslim women” from “villainous” men of their own community is a measure par excellence for fulfilment of ‘rescue’ fantasies and the accompanying heady feelings. It adds an irreproachable and unanswerable dimension to the demonising of the males of the ‘other’ community as part of a certain agenda. The general formula is the construct of the virile black male as lusting after white women in white supremacist ideology; and likewise of the Muslim male as lusting, if not raping ‘pure’ Hindu mothers and sisters.

However having said that, the holding of the practice of instant triple Talaq as unconstitutional and invalid by the majority verdict of the Supreme Court is most welcome and long overdue. The waiting for reform within the community, while having many takers, has the flavour of Samuel Beckett’s ‘Waiting for Godot’. Dr. Asghar Ali Engineer having devoted his life to reform within the Dawoodi Bohras died without making much of a dent in the powerful Syedna’s autocratic powers. The Honourable Supreme Court of India enjoying a paramount position in the polity played a crucial role in the context of rights of individuals and authoritarian religious practices.

The case of Sardar Syedna Taher Saifuddin Saheb versus State of Bombay, AIR 1962 SC 853 is telling as to the pivotal role of the courts in the interplay of religious practices and the rights of the individual. The Bombay Prevention of Excommunication Act, 1949 by Section 3 decreed that: “… no excommunication of member of any community shall be valid and shall be of any effect”. The preamble to the Act states that in keeping with the changing times and in the public interest, it was expedient to stop the practice of excommunication prevalent in certain communities. The definition of “community” contained in Section 2 of the Act included the included the Dawoodi Bohras.

The Syedna, the religious head of the denomination challenged the constitutional validity of the Act on the ground that it violated its fundamental rights guaranteed by Articles 25 and 26 of the Constitution. The majority judgment of the five-judge Constitution Bench of the Supreme Court in its wisdom pronounced the impugned Act void as making excommunication invalid infringed the right of the community under Art. 26(b)to manage its affairs. The judgment declares that the fact that the rights of an excommunicated person would be affected is of no consequence. Strangely, without offering any reasoning the verdict laid down that ex-communication could not be said to prejudicial to public order, morality and health, nor could it be said to be a law “providing for social welfare and reform” which are permissible grounds for imposing restrictions on the right under the Constitution.

Justice Sinha, the Chief Justice to the institutions’ credit gave a dissenting judgment more in tune with the spirit and ethos of the Constitution. Sinha held that the actions of the religious head touching upon the civil rights of the members of the community were justiciable and liable to interference by the legislature and the judiciary. The Act was held to fall within the saving provisions of Article 25(2)(b) as a measure of social welfare and reform and valid.

It is good to keep in mind that even after the passage of more than half-a-century since Sinha’s lone dissenting judgment in 1962, the present majority judgment outlawing triple Talaq in a suo moto petition taken up by the Apex Court titled Muslim Women’s quest for Equality versus Jamiat-Ulema-I-Hind, the verdict is a close 3:2 ruling. A wafer thin single judge margin indicates that it could well have gone the other way.

The frame of discourse of the arguments advanced and the discussion in the triple Talaq judgments seem discordantly medieval. Gender discrimination and equality fall by the wayside. The discourses are in the nature of – Talaq-e-Biddat or triple Talaq as invalid solely because it is arbitrary and does not give any reasons. Reasons like that the woman is not docile and obedient or is of ‘bad’ character are in tune with the Quran and would make the talaq acceptable and valid! Thus we have the judgments excerpting Verse 34 in Section 6 of Sura IV of the Quran:

“34. Men are the protectors
And maintainers of women,
Because God has given
The one more (strength)
……
As to those women
On whose part ye fear
Disloyalty and ill-conduct,
Admonish them (first),
(Next), refuse to share their beds,
(And last) beat them (lightly);”

“Light beating” for “disobedient wives” is apparently advocated by God himself. The couplet in Tulsidas Ramcharitmanas -‘Dhor, Ganwar, Shudra, Pashu, Nari Sakal Tadan Ke Adhikari’ which has been given various spins, translates as ‘The drum, the illiterate, the untouchable, animals and women are deserving of being beaten’ and seems in a similar vein. Whatever may have been conceptually the progressive origins of marriage as a contract in Muslim personal law, as compared to a sacrament in other religious paradigms; the lived realities of women speak for themselves. Shayara Bano, one of the petitioners, speaks of being tortured and beaten for cash and a car as dowry. Regardless of postulated imagined utopias, Ram-rajya or communism or marriage as a contract in Islamic Law, the concrete practices constitute the reality and cannot be disassociated from the conceptions and ideologies.

Rakesh Shukla is an Advocate and Member, Supreme Court Bar Association

Courtesy: Countercurrents.org

The post Triple Talaq Judgement: Gender, ‘Othering’ and a Medieval Paradigm appeared first on SabrangIndia.

There were some common grounds in three separate Judgments given in the Shayara Bano case – none of the three Judgments contested the ground that “personal laws”, not being a law passed by the state, cannot be subjected to test of violation of fundamental rights of citizens. The Chief Justice of India and Justice S. Abdul Nazeer in their joint Judgment held that personal laws or laws that govern family relations viz. marriage, divorce, maintenance, custody of children, intestate succession, adoption of children, guardianship, etc., as they are not laws passed by the state, could not be subjected to judicial scrutiny as to whether they violate fundamental rights of the citizens.

It was not within the realm of discretion of judiciary to set aside a matter of faith and religion, held CJI and Nazeer J. They stated in their judgment, “It is not difficult to comprehend, what kind of challenges would be raised by rationalists, assailing practices of different faiths on diverse grounds, based on all kinds of enlightened sensibilities. We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and ‘personal law’.” The Honourable Justices further held, “….while examining issues falling in the realm of religious practices or ‘personal law’, it is not for a court to make a choice of something which it considers as forward looking or non-fundamentalist. 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. Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem.” (Shayara Bano vs. Union of India, 2017, p. 267, para 196). To follow personal law then, is part of freedom to profess, practice and propagate religion, unless it falls foul of reasonable restrictions mentioned in Article 25 of the Constitution, viz. public order, morality and health.

Rohinton F. Nariman and Uday U. Lalit JJ in their joint Judgment did not contest the premise viz., that personal laws are beyond the pale of judicial scrutiny. They held that the practice of talaq-e-biddat was recognized and enforced by Section 2 of ‘The Muslim Personal Law (Shariat) Application Act, 1937’, a Colonial legislation. Talaq-e-biddat was therefore ‘law in force’ within the meaning of Article 13 (1) of the Constitution and liable to be struck down if talaq-e-biddat fell foul of the Part III of the Constitution of India on fundamental rights. The Constitutional Courts therefore had power to set it aside on the ground that it was arbitrary. Justice Kurian Joseph in his Judgment agreed with the premise propounded by the CJI and Justice S. Abdul Nazeer, viz. that talaq-e-biddat could not be termed as ‘law in force’ being a customary law and traditional practice. Impugned practice of instant talaq therefore was part of personal law and was amenable to judicial scrutiny for violation of fundamental rights. However, Kurian J. disagreed with the CJI and Nazeer J. on the issue that talaq-e-biddat was against the tenets of Holy Quran and that being so, it was ultra vires the S. 2 of the Shariat Act, 1937 and did not enjoy Constitutional protection. Talaq-e-biddat was therefore liable to be set aside.

Unrestrained freedom of personal laws
It could therefore be said that the learned Judges of the Constitutional Bench gave a 3:0, if not 5:0, verdict that personal laws of all communities would reign unrestrained and enjoyed the protection of Article 25[1] of the Constitution which guarantees right to freedom of religion. Personal laws, as mentioned above, are rules of decision which pertain to marriage, divorce, etc. Unless codified (and to the extent codified) by the legislature, they are based on religious scriptures, customs, traditions and usages of communities. Custodians of religious scriptures and customs of all communities have been patriarchal and feudal elite. They often enforce them using fear of God and at times use coercive force which may include threat of exclusion from community controlled institutions, social boycott and even physical force. Personal laws often privilege a section (feudal and patriarchal elite) and disadvantage the rest in various degrees. Women and children have always been disadvantaged by the prevalent understanding of religious scriptures mediated through patriarchal culture. The custodians of personal laws – we can call them cultural entrepreneurs or gate keepers of culture, customs and traditions – are necessarily conservative, may be with a few exceptions. Much necessary changes in customs and traditions come about when individuals within communities challenge the practices and traditions in face of ostracization and coercive harassment.

Freedom to profess, practice and propagate religion accrues to all persons. All persons are equally entitled to that freedom. However, if personal laws are accorded unbridled Constitutional protection by Art. 25, the cultural gate keepers will enjoy higher degree of freedom as they can impose their understanding of religion and personal law on others. The elite cultural gatekeepers often draw lines to construct separate communal walls. These custodians of community would judge right behaviour from wrong for their entire community. Can we then say all persons equally enjoy freedom of religion? The elite would enjoy more rights to profess and practice religion than other members of a community. There would be hierarchy within each community based on gender and other birth based social status. The cultural gatekeepers defend these hierarchies as God made. India would then look more like confederation of communities rather than nation of equal citizens.

Dr. Babasaheb Ambedkar wanted make our political democracy a social democracy as well. Social democracy is a way of life which recognizes liberty, equality and fraternity as the principles of life. He warned us, “On the 26th of January 1950, we are going to enter into a life of contradictions. In politics we will have equality and in social and economic life we will have inequality. In politics we will be recognizing the principle of one man one vote and one vote one value. In our social and economic life, we shall, by reason of our social and economic structure, continue to deny the principle of one man one value. How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life? If we continue to deny it for long, we will do so only by putting our political democracy in peril. We must remove this contradiction at the earliest possible moment or else those who suffer from inequality will blow up the structure of political democracy which is Assembly has to laboriously built up.” (Dr. Ambedkar, 1949)

Despite setting aside the practice of instant triple talaq in one sitting by 3:2 verdict, there is a cause of worry. Personal laws have been placed on a pedestal of freedom of religion. There is not even a whisper of gender equality in the entire judgment. R. F. Nariman and U. U. Lalit JJ. invoke Art. 14 in support, however, on the issue of arbitrary nature of talaq-e-biddat.

AIMPLB reaction
The All India Muslim Personal Law Board (AIMPLB) in its initial reaction reminded us that the Court had upheld their submissions viz. personal laws are part of freedom of religion and cannot be interfered with. AIMPLB felt that their position had been vindicated. The Ulemas of various schools of jurisprudence would still be sitting over the lives of Muslim women enforcing their writ. Though talaq-e-biddat has been set aside, Muslim women could still be divorced by talaq-e-ahsan (two pronunciations with a gap of three months) and talaq-e-hasan (pronouncing talaq once every month three times when his wife in not menstruating). The instant talaq would be replaced by a procedure to be followed over a period of three months. While no marriage can be forced upon either partner, and it is not prudent to continue a marriage when there is an irretrievable breakdown, divorced women should not be left in a situation of destitution to fend for herself. To AIMPLB, the practice of talaq-e-biddat (something they agreed was bad in theology, though good in law) has been sacrificed but the Muslim personal law has been saved.

Secularism
The Shayara Bano Judgment has drawn redlines for the judiciary. Personal law having been declared integral part of freedom of religion, they would not be amenable to judicial scrutiny for violation of fundamental rights. Ironically, under Article 25, right to freedom of religion is not absolute. It has been subjected to 6 reasonable restrictions. 1) public order; 2) morality, 3) health, 4) other provisions of Part III of the Constitution (fundamental rights), 5) regulation or restriction on economic, financial, political or secular activity associated with religious practice and 6) providing for welfare and reforms. The last two restrictions would require legislative intervention. In our humble understanding, when the judiciary is mandated to protect the freedom of religion, the language of Art. 25 is clear – it is subject to the other provisions of Part III, including Articles 14, 15 and 16 right to equality, recognized for all persons including gender equality.

However, so far as personal laws are concerned, The Shayara Bano Judgment seems to have passed to buck on to the executive and legislature to make it compliant with the fundamental rights. Given the political agenda of uniform civil code of the present regime, minorities fear that the legislature may impose a family law that is entirely alien to their way of life and with the intention to “integrate them into a Hinduized nation”. The learned former Attorney General – Mukul Rohatgi submitted before the Court that if they set aside the practice, the Central Government was ready to bring in legislation. This fear of imposition of an alien code keeps the flock of minority together. They fear any change, howsoever desirable and good for the community.

The Shayara Bano Judgment seems to imply that the Judiciary is obliged to uphold religious freedom of religio-cultural gatekeepers in their enforcement of personal laws. The Judiciary would refrain from protecting fundamental rights of members of the community vis-a-vis the religio-cultural gatekeepers. The Judiciary would encourage church within Islam even though the religion does not permit one. There is no agent between God and believer. Believer can seek help to understand the guidance of Quran but she is solely responsible and responsible only to God, not the religio-cultural gatekeepers. Shayara Bano Judgment leaves gullible followers to the mercy of the self-appointed church – institutions propounding and enforcing various fiqhs and the AIMPLB. Islam does not oblige believer to follow any school of jurisprudence, just be guided onto the straight path (sirat ul mustaqim) by her own understanding and be responsible only to Allah. There is enough space in Islam for enlightened understanding evolution of law in accordance with changing times and the process is called ijtihad. The Ulemas of various fiqhs closed the gates of ijtihad and merely follow their respective fiqhs. They extol the virtue of taqlid, i.e. merely submitting and following without application of mind to their fiqhs.

While the Shayara Bano Judgment is welcome in so far as it sets aside the practice of talaq-e-biddat, the protection accorded to Muslim Personal Law on the grounds of freedom of religion is worrisome. The Judgment has left minority citizens to either the mercy of cultural gatekeepers propagating taqlid or to a Parliament wherein the Hindu supremacists are in majority – between the devil and the deep sea.

Three Ld. Judges of the Constitutional Bench accord protection to personal laws on the basis of Article 13 (1), which provides that only laws in force before the commencement of the Constitution can be declared void in so far as they are inconsistent with the Constitution. The CJI, Nazeer and Kurian JJ. held that Muslim personal law is not a ‘law’ within the meaning of the term, and therefore cannot be tested on the ground of inconsistency with the Constitution, including the fundamental rights.

Nariman and Lalit JJ. opined that personal laws operate under the Shariat Act, 1937 and therefore is a law as defined in Article 13 (3). Article 13 (3) (a) includes within the meaning of law even customs and usages having force of law within the territory of India. Muslim personal law is not only customs and usages having force of law within the territory of India, the customs and usages are also mandated under the Shariat Act, 1937. On both counts under Article 13 Muslim personal law is “law” as defined under Art. 13 and therefore to the extend it is inconsistent with the fundamental rights under Part III of the Constitution, it is liable to be declared void and inoperative.

Operation of Muslim Personal law impacts 172 million Indians in important area of marriage, divorce, maintenance, custody of children, testate and intestate succession, guardianship, adoption of children, etc. Can we leave this vast and important area of life to the whims of cultural gatekeepers and exclude it from important rights as equality, justice, right to life and liberty?

Religion may not be subjected the challenges raised by rationalists or enlightened sensibilities; religion and ‘personal law’ my be perceived, as it is accepted, by the followers of the faith and not, how another would like it to be as opined by the CJI and Nazeer J. However, should the cultural gatekeepers be allowed unrestrained freedom in the name of personal law and force a section of citizens, particularly women of the community, to live as slaves or second class citizens and the judiciary feel helpless to come to their rescue?

We are not against Muslim Personal Law or any other personal law for that matter. They all have their strengths and are good for their followers. We firmly stand for diversity. However, so far as any provision of a personal law is inconsistent with the fundamental rights of the citizens, it should be held to be void. In Shayara Bano Judgment we have achieved only partial victory. We have to carry on the struggle till these religio-cultural gatekeepers are completely marginalized or they too are in consonance with Constitutional objectives.

The post Visions of Secularism: Triple Talaq Judgment appeared first on SabrangIndia.

Image Courtesy: PTI

The only clarity about the “triple talaq judgment” in Shayara  Bano v Union of India and others is that instantaneous triple talaq has been struck downby the Supreme Court. This article attempts to throw some light on the judgment’s logic, meaning, and implications. 

The immediate questions that come up are: Does the judgment ban only instant triple talaqor all kinds of talaq? Does it hold instantaneous triple talaq as constitutionally bad? Does the Supreme Court hold that personal laws can be tested on the anvil of constitutional law? Has the Supreme Court said anything new or has it merely repeated what it had stated in earlier judgments— especially in the case of Shamim Ara?¹  Most importantly, what is the way forward?

Counterproductive in the Long Run
While the judgment needs to be welcomed for taking a small step in favour of women’s rights, even the much hailed opinion of Justices Nariman and Lalit remains what I would call a “safe” judgment. They struck down talaq-el -biddat on extremely narrow constitutional grounds when they had the opportunity to strike it down on a variety of grounds making it a case of lost opportunity for gender justice. I will try to explain herein why, in fact, the majority judgment may even prove to be counterproductive in the long run. 

Of course, there can be a debate as to whether the judiciary should at all intervene in matters of personal law or whether this should be left to the legislature. Even when it comes to the legislature, the issue would still beabout whether the legislature should step in only when the community demands it or should it even otherwise carry out its “obligation” under the Fundamental Rights so asto bring about reforms in religious practices and law. The other important factor is whether (with the growing clout of the Bharatiya Janata Party (BJP) and the Rashtriya Swyamsevak Sangh (RSS) one should call for changes in personal laws of minority communities at all, as this can be used as a stick to beat them with and become a vehicle for the majoritarian agenda. 

I do not go into these debates in this article. However, I wish to make my position clear because some of my conclusions  are coloured by my opinion on these issues. I do believe that when it comes to gender equality, the constitutional courts should and do have the power to strike down laws—personal or otherwise—which are arbitrary, discriminatory, or against the broader framework of Article 21,that is,against the dignity of women. I am also firmly of the view that no such discrimination, arbitrariness, or erosion of dignity can be permitted on the grounds that a particular practice or law is an essential or non-essential part of that religion. Once any provision of a “personal law” is found to violate a constitutional mandate, it needs to go. Laws, personal or otherwise, need to be tested on the anvil of the Constitution and not on the basis of whether that law is based on a true interpretation of a particular religious text.  

I also believe that all “personal laws,” whether Hindu, Christian, Muslim or Parsi, in varied ways discriminate against women. When most of the political parties or fundamentalist groups speak about a uniform civil code (UCC), they are concerned with “uniformity” and not with “gender justice”. We can thus end up having a UCC which  uniformly oppresses women. However, if, at some stage, a uniform law which removes all gender discrimination as well as discrimination on grounds of sexual orientation is brought in, I would welcome such a law. That I do not see such a model law being enacted even in the distant future is a separate issue. In any case, at present, we are left with judicial intervention for striking down pernicious personal laws, and it is in this context, that I am disappointed with the present judgment. 

Issues before the Court
A constitutionbench of five judges decided the case. Three separate judgments were given. The first by Justice Khehar and Justice Nazeer, the second by Justice Nariman and Justice Lalit, and the third by Justice Kurian Joseph. As a result, there is no majority judgment and only those aspects of any of the judgments which have the affirmation, in aggregate, of at least three judges can be said to be laying down the law. 

All the five judges agree that the only issue to be decided concerns talaq-ul-biddat or what is commonly known as instantaneous triple talaq. They do not  venture into the legality or constitutionality of other forms of unilateral talaq or other aspects of Muslim personal law such as polygamy. 

The common meeting ground of all five judges (as accepted by lawyers on both sides) was that personal laws can be challenged only if they have been legislated and not if they are purely in the realm of non-legislated practices. It was also agreed by all sides that talaq-e-biddat was a pernicious practice. The question was whether it could be struck down by the court. 

Forms of Talaq
Talaq-e-biddat is practised only by Sunni Muslims and that too only those Sunni Muslims who belong to what is known as the Hanafi School. Sunnis are the majority among Muslims in India and amongst them, an overwhelming majority belong to the Hanafi school. Crores of Muslims in India would consequently be affected by this judgment. 

Under the Islamic law, two other methods of talaq are also recognised, namely talaqahsan and talaqhasan. All the three forms of talaq are unilateral (that is, they do not require the consent of the wife) and can only be exercised by Muslim men. Talaqhasan and talaqahsan, however, are not instantaneous and require a certain time frame for them to become effective. They are also revocable during this time period. Talaqahsan consists of a single pronouncement of divorce made during the period between menstruations followed by abstinence during the period of iddat. Thus, it takes effect only at a future date. Talaqhasan consists of three pronouncements made during successive tuhrs (period between menstruation) and no intercourse taking place during this period. Talaq-e-biddat consists of three pronouncements during a single tuhr, whether in one sentence or in separate sentences. It takes effect immediately. Talaqahsan and talaqhasan are spread over time, arerevocable, and are also subject to a process of reconciliation. But talaq-e-biddatoccurs at one go, is not revocable, and not subject to any reconciliation attempts.  Talaq, its forms,its legality and propriety have been much discussed in India by Muslim scholars and since at least the last hundred years— by various courts.  

Earlier Views of Supreme and High Courts
Initially, the courts were of the view that talaq-e-biddat, while being a pernicious practice was legally valid. The argument was that “talaq-e-biddat was good in law but bad in theology.” Of late, the Supreme Court and the various high courts have been laying down strict conditions under which talaq can be held to be valid and this culminated in Shamim Ara’s case (supra) in which  the apex Court held talaq-e-biddat to be unlawful.  It observed: 
 
“13…The correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and wife by two arbiters- one from the wife’s family and the other from the husband’s, if the attempts fail, talaq may be effected. In RukiaKhatun Case the Division Bench stated that the correct law of talaq as ordained by the Holy Quran is : (i) talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife from her family and the  other from the husband by his. If their attempts fail, talaq may be effected. …We are in respecful agreement with the abovesaid observations made by the learned Judges of the High Courts.”

The Court also affirmed the earlier view of Justice Krishna Iyer when he was a high court judge observing:
“..The view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions…It is a popular fallacy that a Muslim male enjoys, under the Quoranic law, unbridled authority liquidate the marriage.”
In Shamim Ara’s case, the Supreme Court held that since in instant talaq there is no scope for reconciliation, nor can reasons for such talaq be tested, such talaq would be bad in law.  This has also been followed by a number of high court judgments which say the same. Justice Khehar (alongwith Justice Nazeer) felt that Shamim Ara was not good law while the others agreed with the Shamim Ara observations.

Muslim women on the other hand have to take recourse to Dissolution of Muslim Marriages Act, 1939 which requires them to approach the Court for divorce.

All the judges agreed that though this form of talaq is not mentioned in the Koran, it has been practised across the world for almost 1400 years. Justice Khehar also relied on legislations in a number of countries (theocratic and otherwise) banning instantaneous triple talaq. He drew two conclusions from this. First, the fact that a  large number of countries had prohibited talaq-e-biddat was proof of it being a very widespread practice amongst the Sunnis. Secondly, Justice Khehar (along with Justice Nazeer) also came to the conclusion that this also showed that it can only be prohibited by a legislation and not by judicial action. 

Powers of Constitutional Courts
It is important to look at what the courts, most importantly the Supreme Court, can or cannot do under our Constitution. Article 13 of the Constitution provides that all existing laws at the time of the Constitution coming into force which are inconsistent with the fundamental rights chapter of the Constitution, shall be void to the extent of inconsistency. Similarly, in the future, no law which takes away or seeks to abridge any right conferred by the Fundamental Rights chapter shall be passed in the future. Right to equality, right to non-discrimination, and right to life and liberty are part of the Fundamental Rights chapter. The question that still remains is that while a law in violation of the fundamental rights can be declared as void, how do you define a law? More particularly, the question is whether personal law can be considered as “law” for being tested in the context of fundamental rights. Article 13 (3) (a) states that “ ‘law’ includes any ordinance, order, bye law, rule, regulation, notification, custom or usage having in the territory of India the force of law.”Therefore, even a custom or usage which is in violation of the fundamental rights can be declared as void or unconstitutional. 

At first glance, it would appear that personal laws which are essentially based on custom or usage would be “law” and susceptible to the rigours of the fundamental rights chapter. Thus, any personal law which is discriminatory towards women should not only be subject to constitutional rigour, but also be declared unconstitutional because discrimination against women is in violation of the fundamental rights. Forget instantaneous triple talaq, but any kind of unilateral talaq, or polygamy, or principles of other personal laws including Hindu law, which discriminate against women, should have been declared unconstitutional a long time ago. It is important to remember that the rights to pronounce talaq (instantaneous or otherwise) and to indulge in polygamy are rights only conferred on men and not women. Similarly, under Hindu law the father is declared as the natural guardian and only after him is the mother declared a natural guardian. Take for instance the Hindu Marriage Act which allows a man to marry if he has completed 21 years of age but a woman to marry if she has completed 18 years of age. Discriminatory practices against women are prevalent across various personal laws. 

While courts (including the Supreme Court) are in no position to formulate a uniform civil code (gender just or otherwise) one expected the Constitutional courts to strike down discriminatory aspect of the personal or family laws. But by and large the high courts and Supreme Court despite giving regular homilies on equality of women have failed to declare such laws as unconstitutional. This opportunity has again been lost in the triple talaq case. 

Does the 1937 Shariat Act Codify Muslim Personal Law?
Since it is generally agreed that personal laws which had not acquired a legislative flavour, that is, those personal laws not recognised through a legislation cannot be tested on the anvil of fundamental rights, the first issue was whether Muslim personal law had at all been legislated or not. In effect this required consideration on whether  the Shariat Act, 1937 amounted to the Muslim Personal law becoming, or being metamorphosed into   legislation. If the answer is yes then all aspects of Muslim personal laws could be tested against the Constitution. If the answer is no then they could not be. According to Muslim Personal Law Board, the 1937 Act was not meant for enforcing Muslim personal law which was enforceable in any case by itself but to do away with custom or usage which is contrary to the Muslim Personal Law. 
Section 2 of Shariat Act, 1937 reads:

“2 Application of Personal law to Muslims. Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubarat, maintenance, dower and guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).”

Justice Khehar (alongwith Justice Nazeer) and Justice Joseph held that the Shariat Act 1937 did not convert the Muslim personal law into a legislated enactment; that it remained uncodified and therefore could not be tested on the grounds of Constitutional violation. They held that it was enacted not to codify Muslim Personal Law or to make it into a legislative fiat but to clarify that non Islamic customs and usages which had crept into Muslim law would no more be held valid. On the other hand, Justices Nariman and Lalit held that all forms of talaq recognised and enforced  by Muslim personal law are also recognised and enforced by the Shariat Act. 

The judges observed that “it is very difficult to accept the argument on behalf of the Muslim Personal Law Board that Section 2 does not recognise or enforce triple talaq. It clearly and obviously does both, because the section makes triple talaqthe rule of decision in cases where the parties are Muslims.’” According to Justice Nariman, the Shariat Act codified the Muslim personal law and therefore the provisions of Muslim personal law were liable to be tested on Constitutional grounds and if found to be in violation of the fundamental rights chapter were liable to be struck down.

What is crucial here is that the three judges have held that Muslim Personal Law did not get codified, or to use their words metamorphosed into a legislation, and therefore could not be tested on the touchstone of the Constitution. Justice Khehar and Nazeer concluded that in view of this, instant triple talaq which continued to be part of the personal laws could not be held unconstitutional. Justice Kurian Joseph, on the other hand, while agreeing with Justice Khehar that the Shariat Act, 1937 did not codify Muslim personal law came to the conclusion that instant triple talaq was against the tenets of the Quran and was thus not part of the personal laws and therefore at the highest amounted to custom or usage which was pernicious and not part of Muslim personal law and thus bad in law. He therefore agrees on the fundamentals with the judgment of Justice Khehar but disagrees on the details.

The logic used is that there are various sources of Islamic law but that the Quran is the main source while all other sources are supplemental. If Quran prohibits a practice, such a practice cannot become part of Islamic law or Shariat merely because other sources permit it. According to Justice Joseph, the Quran prohibits or frowns upon instant triple talaq and therefore instant triple talaq cannot be considered as part of Shariat. Therefore, since the 1937 Act says that the shariat is the rule of decision in matters including talaq and since instant triple talaq was never a part of theShariat, it has to be prohibited. The prohibition here flows from the reading of theShariat Act and not from applying principles of the Constitution of India. 

Justice Nariman, on the other hand concludes that the Shariat Act, 1937 converts the Muslim personal law into a legislated law and thus it can be tested on the anvil  ofconstitutionality. Having thus held,  thejudge should have tested triple talaq to see whether it is discriminatory towards women or whether it is in violation of dignity of women. Triple talaq is not available to women and is on the face of it discriminatory.  Even talaq is violative of the dignity of women for various reasons including the repeated observations of the Supreme Court over the years which imply that if a woman is not “obedient” or “docile” it may be a good ground for talaq. This is nothing else but reaffirmation of patriarchal values. These should have been tested at least by Justices Nariman and Lalit since they did go into the question of the constitutionality of triple talaq. The opportunity was however missed. 

Does Arbitrary State Action Violate Fundamental Rights?
Justice Nariman treads a narrow but largely uncharted territory. The earlier approach of the Supreme Court was to hold that the fundamental right to equality is violated if the state discriminated against a group without valid reasons.  This interpretation was given an expanded meaning and at least since 1974 the Supreme Court has been holding that even arbitrary state action (without being necessarily discriminatory towards a group or section) would also be an antithesis of equality. The courts could strike down a state action as being in breach of Articles 14 or 15 not only if it was discriminatory but also if it is arbitrary. State action can be of varied kinds. In the Macdowells case² the Supreme Court held that while ordinary state actions could be challenged as being arbitrary or discriminatory, a state action which is legislative can only be challenged under Articles 14 and 15 of the Constitution if it is discriminatory and not merely because it is arbitrary. 

In the triple talaq case, Justice Nariman (with Justice Lalit) took a constitutional stride by observing that the Macdowell case was wrongly decided and a legislative action could also be challenged as being manifestly arbitrary. The Court observed, “Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/ or without adequate determining principle. Also when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.”  On this aspect Justice Joseph Kurian agrees with Justice Nariman. In terms of constitutional jurisprudence, this is a major breakthrough and advance. Three of the five judges (and thus the majority) hold that  legislation can be challenged as being in violation of equality clause even if it is not discriminatory as long as it is arbitrary.

But this is where the concurrence stops because Justice Joseph holds that in the present case since the Islamic law has not been given legislative colour, there is no question of testing it on the grounds of being arbitrary. Justice Nariman on the other hand proceeds ahead and holds that triple talaq which is part of the legislated Shariat Act is arbitrary and thus needs to be struck down. 

While this is a leap forward constitutionally,  it hardly takes the case ahead in terms of the Muslim Personal Law. According to the majority, the Muslim Personal law has not been metamorphsed into legislation and thus it cannot be challenged as being unconstitutional. Tomorrow, if polygamy or other forms of unilateral talaq are challenged and the court feels that they are not against the Quran or Hadith, they will be held to be legally valid practices irrespective of whether they are arbitrary, discriminatory or against the dignity of women.Jurisprudentially the present case does not advance Muslim women’s cause even a wee bit. 

In terms of talaq-e-biddat, it only reiterates what the Supreme Court had already held in the case of Shamim Ara.

Justice Khehar’s opinion (supported by Justice Nazeer) is extremely curious to say the least. It also suffers from major contradictions. On one hand it holds that instant talaq is part of the Muslim Personal Law. He further goes on to hold that personal laws are themselves fundamental rights. Then he proceeds to say that, of course a law should be passed prohibiting instant triple talaq. The problem is if triple talaq being part of fundamental rights as he says is prohibited through legislation, such legislation itself can be challenged as being violative of fundamental rights. In fact such a legislation by his own logic would be bad in law as it would be in violation of fundamental rights. To top it, he grants injunction from the exercise of a right, which according to him is a fundamental right, for six months to begin with. This is unheard of and jurisprudentially unprecedented and untenable.  

It was also argued that Article 25 of the Constitution which protects religious freedom as a fundamental right would in turn protect talaq-e-biddat. The Supreme Court has time and again held that essential religious practises are protected by this fundamental right and cannot be tampered with. However Justice Nariman held that as regards talaq-e-biddat is concerned, it is only one form of talaq and the Hanafi school itself treats it as sinful but something to be tolerated. Justice Nariman therefore concluded that this form of talaq cannot be treated in any case as an essential religious practice. 

Justice Nariman held that obviously in instant talaq such attempts of reconciliation have no scope and such instant triple talaq would be treated as  valid even if it was not for any reasonable cause. In view of this, he held that instant triple talaq is manifestly arbitrary and therefore bad. 

Conclusions
The judgment through majority holds that unlegislated personal law does not have to pass the constitutional test but is only required to pass the religious test. It is irrelevant whether such a personal law is discriminatory or against the dignity of women. As long as it can be shown that the particular law flows from religious tenets it is to be held as valid. This is a major impediment for future actions especially against non-legislated personal law, which is what, according to the majority judgment, the Muslim personal law by and large is.. 

On the other hand, the constitutional test can be applied for legislated personal laws such as the Hindu Marriage Act, Succession Act, Parsi Marriage and divorce law, Christian Marriage and Divorce law, Indian Succession Act, etc, and  this judgment add an additional constitutional test, namely arbitrariness, for deciding the validity of such laws. Of course we will have to see how this works out in future when such laws are challenged. The experience of Indian courts even in respect of legislated laws has not been very encouraging when it comes to personal laws being challenged on the grounds of discrimination and dignity. 

While the judgment does declare instantaneous triple talaq as unlawful, it neither declares unilateral triple talaq as unlawful nor does it pave the way for doing so. The majority judgment declares instantaneous triple talaq as unlawful but it does not declare it as unconstitutional–the difference being quite significant. Though the judgment does advance the cause of gender justice on the issue of instantaneous triple talaq it does not open the doors of judicial review in other matters of the Muslim Personal Law. While the opinion of Justices Nariman and  Lalit does find instantaneous triple talaq as being arbitrary and therefore violative of constitutional guarantee of equality, this opinion does not find (in fact does not go into the issue) of instantaneous triple talaq as discriminatory towards women.

However the judgment is still a partial victory for Muslim women for two reasons. First, five Muslim women facing all odds were able to take on the might of the fundamentalists upto the Supreme Court and this by itself is a major success. Second, the amount of publicity and buzz the case and the judgment has generated, including favourable interventions by various women’s organisations working with Muslim women, will go a long way in empowering Muslim women. Unlike the case of Shamim Ara the present one has been discussed in nooks and corners of the country. A large number of Muslim women are now aware that instant triple talaq is not legal. Immediately after the judgment, there were reports of Muslim women approaching police stations to demand action against their husbands for giving them instant triple talaq. The question is not whether approaching the police station is the right procedure to be adopted but that these women feel enabled and invigorated by the knowledge that the highest court has recognised certain rights, and declared a practice as pernicious.

 
Notes
¹ Shamim Ara v. State of U.P. 2002 (7) SCC 518
² State of A.P. versus McDowell & Co. 1996 3 SCC 709
 
(This article appeared in the Economic and Political Weekly and is being re-published with permission of the author)
 

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Organisations including Rokeya Nari Unnayan Samity and South Kolkata Society for Empowerment of Women also roped in several victims of Triple Talaq, professors, lawyers and others.

Speaking on the occasion, Khadija Banu, Secretary, Rokeya Nari Unnayan Samity (RNUS), elaborated the plight of Muslim women due to instant talaq in Bengal. “Islamic laws have been updated in accordance with time and civilizations in many Muslim countries like Arab. If Muslim countries can update Islamic Sharia from time to time, then why a secular, liberal country like India cannot do so?,”  Banu said. She also claimed that her  organization will fight for equality, security, safety and equal right in properties for women.

Former Judge of Kolkata High Court, Malay Sengupta who is also President of South Kolkata Society for Empowerment of Women highlighted the politicization of Sahabano case during his short lecture. “ Few Muslim politicians are ruining the lives of thousands of Muslim women by formulating merely some laws and not introspecting the aftermath of the laws that adversely accelerate the plight of the women,” he said.

Tahamina Bewa, a 36 years old widow and victim of triple talaq who came from Domkal, Murshidabad district to attend this programme, also narrated her plight. “It’s a matter of great joy for many Muslim women like us who are forced to live in plight due to instant triple talaq. Men pronounce Talaq by writing on a piece of paper and even uttering on phone,” she said. “My husband left me by saying triple talaq when I was 22 years old and married other woman. I am forced to live with my father who is very poor,” she said.

Several other women Ira Khatun, Saira Khatoon, Rahima Bewa, Ulia Khatun, all victim of triple talaq or polygamy, too attended the program. Most of them expressed satisfaction over  on SC’s verdict and hoped no one else will face the same sufferings anymore.

Courtesy: Two Circles
 

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Indira Jaising/ Image courtesy The Indian Express

Sivangi Misra (SM): What are your views on the Triple Talaq judgment? Will the verdict open the doors to challenging personal laws in future?
Indira Jaising (IJ): I do think so because, as I’ve been saying, the Court has held, in the past, introducing constitutional law into family law is like introducing a bull in a china shop. But for the first time in over thirty years in the Indian constitutional history, two judges of the Supreme Court have said that this practice is unconstitutional, and that it violates Article 14 of the Constitution of India.
 

The moment you concede that a law dealing with family matters can be declared unconstitutional for violating any provision of the Constitution, there is nothing to stop the Court from declaring any other provision of any other family law as unconstitutional on the ground that it violates Articles 14, 15 and 21 of the Constitution. So, in that sense it’s a breakthrough.
 

SM: Do you think the judgment is a big step in the direction of gender equality in personal laws?
IJ: Well, I would be happier if the Judges had struck it (triple talaq) down on the ground that it violates the right to non-discrimination on the basis of sex. However, what they (the Court) have done instead is that they have struck it down on the ground that it is “manifestly arbitrary”.

SM: So according to you, this an incomplete judgment? There was scope for the judges to give reasons beyond “manifestly arbitrary”?
IJ: Every judgment leaves you with a feeling that something more could have been done. But the real question is, I believe as you yourself asked me earlier, will it advance gender equality?
Yes, it has the potential to advance gender justice, and I think its now up to the future generation of feminist lawyers to argue.
 

Several provisions of Hindu law, Muslim law, Christian law or Parsi law are unconstitutional. There are several writ petitions pending before the Court, which states that temple entry must be permitted to women in Sabarimalai. Obviously, the same question will arise then.

There are also petitions pending in Court in relation to Parsi law. This judgment will also apply there, where the provisions which are said to be protected are no longer protected. It makes a whole lot of provisions and practices which different religious communities have been following, unconstitutional.

Justice Khehar has said, in this judgment that religious consciousness binds people together into a community. It is true, I do agree, that religious consciousness binds people together as a community, but it doesn’t answer if any part of the consciousness or practise being followed out of that consciousness that violates the Constitution will still be protected or not.

So it’s not enough to say that religious consciousness binds you, yes that is an important part of your identity. But the critical issue is where you separate – what is the legitimate domain of religion and what is the legitimate domain of the secular.

For me, the importance of this case was that I was trying to draw those lines between the religious and the secular. The Court has drawn attention to it and as Justice Nariman says that Muslim personal law of marriage is modern. What he means is that a Muslim marriage does not require any religious ceremony. A contract is sufficient to constitute the marriage. A contract of course can be broken but a contract cannot be broken unilaterally, without consequences.
 

So, in answer to your question, I would say that what I would look forward to seeing is a law which says marriage is a constractious civil union for all religious communities, and not just for Muslim women. If this country is willing to accept a Muslim marriage as contractual marriage, I don’t understand why it is  unwilling to accept a Hindu marriage as a contractual marriage? So, in that sense there has to be a common basis for gender just laws.

SM: So you’re saying that we can still have personal laws, but they should all pass the test of constitutionality?
IJ: I am saying that we must learn to separate the secular from the religious. I am saying is that religion has a role to play in our lives, but you cannot allow that role spill over into secular matters. As far as I’m concerned, marriage is a secular constitution.

SM: What do you have to say about the Court being divided on the issue today, particularly the minority judgment?
IJ: It’s true that the Court was divided, but we are concerned with the majority judgment because the minority judgment is never the law of the land. As far as the majority judgment is concerned, they have held the triple talaq to be unlawful, unconstitutional, and therefore that will govern triple talaq in the future.

Indira Jaising is an advocate at the Spureme Court of India.

Shivangi Misra is a Delhi based lawyer working with Indira Jaising and Lawyers Collective.

Courtesy: Indian Cultural Forum

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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
 

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In a turnaround within months of the UP state elections (that saw it swept to power in Uttar Pradesh), the saffron party led by Yogi Adityanath in Uttar Pradesh has swept gender concerns for Muslim divorced and deserted women, under the carpet.

Indian Express reports that seminars on triple talaq will not be a part of the BJP’s programmes to mark its ideologue Deendayal Upadhyaya’s birth centenary. Instead, it will move to apprise Muslims of central government schemes for minorities. The BJP had asked its alpsankhyak morcha (minority wing) to organise the triple talaq seminars for two weeks starting from September 1. These were scheduled to preferably be organised in madrasas, where experts on women’s rights would address Muslim women on their legal rights and counsel them on empowerment. However, plans changed during BJP national chief Amit Shah’s visit to Lucknow last week.

UP state president of the BJP’s minority wing Haider Abbas ‘Chaand’, said, “The party will hold seminars at district level to make Muslims and other minority communities aware of schemes being run by the Narendra Modi government in the Centre for welfare and empowerment of minorities.”
In April 2017, prime minister, Narendra Modi, speaking on the final day of the BJP national executive meet at Bhubaneswar, Prime Minister Narendra raised the issue of triple talaq. Modi said if an unfair practice is being followed anywhere, it needs to be addressed. Triple talaq causing difficulties for Muslim women, he is reported to have said.

Now the the seminars would be organised from August 25 to September 20 in all districts and regional meetings for its preparations will begin from August 6, he added.

Irony of ironies, the party is trying to claim credit for the entire legal effort, led by individual Muslim women to get the practice of triple talaq declared unconstitutional.

Asked why his party decided to drop the planned seminars on triple talaq, Haider Abbas is reported to have said, “This was because there is no need to organise seminars on triple talaq now. It is expected that the Supreme Court judgment in the triple talaq case will favour the victims. BJP has fought the battle for the rights of Muslim women.”

In its manifesto for the UP Assembly polls, the BJP had promised to take up the triple talaq matter. After the win, BJP leaders had claimed Muslim women had backed them as the party was opposed to the practice. Now, Haider clarified that the UP election was held on the agenda of development and hence the party will speak on such issues only. “We have to change the anti-BJP perception that opposition parties have created among Muslims,” he said.

Asked what steps the Yogi Adityanath government took to meet its poll promise on triple talaq, Haider replied he was not aware about it.

After coming to power, BJP government planned to start collecting opinion of women on the issue. On April 11, the chief minister, in a meeting with women welfare department, had directed them to draw up a mechanism and asked the minister concerned and other women ministers of the government to meet women organisations and collect opinion of the Muslim women. However, citing absence of legal sanctity for it and lack of time, the exercise was discontinued.

The state government later announced to forward around 200 complaints from aggrieved women, who had allegedly been harassed by their husbands following triple talaq practice, to the Supreme Court, where the case was being heard.

An official in UP Women Welfare department said, “As the state government is not a party in the case, we had held meetings with Muslim women groups, received representations against triple talaq and submitted them to Government of India which is a party in the case.”

It is clear that now that election season is over, the BJP leadership feels more comfortable dealing.
 

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Among his brilliant multi-faceted contributions to the building of a secular democratic India was his understanding of and his work against the subjugation of women in India. He drew its links with the system of Chaturvarna and stressed the urgent need for reform within Hindu laws. He had said during the course of the discussion on the Hindu Code Bill, "Whatever else Hindu society may adopt, it will never give up its social structures (chaturvarna) for the enslavement of the shudra and the enslavement of women. It is for this reason that law must now come to their rescue in order that society may move on."

It was he as Law Minister in the Nehru cabinet who was tasked with piloting the Hindu reform laws through parliament. This was very soon after he had completed the Herculean task of getting the Constitution of India finally adopted. 

He was attacked, reviled, abused by representatives of the Hindu orthodoxy in parliament in various political parties. At that time, even on the question of the limited reforms within Hindu laws suggested by Dr Ambedkar, the RSS and its ideologically affiliated leaders like Shyama Prasad Mukherjee, then a member of the Hindu Mahasabha, strongly opposed the reforms and also made vicious personal attacks against Ambedkar. They were in the company of many top-ranking leaders of the Congress including then President of India Rajendra Prasad and then Minister for Home Affairs, Shri Vallabhbhai Patel and others. They were also in the company of Muslim fundamentalists, some of whom, like Naziruddin Ahmed, took the lead in strongly opposing the Bill, proving once again the truth that whether Hindu or Muslim, fundamentalists and their retrograde views have everything in common, are two sides of the same coin. 

It is worth revisiting the debates of the time because there are so many aspects that resonate through the years relevant to this day and time.

The "hot" topic of discussion today, as far as women's equal rights are concerned, is the issue of Muslim Personal law reform with particular reference to the ongoing case before the Supreme Court on the issue of instant and arbitrary triple talaq. The friends of yore, the Hindu and the Muslim fundamentalists who were united on the same side in their opposition to the Hindu law reform, are arraigned on opposite sides today. However, what remains unchanged and in fact similar to both sides, is that their positions for or against instant triple talaq are determined not out of concern for women's rights to equality, but by their own sectarian agendas. In the case of the RSS and company, it sees this as a step forward to the scrapping of Muslim Personal law altogether. As far as the Muslim fundamentalists are concerned, it is a case of protecting the most retrograde patriarchal practices in the name of religion.

Shamefully, other political parties have refused to take a firm position in support of Muslim women's demand for an end to this abhorrent practice, thus lending strength to the narrow agendas of both the RSS camp and that of the Muslim fundamentalists. A party like the Trinamool Congress has backed fundamentalists in the community, with their Muslim MPs taking the lead in slogans such as religion being in danger because of the proposed reform. The highly objectionable statements of the Muslim Personal Law Board, which are an affront to democratic rights of women, are taken to be representative of the community as a whole by these parties. In fact, many other Muslim institutions have condemned this practice but these opinions are ignored.

Such positions make women's rights hostage to political opportunism and affect women of all communities. Babasaheb had fought against such opportunism. He was equally forceful in his assertion that all practices have to be judged by the rights guaranteed by the constitution. 

The main narrative of the BJP-led central government is that Muslim women have been discriminated against because they have not had the benefit of reforms, whereas Hindu women have had this advantage. It is assumed that the reform in Hindu laws is complete. This is far from the truth. There are still significant discriminations against Hindu women such as in guardianship laws, in property rights with women still being lower in the hierarchy of coparcenaries eligible to inherit ancestral property, Hindu women being discriminated in the right to agricultural land and so on. However, such reforms are not on the government's agenda precisely because their interest is not women's rights

What is required is a step by step reform in all personal laws while also strengthening the framework of secular laws that apply to all women. This is the way forward to achieve equal rights for all women within communities and also between communities.

But equally important to the promulgation of laws are their implementation. In the course of the debate on Hindu law reform, the issue of the implementation of the Sharda Act, which prohibits child marriage, came up. It was the contention of many of the anti-reform speakers that when the community did not accept a law, it was impossible to get it implemented. An example given was the non-implementation of the law against child marriages as it was held that this was in consonance with Hindu tradition.

This was enunciated earlier by the RSS Sarsanghchalak, Shri Golwalkar. In an interview given to the press in Nangal, Punjab in March, 1950, the text of which is reported on the website in his name, he expressed his opposition to the Sharda Act on grounds that it was not being implemented. In answer to a question on whether it proved beneficial, he said "Did it?..Many things spring up in society as necessity arises" and then went on to defend polygamy among Hindus, saying, "Weavers near Nagpur require hands to work for them, but cannot afford paid workers. Hence they feel polygamy is necessity for them." Later in the debate, those members of parliament allied to his ideology took the same position, opposing monogamy as the norm in the reformed Hindu laws.

At present, one of the most non-implemented laws is the Dowry Prohibition Act, even as dowry practices are rampant. It is mainly Hindu women who are victims of what are known as "dowry deaths." Often, cultural practices and traditions prevent women from walking out of a violent situation. The practice of Kanya Daan, an essential ritual in Hindu marriages, symbolizes the break expected from the young bride with her natal family. She is now the property of her husband and in laws, having been gifted to them. In fact, it is a most cruel tradition which breaks a girl's heart. She is expected to bear the torture and violence she may face, as she would otherwise be a burden to her family having broken the tradition of the Daan. 

In the last ten years, according to the National Crimes Research Bureau, there have been on average 8,000 dowry deaths every year. Dowry death is defined by Sec 304 b of the Indian Penal Code as " Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called 'dowry death', and such husband or relative shall be deemed to have caused her death."

By religion, most of the 80,000 victims were Hindu women. Did a single Hindutva organization, now so vocal on the issue of Muslim women's rights, ever protest, ever campaign, ever come out against this barbarity? On the contrary, these organisations have been campaigning for dilution of the laws against domestic violence, describing them as a western concept against the ethos of "Hindu culture."

The evil practice of dowry has also spread to the Muslim community. Women's organisations running legal aid cells in areas inhabited by Muslims have ample evidence of the violence Muslim women face as a result of unfulfilled dowry demands. The Muslim Personal Law Board and other such organisations are well aware of this reality. Have they declared it to be against religion? Have they ever said such practices endanger their religion? On the contrary, women have rarely found any support from them on such issues. 

It was this kind of hypocrisy that Ambedkar fought. When we remember him today, it is also important to take lessons from his courage to fight all kinds of fundamentalisms that threaten to overwhelm his legacy.

Brinda Karat is a Politburo member of the CPI(M) and a former Member of the Rajya Sabha. The article appeared on Ndtv.com and is being reproduced with the permission of the author. The original may be read here.

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