Liberté Egalité Sororité

It’s a wrong righted, unambiguously. But the SC is status quoist on personal law.
Liberté Egalité Sororité
Liberté Egalité Sororité
outlookindia.com
2017-08-26T11:25:19+0530

‘Historic’ is a word that gets tossed about too often when it comes to legal verdicts. But here it would be quite apt, tangled up as the issue was in a long timeline of debates over the uneasy fit bet­ween the modern Consti­tution and the place for older ‘personal laws’ within it. The Supreme Court’s majority decision holding the pronoun­cement of triple talaq in one sitting as illegal has been a hard-won victory. The activists and petitioners who had sou­ght the end of the practice are jubilant that it has been recognised as a form of cruelty and shown the door. In the public mind, justice for Muslim women is now also etched into an arc that begins from Shah Bano and ends with Shayara Bano.

Shayara from Kashipur, Uttarakhand, is the unquestioned hero of this moment. A mother of two who was unilaterally div­orced, she mounted a legal challenge on the constitutional sanctity of instant triple talaq—or talaq-e-biddat—last summer. Shah Bano is her alter ego from the 1980s, a woman who had sought alimony after being similarly divorced. While the courts had delivered justice to Shah Bano as well, the political dispensation had snatched it from her by legislating against it—one of the black spots on it the Congress has been unable to erase.

“Even I did not expect when I approached the court that my case would become such a big issue,” says Shayara. The judgement is one she welcomes selflessly, for it cannot alter her personal situation—nor does she seek restitution with her ex-husband. “I wish only for my financial indep­endence now,” says the 35-year-old, who is currently pursuing an MBA. “My husband has remarried and I don’t want to be with him. I’m happy women will never face instant talaq again. When I was divo­rced, I felt my life was ruined, but I had no legal recourse.” This, Shayara hopes, will not happen to the next generation of girls. “They will not be cruelly discarded over SMS, phone or e-mail,” she says.

In the public mind, ­justice for Muslim women is now also an arc that ­begins from Shah Bano and ends with Shayara Bano.

The fascinating part is that all five judges on the constitutional bench have found instant talaq a reprehe­nsible practice. That said, they arrived at three separate verdicts, each through very different arguments. This resulted in a split 3:2 verdict, where the majority even found it un-Islamic. This put away the practice by a hair’s breadth, a milestone moment, regardless of the debate on the extent of its prevalence—some surveys claim talaq-­e-biddat added up to only 0.3 per cent of divorces within Muslims.

Here’s how the legal scrutiny unfolded. First, the judges tested instant talaq against the Constitution. If it were found to be protected within the ‘freedom of conscience’ (or space for religion-sanctioned actions) guaranteed under Article 25—as Chief Justice Khehar Singh and Justice Abdul Nazeer did—there would be no possibility of judicial intervention. Separately, Justices Rohinton Nariman and Uday Lalit did not find instant talaq to be an “essential practice” of Islam. Justice Kurian Joseph felt it was against the Quran itself (hence his remark: “What is held to be bad in the Holy Quran cannot be good in Shariat”).

Justices Nariman and Lalit, who did not find instant talaq protected by Article 25, tested it next against Article 14—which grants the constitutional right to equality. Here, instant talaq fell apart for “arbitrariness”. Ultimately, therefore, two judges ruled that it’s unconstitutional because it falls afoul of Article 14. This has happened for the first time in a ruling on personal law, and activists are exulting about it. And it was the two who made up the min­ority judgment who asked the government to legislate—within six months—and overcome the bar under Article 25.

“The only debate...was about the ­consistence or otherwise of the practice of talaq-e-biddat with Islamic values.”
Justice J.S. Khehar, Chief Justice of India

Instant triple talaq, then, no longer holds the sanctity of law, but the question of its constitutionality is still open. This is because while instant talaq itself has been annulled by a 3:2 verdict, the supremacy of the Constitution over personal law has been upheld by only two justices. Hence, whether the Constitution has primacy over personal law does not appear to be fully settled by this judgement.

“The position of the All India Muslim Personal Law Board was that personal law cannot be tested on the touchstone of the Constitution. Justices Nariman and Lalit have ruled that it can be,” says Saif Mahmood, senior advocate, Sup­reme Court, and co-author of Intro­duction to Muslim Law, which is cited in the judgement. “How­ever, Justice Kurian has said the way in which instant divorce is practised militates against what Islam stands for. Thus, his verdict upholds Islamic jurisprudence, but holds the practice of INS­tant triple talaq illegal.”

“Instant talaq was not only (held) ultra vires of the Constitution, it was held to be not even part of the Quranic law, and more of a customary practice—customs don’t override Quranic law,” says Shabnam Lone, senior advocate, Supreme Court. “Pakistan did away with instant talaq 56 years ago, Bangladesh has rejected it. I wonder how the mullahs in India kept their hegemony over it…by striking on women with regressive customs that have no place in Muslim society.”

“...it is not appropriate to tender advice to the legislature to enact a law on an issue.... Unfortunately, the Union seeks at our hands what truly falls in its own.”
Justice Abdul Nazeer

The ruling is a blow to the AIMPLB, a self-appointed private body that claims to govern the field of Islamic law in India, which had opposed court intervention in the matter. Activists, on their part, see the judgment as a force that will kindle multiple challenges aga­inst many other prac­tices not in sync with gender justice.

“Now we are armed with this judgement,” says Zakia Soman, co-founder of Bharat­iya Muslim Mahila Andolan (BMMA), one of the petitioners in the case. “We now want a just and fair procedure laid down for divorce under the ehsaan procedure.” Talaq-e-ehsaan is a divorce under Islamic law that lasts over 90 days, its rules and norms giving the couple ample opportunity for reconciliation. The revocation of this divorce at any stage can be only at the instance of the man. “But we don’t want divorce to take 90 days just for the heck of it. It should be just in spirit. Women should have a say in the matter and get compensated,” says Soman.

The BMMA wants the rights of women within Islam to ask for divorce—khula (via the woman’s wish) and mubarat (by mutual consent)—to be popularised. It argues that since Muslim family laws are an unregulated space, only laid-down procedures can safeguard women’s interests. “Polygamy will be the next legal battle, as will age of marriage, women’s share in inheritance, divorce, custody and guardianship,” Soman says. “We’ve been working for the codification of Muslim law for years. We have a model ready since 2014,” says Noorjehan Safiya, BMMA founder. “The clerics have brainwashed the community so badly that many accept malpractices as part of religion—especially the men.”

“This form of talaq is manifestly arbitrary in...that a marital tie can be broken ­capriciously and whimsically by a Muslim man without any attempt to save it.”
Justice Uday Lalit

Divorce remains a contentious issue even after this judgement. There is a great diversity of marriage and divorce norms within Muslims, which is ano­ther challenge to reformists. Like all other Indian religions, Islam too is caught up in various layers of belief, identity and practice—that is why the activists supported instant talaq to be adjudicated upon in terms of the Constitution rather than the courts examining whether it is Quranic.

The comparative frame offers more food for thought. Even the right to div­orce among Hindus—a modern, refor­mist, pro-women step—came into being only as a result of legislation, not to speak of inh­eritance rights for Hindu women. “Not only is their implementation weak, the purview of laws for Hindu women remains patchy,” says Annie Raja, general secretary, National Federation of Indian Women. “Hindu Undivided Family rules are routinely used to deny women’s right to property. That’s why we very much welcome the judgement against instant talaq. Because we consider it an opportunity to ask the government to fight for all women’s rights—to move from just INS­tant talaq and Muslim personal law to gender-just laws for all women.”

Hasina Khan, founder of the Bebaak Collective, a women’s and minority rights body that was an intervenor in this case, says the terminal goal of activists is to challenge all practices that discriminate between genders. “Yet, when people say we have come from Shah Bano to Shayara Bano, as if nothing had happened in the interim, that just isn’t true,” she says.

“Since we have declared Section 2 of the 1937 (Shariat) Act void...on the...ground of being manifestly ­arbitrary, we find no need to go into ground of discrimination.”
Justice R. Nariman

Khan is referring to claims by senior BJP leaders that a new law would be fra­med to regulate divorce among Muslims. (The direction to legislate was in a minority ruling, but the government can always legislate regardless.) “We acti­vists didn’t approach the court just on this issue,” says Khan. “We’ve been doing it for very long. The groundwork for this judgement was laid out over decades—it hasn’t appe­ared as if by magic.” A law, if the governm­ent opts to frame one, must be transparent and conceptually clear, activists say. “It must seek out a variety of Muslim bodies and consider all views,” Khan says. “The Hindu Code Bill was discussed for five years, so how can they make this law in six months: that‘s the fear.”

“I’m very happy with the judgement,”  says Shabnam Hashmi, social activist and human rights campaigner. “My only concern is with the talk about six months to frame a new law. The government must avoid this temptation or it will open a Pandora’s Box. The Rajasthan Human Rights Commission head has verbally abused live-in couples and no political leader has asked to ban marital rape. So let us just not indulge in polarising and dividing the Muslims on these issues.”

The other contentious issue is the age of consent, which stands at 15 years for married Muslim women. (Recently, the Delhi High Court upheld this age as valid.) “We need to decide these issues—are we really okay with Muslim girls being married off at 15?” asks Soman.

“...and what is held to be bad in the Holy Quran cannot be good in Shariat and in that sense what is bad in ­theology is bad in law as well.”
Justice Kurian Joseph

This is an issue for Hindus as well. A rec­ent IndiaSpend survey based on census data finds there were 12 million married children below 10 years of age in 2011 (only 11.1 per cent of them Muslim). This is another example how, unless reformist ideas percolate down to the people, the purpose of legal reform is defeated. “The question is, who has the capacity to enf­orce the ban on instant triple talaq,” says Faizan Mustafa, vice-chancellor, NAL­SAR University of Law, Hyderabad. He also wonders how the judgement has substantially changed things, considering how the 2002 ruling in the Shamim Ara case had ruled against instant talaq as not adhering to underlying Islamic principles. “Had instant talaq been found to be in the Quran, it would have been upheld, so I do wonder what this ruling has properly achieved,” he says. The difference is one of scale in that this was a full constitutional bench that made a definite cut through the maze of issues.

Then come community organisations—the Jamiat Ulema-e-Hind has openly def­ied the Supreme Court’s judgement, saying it would encourage the practice. This stokes the concern that if a Muslim couple opts for instant talaq, and should they not approach the court, mer­ely pass­ing a law will not resolve a big part of this problem. But it’s the unilateral nature of it, and its implications on the woman’s emotional-financial security, that is the crux. “Muslim women do understand INS­tant talaq is an assault on their rights,” says Rehana Adib, an activist in Uttar Pradesh. “It’s religious ‘leaders’ and families who frighten them into submission.”

I’m concerned about the talk of framing a new law in six months. The government must avoid this temptation or it will open a ­Pandora’s Box.
Shabnam Hashmi, Social activist

“In the case of instant triple talaq, the Muslim woman is seen as hapless and lacking in agency, but when it comes to inter-religious marriages with Muslims, those are frowned upon—so there must be some consistency in the approach tow­ards women’s rights and issues,” says Manisha Sethi, who teaches at the Centre for the Study of Comparative Religions and Civilisations at Jamia Millia Islamia university, Delhi. According to Annie Raja, the practice was often hard even on the men. “We have come across so many cases where the man regrets his instant divorce, given on impulse or anger. It is very welcome to strike it down and move on to other gender justice issues that plague all women.”

Now we are armed with this judgement. We now want a just and fair procedure laid down for divorce under the ehsaan procedure.
Zakia Soman, Co-founder, BMMA

This lopsidedness came in for a mention in the Justice Rajindar Sachar Com­mittee report: in its third chapter, it spoke of how primacy is given to identity where Muslim women are concerned, relegating other aspects—income, jobs, nutrition, security, education—to obscurity. “Gen­der issues are also given a Muslim slant...the rules of marriage, right to divorce and maintenance have become benchmarks,” it says. The “obs­essive” focus on select cases of Muslim women abets this discriminatory gaze: Islam is blamed for gender injustice while the state is absolved.

This casts the much-deserved condemnation of instant talaq in a new light: where do the Indians celebrating this judgement each stand on the vast panorama that spans from liberal tolerance to rabid bigotry? The goal, it’s worth recalling, is to erase oppression of women in general—not to make instrumental use of one issue in a fraught ­political field.  


By Pragya Singh with Prachi Pinglay-Plumber in Mumbai and Naseer A. Ganai in Srinagar

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