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Triple Talaq verdict: Effect on Muslim politics in India
The recent 3:2 split SC judgment on the constitutional validity of practice of instant triple talaq or talaq-e-bidat — practiced mostly among Sunni Hanfi Muslims, the largest Muslim group in South Asia, including India — has brought back the issue of reform among Indian Muslims in the public domain. The majority judgment carried the day, notwithstanding the fact that a greater force of argument, logical consistency and exposition of materials lies with the minority opinion in the judgment. The SC verdict struck down the triple talaq, contained in Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937, as “invalid” and “null and void” on two grounds. First, it is un-Islamic as it denies the Quranic provision of reconciliation before final divorce; and second, it is in contravention of Constitutional Articles 14 and 15 to an extent that the Muslim Personal Law (Shariat) Application Act, 1937, constitutes a “Statute” and thus subject to consideration of judicial review (Art 32).
The preceding days before the judgment witnessed the lively debate across the religious-conservative, religious-modernist, liberal-modernist, feminist-Islamic, secular, and Government-led right-wing Hindutva viewpoints. The dominant religious-conservative voice among Muslim communities — represented by Jammat Ulema Hind (JUH) and All India Muslim Personal Law Board (AIMPLB) — itself considers the practice of instant triple talaq as “sinful but lawful”and kept the door open for socio-religious reform from within but without interference from state institutions. Thus their argument helped in evolving the national consensus to mitigate the woes of Muslim women arising out of the practice of instant triple talaq, notwithstanding the very low occurrence of divorce among Muslim community compared to other socio-religious communities.
As such the difference between the Islamic religious conservative and modernist — both Islamic and non-Islamic — does not lie on the necessity of engendering the Islamic practices, rather they differ over the instrumentalities/agencies to carry out such reformist measures. The liberal-modernist voices and the Government of the day forcefully argued in favour of banning the practice of instant triple talaq by the court on account of supremacy of the Constitution over customary or other laws, principle of gender equality and justice and abolition of this practice in many Muslim countries, including Pakistan and Bangladesh. The Islamic religious-conservative forces cautioned the Government from interfering in the domain of personal law and appealed for adhering to age-old governing norms, which takes into account principle of legal pluralism.
The spilt judgment in part highlighted this difference of approach in addressing this issue. The minority opinion in the verdict broadly adheres to the governing framework of legal pluralism and political culture of “non-imposition” on religious minorities in matter of personal affairs. As such it considered the practice of instant triple talaq as integral part of Islamic practice and faith, ruled out the judicial arena as “originator” of reform, refused to consider the Shariat Act 1937 as “Statute” and hence beyond the jurisdiction of Art 32 and called upon the Government to frame the law within the period of six months, during which the practice of instant triple talaq would be put on hold, as all socio-religious reforms within and outside India have been carried out through field of legislation. It further asked JUH and AIMPLB to make an optional provision within the nikahnama giving right to brides to accept or reject the instant triple talaq mode of divorce, to which AIMPLB submitted an affidavit incorporating the said provision in nikhanama.
However, the majority verdict decided to outlaw the practice of instant triple talaq as “un-Islamic” and violative of Constitutional Articles of 14 and 15. The judgment itself is the result of widespread prevalent discourse that Muslim religious community and its religious leadership in the country is the most resistant, compared to other socio-religious communities, to any kind of modernising reform and therefore it is futile to expect any gender justice reform from within. There is no doubt that to a large extent the community itself is to be blamed for constructing a “non-reformist image”, given its history of opposition and a very slow adaptation to modernisation, particularly to secular education, within and outside India. Their concern to “preserve Islam in sterile form” first by denying education to Muslim girls and secluding them from “outside influence”, and later by reluctantly allowing them to have access to secular education within the “Muslim environment” — led to wide public perception across the globe that Islamic traditions are the most inherently inimical and discriminatory to the women. The JUH and AIMPLB’s stringent opposition to past Government’s attempt to bring “legislative reform” in the field of “Muslim personal law”, which has increased in recent years to the extent of opposing to SC’s right to interpret the Shariat Law as witnessed during Shah Bano case (1984-1985) only reinforced the “non-reformist, non-progressive Muslim image” in the public domain.
However, it may be emphasised that Islamic provisions concerning marriage, divorce and inheritance is far more gender friendly, liberal and modern, compared to other religious traditions. Unlike other religious traditions that treat marriage sacramental and deny the option of exit, Islamic traditions duly recognise the “principle of individual autonomy and consent” for contracting and breaking up the conjugal life. While it is true that in everyday life, Muslim women suffer from the fear of the provision of the instant triple talaq and to this extent the judgment is liberating; however it has an implication for denying the option to Muslim women to opt out of relationship in one go by the provision of Khula without necessarily undergoing the humiliating stages of triple talaq and living together in unwanted relationship.
Muslims’ response to the judgment has been mixed one. While JUH and AIMPLB welcomed the SC verdict treating personal laws as equivalent to Fundamental Rights and hence worthy of judicial protection, they expressed a great deal of reservation, concern and displeasure, if not outright rejection and opposition to the majority judgment’s declaration of practice of the instant triple talaq as un-Islamic and thus not a part of Islamic Shariat as well as to court’s right to interpret sources of Shariat law. In all likelihood, the Muslim religious and political leadership would neither repeat the “mobilisational politics” of the Shah Bano case witnessed during the mid 1980s, nor would file an review petition for the reconsideration of judgment, partly due to three specific reasons: (a) fear of counter Hindu mobilisation given the changed national political context, (b) the political landscape within the country has moved from “majority rule” to “majoritarianism”, which has an implication in squeezing the manoeuvring capacity of minority politics. and (C) they themselves are inclined to introduce reform in this field.
However, notwithstanding the circumspect and muted response of the leading Muslim political actors and organisations, the judgment’s interference with the domain of personal law has been seen as a part of current ongoing “Hindutava bashing against Muslims”, which will have serious implication for strengthening the conservative and fundamentalist/Islamicist voices among the Muslim communities. Seen in the context of global demonisation of Islam, the growing Wahhabi-Salfilisation of Islam and everyday increasing violence against Muslims in the domestic context of rising Hindu nationalism in conjunction with “silence” of the Government on such violence, the SC judgment is likely to strengthen the growing perception among a section of the Muslim youth that “Islam is now under threat” in India and therefore might contribute to the process of radicalisation and militancy among them. It might be noted here that several credible studies on terrorism has identified “sense of religious marginalisation” an important contributory factor for this ominous development.
The radicalisation and militancy did take place among a section of the Muslim youth following the demolition of Babri Masjid (1993) and Gujarat riots (2002), but fizzled out soon not on account on Government’s muscular policies or decline in support of Pakistan but due to the fact that the predominant section of the Muslim community did not share their perception that “Islam is under threat” in India. Notwithstanding their social, political and economic marginalisation in Indian society, Indian Muslims never perceived the Indian state and Government as working against Islamic faith. With this SC verdict in conjunction with a series of anti-Muslim violence and Governmental measures and national demand for Uniform Civil Code, “the internal comfort and confidence to practice Islam without fear” has been jolted, if not completely shattered.
It would have been far better and prudent on the part of the Government to introduce reform through the instrument of legislation, the legitimate field of such exercise, in consultation and with participation of Muslim communities, as visualised in the minority judgment, so as to make the process of reform more credible, legitimate and acceptable in the communities. Injecting reform through any other external agencies, such as this court verdict or previous High Court judgment (2002), has potential to be seen as “imposition” in the minority community and less credible and legitimate and thus defeats the very purpose of such exercise. The Government’s reluctance to bring legislation in this field only indicate its true intent: its intervention was/is less about women rights and gender equality and justice and more about harvesting the political capital in terms of expanding and consolidating its “Hindu vote bank” by keeping the issue open in the public domain and giving impression and being seen that the Government is working against or at least has stopped appeasing the Muslim community, unlike the non-BJP Government in the past!
(Prof Anwar Alam is Senior Fellow, Policy Perspectives Foundation, New Delhi)
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