By Apoorva Sripathi
Mark your calendars — August 22, 2017, is the day Muslim women in India scored a major legal victory, one they won in the teeth of widespread opposition. In a historic judgment, the Supreme Court struck down instant triple talaq (Talaq-e-Biddat) calling it unconstitutional and in violation of Article 14 of the Constitution, which provides for equality before law and “equal protection within the territory of India and prohibits discrimination on grounds of religion, race, caste, sex or place of birth, or any of them.” Almost simultaneously, the campaigners have had to mark a new date on the calendar. Six months down the line, everything will be up for grabs again. Or will it? And what is the road ahead for the campaigners?
First, a recap. The five-member SC bench was divided on this matter, but the majority verdict (3-2) held illegal, the much reviled practice of instant triple talaq, which allows a husband to divorce his wife by simply uttering “talaq” thrice. Justices Kurian Joseph, RF Nariman and UU Lalit said that the practice was “manifestly arbitrary and violative of the Constitution”. India will now join countries like Pakistan and Bangladesh that have either implicitly or explicitly abolished the practice.
In a minority verdict, Chief Justice JS Khehar and Justice S Abdul Nazeer wanted to put triple talaq on hold for six months till the government made a law on this. And the Centre so far has indicated that there will be no new law to check the practice of triple talaq: According to a News18 report, the government is considering making amendments to the Muslim Personal Law, but is not really keen on passing legislation.
What does this six-month stay mean? “It’s [the six month stay recommended by Khehar and Nazeer] a minority judgment, you can ignore it completely,” says Alok Prasanna Kumar, a constitutional expert, throwing clarity on the judgment. “It means nothing because the minority judgment is ridiculous and contradicts itself — it talks about how talaq is right and then immediately says ‘let’s stay it for the foreseeable future’. It makes no sense. Even if a law isn’t passed, it’ll [the judgment] continue.”
Karuna Nundy, a Supreme Court advocate, too clears the legal fog. “People are very confused; the first judgment is the CJI’s judgment which is in a minority on the proposition that parliament should pass legislation. So that is not something that stands. The other two judgments — the majority — require that triple talaq be set aside.”
The government not being keen on passing legislation, isn’t something to worry about, adds Kumar because “what the SC has said is enforceable. The law which already stands has been read to mean you can’t enforce the divorce on the basis of triple talaq.”
It has been a long haul for the campaigners. Since it was set up in 2007, the Muslim women’s rights group, Bharatiya Muslim Mahila Andolan (BMMA), have been fighting to get rid of triple talaq. In 2012, they took it up as a campaign and in 2016, collected 50,000 signatures in support of the demand asking for an end to this practice and to also work towards a swift codification of Islamic law. Today, along for Shayara Bano, whose husband of 15 years sent her a letter with talaq written thrice and left her, and for her fellow petitioners Ishrat Jahan, Gulshan Parween, Aafreen Rehman and Atiya Sabri, their fight has borne great fruit.
“[The verdict is] a huge relief for Muslim women. It also needs to be seen how this is going to be implemented. The fact that triple talaq has been declared as unconstitutional — that is very, very crucial. It’s affirming the citizens the rights of Muslim women and affirming their fundamental right according to the Constitution,” says Noorjehan Safia Niaz, the co-founder of the BMMA, who along with Zakia Soman has been instrumental in fighting for the change.
Niaz says that BMMA has been working on a Muslim family draft law for years now (it took them 8 years) and looking forward, the SC has also given a direction for the Parliament to take up legislation on this issue. Mariya Salim, a women’s rights activist, a researcher and a member of the BMMA, says now the verdict has to be taken to the masses and people have to be informed that instant triple talaq is not just against the Constitution but also against Quranic injunction. “We’ll give them the facts that instant triple talaq has gone and the correct method of divorce [talaq al-ahsan] has to be followed. And, of course, the larger fight for social reform — polygamy and nikah halala (where the the woman needs to get remarried, consummate the second marriage, get divorced, observe the iddat period and then come back to her original husband) — needs to be addressed.”
Obviously the next coming months look very different for the All India Muslim Personal Law Board (AIMPLB), the highly influential NGO, which has customarily enjoyed the biggest voice in Muslim personal law debates. Until BMMA and other women’s groups upset the apple cart. The AIMPLB has gone back and forth in this issue. It opposed the move to ban triple talaq and polygamy and in 2016, filed an affidavit to the SC saying women lacked power and were incapable of making good decisions. Back then the affidavit had exasperated Hasina Khan, the founder of Bebaak Collective, a powerful umbrella of Muslim women’s groups, to tell The Ladies Finger, “What about those women who stand for elections or our constitutional and fundamental rights that allow us to vote? Are we completely stupid that we cannot make decisions for ourselves?”
In April 2017, the AIMPLB argued that Muslim personal law permitted triple talaq though it was a sin and also called for the social boycott of instant triple talaq.
Today, they call the SC verdict a victory for personal laws. AIMPLB member Kamal Faruqui says that the verdict guarantees personal laws as put forth by Article 25 of the Indian constitution, a fundamental right for people to practice their religion peacefully. “As far as triple talaq being rejected, our view is that the whole decision has been taken in a way that it may open up several other important issues which is our worry, like the Shariat Application Act of 1937 [Muslim Personal Law]. This is a disturbing feature.”
As far as instant triple talaq is concerned, Faruqui says, the AIMPLB has been making it “difficult for the people to pronounce it and have gone to the extent of advising that there could be a provision in the nikahnama individually and the qazi can bring in provision that it won’t be pronounced. We are nobody to delete it from the Constitution and from Shariat,” he says.
Several news reports have quoted the women’s wing of the AIMPLB terming the judgment as fractured and contradictory. When asked about their immediate plans around the verdict, Faruqui gets defensive. “Frankly speaking, even if I have any plans, I will not be sharing with you. This is such an important, crucial issue — not that we are going to do something. Right now we are happy that one point of view has been accepted, that the personal laws are governed by Constitution. That is it. We have nothing to say about any other thing.”
Kumar hopes that the campaigners and those working for the rights of Muslim women use the momentum of this verdict to come up with a law that reforms Muslim personal law as a whole. “Put everything down in words, a law passed by Parliament can always be tested on constitutionality at a later time. Put down whatever you feel are the progressive parts of Islamic law. It should be seen as a great opportunity to reform Islamic personal law in India.”
For Muslim women, the initial battle has been fought but the war still remains — they still have to go to courts, employ the Domestic Violence Act and other remedies to get justice. Maybe this is what the campaigners should focus on at the moment: Educating and building awareness that despite a judgment, instant triple talaq can still take place. It’s also the attitudes that need changing.
Former additional solicitor general of India and Supreme Court advocate Indira Jaising says there are difficult times ahead for those who worked on banning triple talaq. “On the one hand, the AIMPLB will see how the judgment can be undone. On the other hand, the government will worry about the political fall out. They [the campaigners and community leaders] will have to be very violent and focus on their demands,” she says.
Nundy says the onus shouldn’t be on the petitioners, who with limited resources have achieved a massive victory. “The AIMPLB has been gracious in defeat. It’s clear now though, that the BMMA and some of the other petitioners also lead the community. The AIMPLB had already proposed a model nikahnama for qazis and maulvis. The petitioners and other leaders of the community could perhaps ensure that model nikahnamas are widely adopted and lay down terms that are just and equal far beyond the mode of talaq.”
The verdict has created a wave of palpable excitement in the country and rightly so. It’s a victory for Muslim women (and women in general) who have been struggling for reforms from within their community and demanding an equal seat at the table. It’s an inspiring victory for gender justice, for those facing violence at home, for those trying to break the shackles of patriarchal norms and for those challenging status quo day in and day out.
Co-published with Firstpost.
This piece has been updated to include Indira Jaising’s comment.