The triple talaq judgement pronounced by the Constitution bench of five judges of the Supreme Court of India has been hailed as “historic” by all concerned. While the operative part of the elaborate ruling comprising of three different and diverse judicial opinions captured in 395 pages is just one line: “By a majority of 3:2 verdict the practice of talaq-e-biddat – triple talaq is set aside”, it provides sufficient scope for diverse ideologies to lay a claim to it.
It is understandable that Muslim women who have suffered the indignity of triple talaq (or instant divorce by saying the word “talaq” three times) and those who helped them to approach the court are rejoicing because the judgement is a clear victory to the position espoused by them: that the Supreme Court must declare the practice of instant and arbitrary triple talaq as invalid.
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However, the judgement itself is not path-breaking, as there was an earlier ruling in 2002 which held that triple talaq is invalid and it has been followed by several High Courts. Since there was no media hype back then as the one we are witnessing today, the 2002 judgement was overlooked by women’s groups and individual women. But an astute lawyer could have used it to bring respite to victims of triple talaq.
The opposing faction, i.e. members of the All Indian Muslim Personal Law Board (AIMPLB) who argued that the government should not interfere with the right of minorities to their tradition, culture, belief, and faith are also rejoicing since Chief Justice Jagdish Singh Khehar (concurred by Justice S Abdul Nazeer) declared that personal laws are an integral part of the freedom of religion guaranteed under Articles 25-26 of the Indian Constitution, which the courts are duty-bound to protect.
On the other hand secular women’s groups are rejoicing on the ground that the judgement pronounced by Justice Rohinton Fali Nariman (for himself and Justice Uday U Lalit) has struck down triple talaq as unconstitutional and has given a boost to the view that family laws must be state governed and gender just distanced from any religious ideology. However, the verdict of Justice Nariman is in the minority as the crisp 27-page verdict delivered by Justice Kurian Joseph dissented from it. It is his verdict that helped to clinch the issue and maintain the delicate balance between striking down triple talaq and securing freedom of religion.
The challenge to patriarchal monopoly has been transformed into a minority bashing exercise by BJP supporters who claim that it is the support of Prime Minister Narendra Modi to the cause of Muslim women's rights which gave the Supreme Court the courage to pronounce a clear verdict against triple talaq.
Even while declaring triple talaq invalid, Justice Joseph preferred to stay within the confines of Islamic law and examined whether instant triple talaq forms an essential core religious practice. Since a 2002 judgement had already declared instant triple talaq invalid, he had no hesitation in concluding that triple talaq is not an essential core of Islamic law in India and hence declared it invalid. So this became the majority view only to the extent of holding it invalid.
On the other hand, he also concurred with Chief Justice Khehar and Justice Nazeer that personal laws of minorities are protected by the Constitution as fundamental rights, which helped to make this a majority view, a clear statement against the enactment of a uniform civil code, contained in Article 44, which is a mere directive principle of state policy.
A minority-bashing exercise
However, the Hindu majority has projected this carefully crafted and delicately poised judgement as an anti-Muslim verdict and a clear signal to bring in a uniform civil code, a demand which has been on the radar of the ruling Bharatiya Janata Party (BJP) as a whip with which to beat the Muslim community.
The challenge to patriarchal monopoly has been transformed into a minority-bashing exercise by BJP supporters who claim that it was the support of Prime Minister Narendra Modi to the cause of Muslim women’s rights that gave the Supreme Court the courage to pronounce a clear verdict against triple talaq.
The right wing Muslim bashing politicians were quick to express their views. The Chief Minister of Uttar Pradesh, Yogi Adityanath, known for his anti-Muslim views, wasted no time in welcoming the judgement. Calling for an end to the Muslim practice of triple talaq, the chief minister also advocated the enactment of uniform civil code. Another Hindu extreme-right outfit Vishwa Hindu Parishad (VHP) attacked the AIMPLB on triple talaq, saying the Islamic body was not ready to give equal rights to women, whom they treat as an “object”.
VHP’s international working president, Pravin Togadia, said in a statement that the government should enact a law against triple talaq to ensure justice for Muslim women and for the nation’s taxpayers. A law should also be drafted for banning more than two children and ushering in the common civil code.
Public lynching of Muslims
While the issue of triple talaq has received wide publicity from the right-wing politicians, there has been a marked silence on a corresponding issue affecting the Muslim community – that of public lynching of Muslims. Even though Prime Minister Modi in his address to the nation from the Red Fort mentioned the issue of Muslim women and triple talaq, there was a total silence on the issue of public lynching of Muslims.
The lynching of Muslims on the mere suspicion of slaughtering cows, storing beef or merely because they “look Muslim” has gone on unabated and reached a new low with the stabbing of 16-year-old Junaid Khan on June 23.
At the same time, the government is today poised to introduce a new “gender just” law to replace the Muslim Personal Law based on Islamic law – in the name of saving Muslim women from the tyranny of their archaic laws. The words uttered by an important minister in the Modi government, Mr Venkaiah Naidu (now vice president of India) on May 20, the day after the Supreme Court hearing on triple talaq concluded, are revealing: “It is for the society to take up the issue and it will be good if the [Muslim] society itself changed the practice. Otherwise, a situation may arise where the government will have to bring in a legislation [banning triple talaq]”.
The government was not trying to “interfere” with personal matters but was only trying to ensure justice to all women and equality before the law, he added. Coming in the wake of the lynching of Muslims, the assurance sounds hollow.
The issue of Muslim bashing has another curious implication in the “Love Jihad” bogey which gets whipped up during election campaigns. Far-right Hindu groups allege that “Love Jihad” is a conspiracy by Muslim groups to lure Hindu women into marriages with Muslim men and to convert them to Islam. They encourage parents of Hindu girls to file cases against their daughters’ Muslim boyfriends.
The recent judgement of the Kerala High Court in the case of a 24-year-old Hindu girl who had converted to Islam and had married a Muslim is a cause for concern. The High Court held that the girl, under the influence of her Muslim husband, was not in a state to give free consent to the marriage. And further, the ruling declared that the consent of parents and their presence during the marriage is crucial. When the husband approached the Supreme Court against this ruling, it rejected the plea that the girl should give evidence in court and instead directed that the case should be investigated by the National Investigation Agency (NIA) to explore whether it is a ploy by an Islamic terrorist organisation to convert Hindu women.
Strangely “Love Jihad” and “uniform civil code” make contradictory claims yet both are being used within a majoritarian public discourse to attack the Muslim community.
The flip side of this discourse is that the myriad ways in which the rights of Hindu women are violated including child marriage, the plight of widows and gruesome violence due to dowry demands are all being made invisible.
Flavia Agnes is a feminist legal scholar and women’s rights lawyer. She is the founder of Majlis, an NGO based in Mumbai which provides legal advocacy and support to women and children of all communities.
The views expressed in this article are the author’s own and do not necessarily reflect Al Jazeera’s editorial policy.