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SEEMA MUSTAFA | 22 AUGUST, 2017

The BJP and Triple Talaq

SEEMA MUSTAFA


NEW DELHI: There is no doubt that much of the exuberance that the Muslim woman should have felt after the ruling by the Supreme Court today against triple talaq was dampened by concerns about the ‘gameplan’ of the BJP, and what it would mean to the community facing the brunt of communal angst, attacks and lynchings.

Any number of professional Muslim women spoken to expressed happiness about the courts move to curb this atrocious practice whereby the man could divorce his wife---even by email and Whatsapp now---by declaring talaq, talaq, talaq thrice. But almost the very next sentence was: what does this mean, will the BJP use it to badger the Muslims more, what is the point of giving women their due and lynching the men and so on, sentiments that reflected confusion and barely concealed anger at a ruling party that has done little to protect the minorities of India. In fact, the reverse.

A quick look at the lengthy Supreme Court judgement confirmed a sober approach, an almost scholarly 300 plus pages where the Islamic law, the Quran, the Constitutent Assembly debates were discussed along with the arguments of the petitioners on both sides. There was no wayward remark as that of “Adams ribs” in the Shahbano judgement of 1985 that had created a furore, but instead a sober recognition of arguments that led the majority judgement strike down the abhorrent practice of triple talaq.

However, the minority view of two as against three judges tried to close the possibility of further intervention by the state into the Muslim or for that matter other minority personal laws, by challenging these as ultra vires the Constitution of India. Instead the ruling made it clear that ‘talaq-e-biddat’ is not a matter of personal law, and is illegal. The minority view of the court was that it constitutes a matter of faith for the Sunni Muslims belonging to the Hannafi school, it has been practiced for 1400 years, and that it does not breach Article 25 of the Constitution. Instead being a component of personal law, it actually has the protection of Article 25 of the Indian Constitution.

The Supreme Court ruling basically declared instant divorce as unconstitutional, and ruled out the possibility of any legislation by Parliament as was suggested by two judges. It, however, seems to have kept its opinion limited to triple talaq, with Article 25 continuing to protect the personal laws as per the provisions of the Constitution of India. So it has basically placed the instant divorce practice outside the law, even as it continues to accept the argument and the legality of personal laws of all communities, in this case the Muslims, being kept under the protection of the Constitution.

The minority view was of the view that the personal law has the protection of Article 25 of the Constitution; that the Constitution extends this guarantee, because faith constitutes the religious consciousness, of the followers and the Constitution endeavours to protect and preserve, the beliefs of each of the separate entities, under Article 25; and that it does not breach any Article of the Constitution.

Interestingly the Supreme Court mentions the efforts of the Attorney General representing the government to convince the Bench to strike down the other two forms of divorce, and not just triple talaq, as unconstitutional. Two judges take the view that the court should not enter into this realm, “We have to be guarded, lest we find our conscience traversing into every nook and corner of religious practices, and ‘personal law’. Can a court, based on a righteous endeavour, declare that a matter of faith, be replaced – or be completely done away with?”

The two judges state that “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.”

In fact, quite apart from going along with the Attorney General the judges stated that “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. “

This ruling thus, while doing away with a practice that had rendered many Muslim women destitute and had women protesting on the streets, has actually protected the personal law, and while declaring triple talaq unconstitutional, has not brought the other provisions of the personal law into its ambit. It continues thus to be protected by Article 25.

Interestingly, both the BJP and the All India Muslim Personal Law Board see ‘victory’ in the ruling. Politically of course---as is evident from party president Amit Shah’s almost immediate statement of support for his Muslim sisters---the party has decided to take ownership of the ruling. And no doubt, there will be attempts to play the Prince Charming rescuing Muslim women from the terrible Muslim men. Finance Minister Arun Jaitley was also fielded to express satisfaction at the judgement. Prime Minister Narendra Modi tweeted this achievement as well, full of concern for the well being of the Muslim women.

The AIMPLB, in a statement expressed satisfaction that the majority ruling has given the personal law the status of a fundamental right to be protected under the right to practicse religion under Article 25. “This is a huge victory for us,” the statement says.

It is of some significance that the BJP does not seem to have gained what it had hoped for legally. And that the judges while divided on whether triple talaq should be held as unconstitutional at this stage, seem to be agreed that the personal laws are protected by the Indian Constitution. And at least two judges have actually warned against opening the personal laws practiced by the different religious communities into India for such a review.

Also after a long while and certainly in a scenario quite different from the Shahbano judgement days, both Muslim men and women seem to be on the same page on triple talaq. This was noted by the court itself, when the judges cited the conservative AIMPLB affidavit, noting that all sections had expressed reservations and total opposition to the practice of instant divorce. The Board, in its statement further confirmed this, saying that it was also of the view that triple talaq was not a good practice, and that it would be instructing the maulvis and the Qazis to develop a standard nikahnama (marriage document) whereby the two sides could agree to ensure that this instant divorce was not used by the man.

Just as both men and women of the community, and indeed India, are on the same page in condemning the communally engineered attacks on the minorities that have seen a spate of lynchings across the north Indian states. The Muslim women who the BJP is so busy embracing on this issue, are the mothers, wives and daughters of the men lynched by cow mobs across Haryana, Rajasthan, Chhatisgarh, Madhya Pradesh, Jharkhand and now Bihar.

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