Triple talaq: How Supreme Court could have denied Muslim women the 'historic verdict'

Was the point of the case tradition or constitutionality?

 |  It Could Happen to You  |  3-minute read |   22-08-2017
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The battle to ban the system that requires just three words to grant India’s Muslim men instant divorce, has ended — at least, legally. The Supreme Court verdict has passed the ball to the Executive.

After six months, policymakers will have to bring in a law and make triple talaq null and void. Expect some politics to play out once again (especially, if you remember how triple talaq had become a campaign theme before the UP elections, or how Prime Minister Narendra Modi picked it up in his Independence Day speech.)

The squirm

But, right now, beyond all the chest-thumping against the “barbaric medieval practice,” beyond all the television grabs showing burqa-clad Muslim women giving the “V” for victory sign, a few things fail to quell a sense of disquiet.

First, that the verdict was split. Second, that the Supreme Court called for a six-month bar. Third, that the outgoing Chief Justice of India JS Khehar and brother judge Abdul Nazeer took a pro-triple talaq stand.

The Supreme Court tried to signal its religious neutrality by forming a five-judge Constitution bench for the day-to-day hearing of the seven triple talaq petitions, challenging the practice: Chief Justice Khehar (Sikh), Justice Kurian Joseph (Christian), Justice Rohinton Nariman (Parsee), Justice UU Lalit (Hindu) and Justice S Abdul Nazeer (Muslim). Was it really necessary?

talaqsmal_0519170911_082217041515.jpgCan laws of the past govern laws of the future?

But how necessary was that? Don’t we trust the Supreme Court to be above all bias, whatever be the religion of the judges?

And then came the split verdict, as CJI Khehar and Justice Nazeer upheld triple talaq, while Justices Nariman, Lalit and Joseph found it unconstitutional. CJI Khehar and Justice Nazeer observed that triple talaq was a 1,000-year-old practice among Sunni Muslims and could not be struck down, unless Parliament framed a law.

Was the point of the case tradition or constitutionality? Shayara Bano, the prime petitioner, had challenged the constitutionality of triple talaq. So had the members of the Bharatiya Muslim Mahila Andolan, supported by more than 50,000 signatures of Muslim women.

Had tradition been the point, could India ever get rid of the Sati Pratha? Could daughters get any claim over their father’s property? Or women get the right to enter temples that allowed only men for centuries?

Can laws of the past govern laws of the future?

Yet another inexplicable clause: CJI Khehar and Justice Nazeer favoured to keep on hold the practice of triple talaq for six months. They asked the political parties to set aside their differences and help the Centre in coming out with a legislation within six months. If they don’t, the injunction on triple talaq will continue. The judges (minority verdict) also expressed the “hope” that the legislation would take into account concerns of Muslim bodies and the Sharia.

That raises serious questions about the Supreme Court’s intention and courage. Does the six-month window not open up the issue once again to the same legal landmine and intense warfare — between the conservatives and progressives, between the mullahs and victims — that took place before it came to the court?

Why does the Supreme Court have to think of administrative procedures and not just deliver justice as the Constitution assures?

Triple talaq is irrelevant in modern, independent India precisely because the private lives of women (or anyone, for that matter) cannot stay trapped in arbitrary restraints and archaic customs, that relegate them to inferiority.

What is now being called a “historic verdict” could have gone all topsy-turvy, if only one more judge had supported the past over the present.

Also read - Not just triple talaq: It’s time to keep all bizarre personal laws out of our private lives

Writer

Damayanti Datta Damayanti Datta @dattadamayanti

The writer is Executive Editor, India Today.

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