Presenting an exclusive excerpt from Salman Khurshid’s book Visible Muslim, Invisible Citizen. (Rupa Publications).
The book is Salman Khurshid's attempt to place the Indian Muslim in a modern context, viewing the community against an environment of both an aggressive majoritarianism and multiple misconceptions — it explains Islam to those who do not know about it. And it presents crucial chapters of India's political history, including politics under the Congress which impacted Muslims deeply.
(Excerpted from Visible Muslim, Invisible Citizen by Salman Khurshid, published by Rupa Publications)
Triple talaq has come and gone, but the debate goes on. It is almost as though the case were just a peg to hang a larger agenda on. Most people did not miss the symbolism of a multifaith bench—a Sikh, a Christian, a Hindu, a Parsee and a Muslim. Curiously, they all agreed that triple talaq had no place in our world. The Chief Justice even observed that multitudes of Muslim women were clambering for justice, and then went on to appeal to political parties to show understanding. The channels celebrated as never before — one even offered jalebis to a diabetic clergyman not entirely happy with the outcome. Yet, for those celebrating the emancipation of Muslim women, it must have been irksome to see several of them rejoicing in burqas. When a carefully moderate law minister congratulated them, one even asked what he would now do to help her and her children. Gender justice and social justice obviously do not stop with the Supreme Court judgement. Oppression and hunger come from many causes and directions. It must be a sobering thought that there is much to be done.
Interestingly, besides agreeing on the need to end triple talaq, the five justices disagreed in many ways. The Chief Justice found triple talaq to unwholesome, yet part of the Hanafi school of Sunni law. “Bad in theology, good in law”, pronounced by the Privy Council, arrested the vast scholarship he expressed in his long judgement. So he took the cue from Islamic countries and proposed that the Parliament legislate to abolish triple talaq, and froze the ‘1,400-year-old practice’ for six months. To arrive at that conclusion, the Chief Justice leaned upon Article 25, which protects the Muslim personal law as a fundamental right. In this, Justice Kurian Joseph agreed with him, thus making that view a majority on the issue (the Chief Justice, Justice Nazeer and Justice Joseph). But he then went on to hold that triple talaq was not part of sharia and therefore without legal consequences. This approach was an endorsement of a series of high court judgements, including that of Justice Badar Ahmed (as he then was) in Masroor Ahmad and the Supreme Court itself in Shamim Ara.
In a sense, Justice Rohinton Nariman disagreed with both sides but provided the crucial majority with Justice Lalit and Justice Joseph in striking down triple talaq as violative of the fundamental rights chapter of the Constitution. In other words, His Lordship first read triple talaq into sharia and then struck it down for violation of Article 14. But, interestingly, Justice Nariman also noticed nikah as an ‘astonishingly modern’ concept, thus giving the self-proclaimed modernist lobby of UCC advocates something to think about.
The judgement has not entirely cleared the mist, though. Many votaries of the UCC see it as clearing the path for what one channel called ‘one nation, one law’. But then, have they overlooked on purpose the majority of three justices giving a clear verdict on the protection of the personal law? A UCC, although mandated by the Directive Principles of State Policy, would still need to pass muster as far as the fundamental rights chapter is concerned. Jurisprudence on fundamental rights is a seamless whole and any dent to any part of it will inevitably impact the rest. We made a mistake on civil liberty in the early years of our Independence by subjugating individual rights to the welfare of society in a utilitarian calculus.
The result was the fundamental rights judgement of the Emergency period that most of the present votaries of the UCC deprecate, and which indeed was regretted in later life by the justices who pronounced it. Furthermore, Justice Nariman’s observation on nikah should be a warning that the UCC will certainly not be a majoritarian version of what is desirable. For instance, not one person has ever ventured to explore whether a UCC would require that all funerals culminate in a similar manner, i.e. would everyone be cremated, buried or confined to the Tower of Silence? Furthermore, under the marriage provisions, would same-sex marriages be permitted, as indeed they now are in a growing number of countries across the globe? Modernism might not be as simple as some people make it out to be in order to promote petty political aspirations.
An interesting question was posed by my erudite colleague, Chidambaram, in a tweet after the judgement was delivered. He tweeted that only triple talaq (meaning the instantaneous, irrevocable form of talaq) has been declared unlawful and that other forms of talaq remain to be considered, being equally unilateral. The Attorney General had made similar arguments during the hearing in the Supreme Court. Then again, another colleague had been reported to have opined that the Parliament still had a role to play in implementing the judgement. These raise much bigger questions, far beyond triple talaq. Even the Supreme Court did not envisage going that far and simply indicated that nikah halala and polygamy should be considered by another bench in due course. But why the concept of talaq does not suffer from the mischief of triple talaq is to be found in the remarkably erudite exposition of sharia by the Chief Justice.
As to the intervention of the Parliament, it is surprising that a matter the majority of the Supreme Court steers clear of, not because it finds it expedient and appropriate but because it did not see the jurisprudential grounds for passing the buck to the Parliament, should yet be assumed by some persons to have given a signal to the Parliament to proceed. Thus, any attempt by the Parliament to venture into this area will inevitably come back to the Supreme Court, where a later generation of judges will have to look for guidance in the present judgement of the Constitution bench. Hopefully, the myopic concession of the AIMPLB—that although the court cannot interfere in the matter, the Parliament can legislate to obliterate a ‘1400-year- old matter of faith’ — will not restrict their options. Ultimately, the court will have to decide if equality is simply uniformity or whether diversity, too, is desirable. Triple talaq was obviously not a deserving test for that proposition because of its inherent odious nature and its questionable pedigree.
SOUND AND FURY
In the end, the Triple Talaq Bill did not go through in the Rajya Sabha, much to the chagrin of media channels. Appeasement charges ruled the day. Yet, both sides in the Parliament screamed betrayal of the “weaker sex’ (a term that has arguably overstayed its welcome)—the BJP said the Congress and the other Opposition parties were giving in to vote-bank politics to deny women their rights (as though they do not have votes); the Congress and the rest said the government was reluctant to do enough for women. Somewhere, there was a formal rejection of criminalization. But all statements were ex cathedra and without any sound reasoning. What was lacking in logic was sought to be made up for by sound and fury. Without disrespect to the BJP, its case boils down to “use gender justice to inflict injustice on Muslim’ or kill a bird twice with the same stone. It is, therefore, important to understand the entire matter.
Talaq is effective even if said once (of course, with such conditions as just cause and after mediation by representatives of both husband and wife). During the iddat period of three months (during which the wife cannot remarry), it can be taken back by the husband. After a month or two, it can be repeated to reaffirm the resolve to separate, but it can still be taken back. However, when it is finally said the third time, at the end of iddat, it becomes final, though even without a third proclamation talaq becomes final when iddat expires. The only difference between two pronouncements and three is that the couple is free to remarry in the case of the former but not in the case of the latter, That seems a restriction imposed on the husband for saying it three times.
The triple instantaneous talaq is (or rather was) essentially talaq of the three times, but said at one sitting instead of over three months. So, essentially, the only difference was that the husband denied himself the right to take it back or indeed to remarry the ex-wife after iddat. For the woman, there was no real difference so long as the husband’s obligations of the iddat period were observed as they must. Any other understanding that sought to relieve the husband of those was never legally valid.
Now the Supreme Court has declared triple talaq void. That means, as has been thought from time immemorial, that the triple talaq pronouncement is treated as a single talaq, valid as such, but the man would still have the iddat period of the woman to either take it back or pronounce it again. There is no other difference. However, the legislation of the NDA government revives triple talaq in order to declare it void afresh. Either way, there is no legal consequence of pronouncing talaq three times at once other than the effect of having said it once. In the circumstances, there is no sense to impose criminal liability on something that has no legal consequences. Even if as a policy decision it is felt that some deterrent is called for, it could have been done without resorting to criminal culpability. It is meaningless to compare this with other criminal acts, such as failure to take steps necessary under a particular law, because in each such case there is a consequence, whereas after the Supreme Court judgement there is no consequence of pronouncing talaq three times at the same time.
We must be careful that there is no case against talaq per se or the entire Islamic system of marriage and divorce, described by Justice Nariman as ‘astonishingly modern’. The learned honourable justice of the apex court clearly had in mind that, contrary to the widely believed opinion, Islam provides for a woman’s right to seek talaq by delegation, khula (dissolution of marriage), fask (annulment), and mubaraat (dissolution by mutual consent). Besides, for the marriage itself, the woman has a right to mahar, (consideration to give her consent). The nikahnama (marriage contract) is integral to the wedding ceremony and is signed by witnesses in addition to the parties directly involved.
Criminal law as a matter of good public policy must not intrude into the personal lives of citizens unless there is a pressing ground for it, such as physical violence. Many grounds of cruelty within a marriage are sufficient for divorce but certainly do not qualify for criminal prosecution. There is good reason for that — because no civilized society approves of watchdogs in the family home. It is sad that some people point to what other countries do, as though we have to permanently remain followers rather than show the way to an enlightened legal system. With triple talaq gone, it is a waste of time to decry those sympathetic to triple talaq or seek punishment for those who foolishly utter it despite its ineffectiveness.
Shorn of the noise and harangue, the issue is really not about the empowerment of women, because then the government should have been looking at enhancing the benefit and protection granted by the Muslim Women (Protection of Rights on Divorce) Act 1986, and other protective legislation. Ironically, the present legislation is titled the Muslim Women (Protection of Rights on Marriage) Bill, 2017.
The real intent is clearly to chip away at the personal laws to bring in the UCC. If that is the case, let there be an honest debate and let the right view prevail. Rather, the BJP government chooses to continue the facade of acting for the empowerment of Muslim women while avoiding the larger debate around a UCC and their slow but steady erosion of minority personal laws, the latest step being the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018,% promulgated on 19 September 2018.
(Excerpted with the permission of Rupa Publications)