Girish Shahane


The Supreme Court’s divided judgement on instant divorce is a tiny step in the right direction.


The Supreme Court finally showed some spine in prohibiting the abhorrent practice of triple talaq, or instant divorce. The court’s liberals just about squeezed out a win in the case, with the five-member panel split 2:1:2 on the matter. I suppose, in these dark times, we should be thankful for small mercies. But it’s also worth noting just how small those mercies were.


The country’s highest court has made a habit of determining matters of policy, in which it has little expertise, while shrugging off what ought to be its central concern, the protection of fundamental rights. Its most ignominious abdication of responsibility was the decision regarding Section 377 of the Indian Penal Code. Overturning a Delhi High Court order which decriminalised homosexual acts, the Supreme Court affirmed the validity of the Indian Penal Code’s “sex against the order of nature” clause, and urged Parliament to debate the issue.


There are other recent instances where the court shirked its duties. The Babri Masjid case may not have involved basic rights, but it was nonsensical to ask two parties to settle the matter amicably, given they had failed to do that despite decades of effort.


The reasoning


In the instant divorce trial, two of the judges on the panel, Chief Justice JS Khehar and Justice Abdul Nazeer, took a tack similar to the Section 377 verdict, putting the onus on Parliament to change what they saw as an acceptable law. In a dissenting note, they wrote, “It is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”. In other words, no matter how unfair a tradition, it can continue as long as it has religious sanction, fundamental rights be damned.


The judge in the middle, Justice Kurian Joseph, held that triple talaq was actually anti-Islamic, and voided it on those grounds. He accepted that unjust practices could be condoned if they had religious sanction, but disagreed with Khehar and Nazeer about whether triple talaq qualified. Although it’s rather dangerous for judges to be deciding what is or is not integral to a religion, Joseph’s theological conclusion effectively put him on the same side as the two judges who took the correct principled stand. Justices Rohinton Fali Nariman and Uday Umesh Lalit held instant divorce to be in violation of Article 14 of the Constitution, which guarantees equality before the law. For them, the relationship of the practice to Islam’s central tenets was irrelevant, as it should be. No democratic nation should accept inequities sanctioned by faith.


Prime Minister Narendra Modi tweeted in praise of the judgement, saying, “It grants equality to Muslim women and is a powerful measure for women [sic] empowerment.” Modi is the last person who should speak of women’s rights, having abandoned his wife early on and refused to acknowledge her existence while also denying her freedom to shape an independent life of her own. Besides being hypocritical, Modi’s tweet, like almost everything he says, was false. The ending of triple talaq does not guarantee Muslim women anything close to equality, not even in divorce. It’s not as if they can now initiate divorce by pronouncing talaq and then repeating the word over the period prescribed for men.


Secular civil code?


The rationale behind Nariman and Lalit’s judgement suggests that any asymmetry between male and female prerogatives contravenes Article 14. Taking this to its logical conclusion would mean thoroughly reforming Muslim personal law to bring it in line with contemporary ideas of justice and equality. But if laws relating to marriage, divorce, polygamy, inheritance, custodial rights, and adoption are modified to make them gender just, they will cease to be Islamic in any sense, for no iteration of shariah has ever provided equality for women.


The Nariman-Lalit logic leads to the conclusion that a secular law will have to replace faith-based codes. To put it another way, to have gender just laws, we need a secular civil code. I wrote about the necessity of such a code in a column last year.


On April 18, 1966 Muslim Satyashodhak Mandal held a historic march demanding a common civil law in Mumbai, which was led by Muslim progressive thinker Hamid Dalwai and saw participation of seven women, including his wife late Mehrunissa Dalwai.


Right now, the idea of a common civil code is mainly a wedge issue used by the BJP to shore up its base. But rather than merely criticising the BJP for its divisive politics, liberals ought to call the party’s bluff by demanding it produce a working draft of such a code. Unfortunately, since the late 1980s, the Left, which used to be the most vocal proponent of gender justice in India, has made its peace with shariah law. The Congress, which found a vestige of its progressive history in the case of Section 377, has played a miserable role in the matter of triple talaq, with one of its most prominent leaders, Kapil Sibal, fighting the case on the side of the fundamentalists.


Let us presume, for the sake of argument, that the BJP actually produces an equitable civil code and manages to implement it, an extraordinarily tall ask. That achievement will be a necessary step, but far from sufficient to ensure justice for India’s women. After all, we have a host of progressive laws regarding dowry, marital age, and polygamy for Hindus, but Hindu women are very far from securing practical equality.


Consider the case of Dhirubhai Ambani. His death precipitated a division of spoils and a protracted battle between his male heirs, Mukesh and Anil that was covered extensively in the media. Dhirubhai also had two daughters, Nina and Deepti. In all that was written about his legacy, nobody suggested that his daughters deserved to split their father’s wealth equally with their male siblings, though the law provided for it. I have no idea what proportion of married Hindu daughters inherit a rightful share of property from their deceased parents, but I’m sure it’s minuscule.


It’s going to be a long, hard grind from the end of triple talaq to the reform of other unjust faith-based laws, to achieving practical gains for India’s women as a consequence of statutory changes. The Supreme Court’s divided judgement on instant divorce is but a tiny step, but at least it’s in the right direction.


From – 23 August 2017

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