SC verdict on triple talaq gives all parties in the case a crumb of comfort
The strange thing about the Supreme Court verdict on instant triple talaq – declaring the practice as void – is that it is being hailed by all sides, albeit for different reasons.
This includes the All India Muslim Personal Law Board (AIMPLB), painted as the villain of the story, petitioners who are overjoyed with the verdict, and the BJP.
There is, however, uncertainty over whether the government will still bring in a law to codify Muslim personal laws, and a debate if this move was just to test waters and take a step towards a uniform civil code (UCC).
The judgement of the five-judge Constitutional Bench gives all sides at least a crumb of comfort to hold on to.
'Unconstitutional' or not?
The AIMPLB, which had stood its ground in court on how triple talaq was an Islamic practice, and that the courts should not intervene, called the judgement a 'huge victory', saying it vindicated its stand, since it accorded protection to Muslim personal laws as a 'fundamental right' under the right to practise religion.
The statement of the board refrained from using the word “unconstitutional”, despite the 3:2 majority verdict by Justices Kurian Joseph, UU Lalit and RF Nariman, which declared triple talaq 'unconstitutional'.
Political leader Asaduddin Owaisi of the All India Majlis-e-Ittihadul Muslimeen (AIMIM) agreed: “The majority judgement accords protection to personal laws.”
Prof. Faizan Mustafa, Vice-Chancellor at Nalsar University of Law, Hyderabad, explained how, he, too, did not believe that the judgement termed the practice as 'unconstitutional'. He pointed out that Justice Kurian called it 'unconstitutional' because it is not part of the Quran, and not because it violated any fundamental right.
Mustafa said the judgement did not just stop at this, and made the right to personal laws a part of freedom to practise religion, a fundamental right.
Perhaps, this reading of the judgement prompted the AIMPLB to issue a warning to the government on how it should not “misuse” the verdict to legislate on personal laws.
Even today, the website of the AIMPLB has a 'triple talaq corner', with separate proforma for men and women, asking them to sign up with their allegiance to the board when it came to safeguarding and protecting of Sharia laws, and declaring they were satisfied with Islamic laws, including the one on talaq.
Need to codify personal laws
Former Union cabinet minister Arif Mohammad Khan, who had resigned from the Rajiv Gandhi government after its stand on the Shah Bano case, said the very nature of the personal laws was the reason for this confusion.
Khan, who had rubbished the AIMPLB as merely an 'NGO', said the Muslim Personal Law, Application of Shariat Act was not a detailed law, but just a 'declaratory law', whose provisions did not have legislative sanction. “It is just a one-sentence-long law – marriages, divorce, inheritance will be decided by Muslim personal law. What is Muslim personal law? Nobody knows,” he said, explaining how it was at the root of all confusion.
“Only the government can codify it. They should do it. The AIMPLB can give whatever proposals it wants,” Khan said.
Zakia Soman, head of the Bhartiya Muslim Mahila Andolan, too, said there was a need for a Muslim family law. “We want a Muslim family law based on the tenets of Quran,” she said.
Congress leader Meem Afzal said the reform should come from within the community, and that the AIMPLB should talk to all stakeholders, leaders of the community, and initiate reform before the government decided to bring in a law.
Mustafa, meanwhile, said it was unlikely the government would bring in a law, since the majority verdict did not warrant it.
The All India Ulama & Mashaikh Board, an umbrella outfit representing Sufi Muslims, too released a statement welcoming the judgement, but warning the government against fiddling with personal laws. It gave a clear sign that the clergy may yet again unite against any moves to bring in a law barring Shias, who have taken a contrarian perspective, with senior clerics like Kalbe Sadiq speaking out against triple talaq in the past. Shia sects do not practice talaq-e-biddat.
For now, the BJP leadership including Prime Minister Narendra Modi, party president Amit Shah, and Union Finance Minister Arun Jaitley, among others, have hailed the verdict. PM Modi called it “historic” and “a powerful measure for women empowerment”.
Congress, too, welcomed the verdict, perhaps learning its lesson from the Shah Bano days when it sided with the clergy.
Afzal claimed those days were different, and that an overwhelming majority of the community was against the judgement, leading the government to budge.
Afzal said BJP was playing politics over the issue, and explained how its predecessor, the Jana Sangh, had opposed the Hindu Code Bill.
Khan, who resigned at the time of Shah Bano, said it would be wrong to attribute motives to the BJP, and that it deserved credit where it was due, even though the judgement was a victory for Muslim women.
“Did they have a metre to measure what the feeling in the community was at that time?” Khan asked.
“What is our history? That the government supported the AIMPLB against a poor woman. The BJP did not do so, and decided to side with the women. How can you not give them credit?” he said.
Khan cited a former police officer speaking at a public meeting, ruing how the so-called 'secular parties' and the Left seemed to be in the AIMPLB's corner, and the parties which were labelled 'communal' and 'regressive' were fighting this cause.”
Mariya Salim, member of the Bhartiya Muslim Mahila Andolan, said support from the BJP meant a lot of extra questions, which were not related to the issue. “It's not just the BJP; we want all parties to talk about it,” she said, explaining how this judgement was a crucial step and broke the “patriarchal fortress”.
Political scientist Zoya Hasan, too, called it a “progressive and secular judgement”, and a “step in favour of equality”, despite the irony that it was being championed by the BJP, which seems to have abandoned the community in general.
UCC on BJP's mind?
But could the BJP championing this issue be part of its plan to bring in a UCC?
Some of its leaders like Subramanian Swamy have said how the next logical step for the government should be a UCC.
Afzal said talk of UCC for Muslims was like 'Muleta' in the Spanish bullfighting. “The hanging sword of the UCC sometime stops Muslims from reforms. Muslims should not be scared of this,” he said.
Others like Khan are not convinced by this. “I don't know what is a uniform civil code. Is there any definite proposal? Is it just a ghost, just to create fear?” he asked.
Don't look at it from myopic viewpoint
The issue of triple talaq had divided the Muslim community. Mustafa pointed out that there was considerable divergence of opinion within the community, and said it should be dissuaded from looking at this issue from the myopic viewpoint of what the BJP wished to achieve through it.
As Owaisi put it: “Judgement or no judgement, to bring in UCC is at core of the BJP's ideology.”
He went on to ask why the BJP was celebrating the verdict when the judges only struck down the instant triple talaq. “The Attorney-General had said in the court how the government was against all forms of talaq,” he told Catch.
In a separate statement, he talked about how the government should also care about widows.
Mariya Salim, meanwhile, said while there was a need to talk about other issues as well, for now “we must celebrate this good decision.”