One cannot but watch the current arguments being made by various parties in the triple talaq case with some amount of disquiet. The case is being heard by a five-judge constitution bench headed by Chief Justice J S Khehar, which has three other judges from minority communities. The one discriminated minority which is not represented in the bench, and which is central to this dispute of gender justice, is a woman judge. However, given the paucity of women judges in the Supreme Court, one need not hold this against the court. But the trend of thoughts, both from the lawyers and the bench itself, is bizarre.
Yesterday (17 May), the bench began quoting from the Surah at-Talaq to suggest that triple talaq in one sitting had no mention in the Quran. Two other forms mentioned in the Quran were talaq-e-ehsan and talaq-e-hasan, but these did not accord with instant triple talaq.
The court probably brought this up in order to counter counsel for the All-India Muslim Personal Law Board (AIMPLB), which says that triple talaq is intrinsic to Islam.
The problem with the court’s counter is this: is it the court’s job to check what the Quran says or does not say, or to focus on what our Constitution says? Is gender justice for all Indians not an intrinsic part of the Indian Constitution?
In any event, it is worth pointing out that Islamic law does not relate only to what is written in the Quran. To define Islam, you need to add the Sunnah and the Hadith to define what constitutes essential Islam. The Sunnah is defined in Wikipedia “as the verbally transmitted record of the teachings, deeds and sayings, silent permissions (or disapprovals) of the Prophet as well as various reports about Mohammed’s companions”, and the Hadith is a “collection of traditions containing sayings of the Prophet with accounts of his daily practice”. To this must be added local practices of Islamic groups in various cultures.
If the Supreme Court starts challenging the mullahs on what constitutes Islam and its intrinsic practices, it is going down a slippery slope in which the mullahs will have the last laugh. The reality is even Muslims scholars do not agree on what constitutes the essentials of Islam, and, in any case, the court is not expected to be an authority on Islam.
Consider the dangers of this line of reasoning from the court: What if tomorrow the AIMPLB sanctions the killing of an apostate, an idea which does find some basis in the Quran? Will the Supreme Court uphold this as intrinsic to Islam and say it can’t intervene? Or, for that matter, is it okay to break other people’s idols, since iconoclasm is intrinsic to Islam? Or will the bench uphold discrimination against kafirs in a Muslim majority state like Jammu and Kashmir? The AIMPLB has also claimed that polygamy is intrinsic to Islam, but can it stop women from demanding the right to monogamy in future?
Coming back to the issue of triple talaq, the AIMPLB made a written submission that women could insert in their nikahnama their right to not be subjected to triple talaq in one sitting. To which the bench asked whether the qazi will ascertain this?
Again, this is the wrong question to ask. How is the court ever going to be able to police what qazis ascertain or do not ascertain in marriage contracts, when these will run into millions every year, and a patriarchal society will always pressure women not to insist on these rights? If at all the bench is concerned about putting such things into the nikahnama, it could do a simple thing: make triple talaq in on sitting illegal by default, and in case a particular woman has no problem with it, she should specifically give her consent to triple talaq and write it into her nikahnama. This will be fairer and subject women to less conflicts in the community. But then it also brings the force of Indian law into the nikahnama, and this is anathema to the mullahdom.
Once again, the simple thing would be to focus on gender rights, and not get into what is intrinsic or not intrinsic to a religion.
More recently, the APMPLB has been saying that women also have a right to triple talaq, but this contradicts its earlier stand, that men are better decision-makers in this matter. Clearly, the AIMPLB is squirming under the harsh arclights of public scrutiny of its patriarchal practices, and is looking for a face-saver to get the Supreme Court off its back. But the court cannot easily do so, for this would mean dismissing the petitions of the women who have specifically been victims of triple talaq. The court cannot let them down under the Constitution it is sworn to protect.
To make matters worse, we have had the AIMPLB’s legal voices, including Kapil Sibal, using bad analogies and arguments. The other day Sibal claimed that triple talaq was a matter of faith just as Ram Janmabhoomi was one for Hindus.
This is, of course, false equivalence, for the Ram Janmabhoomi issue relates to whether or not the Babri Masjid was built over a destroyed temple, and this seems more than likely given the historical and other evidence. In any event, if the right to triple talaq is a matter of faith, the Hindu groups that want a temple built in Ayodhya should rejoice; for the minor concession of granting Muslim men the right to divorce their wives in a single sitting, they can get them to sign on to building the temple in Ayodhya.
The larger point is that both the bench and the AIMPLB – and also the government’s attorney general who insisted that triple talaq was not intrinsic to Islam – are sliding towards dangerous territory. It is not the Quran that the court has to uphold, but the Constitution.
The trend of argumentation is headed in the wrong direction.
Jagannathan is Editorial Director, Swarajya. He tweets at @TheJaggi.
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