Supreme Court’s suo-motu marriage with Triple Talaq

The political drama in the name of triple talaq will do more harm to India by overtly moving towards the homogeneous hegemony of an ideology which assassinated the Father of the Nation, Mahatma Gandhi.

The Supreme Court of India has delivered a significant judgment declaring the anti-Quranic instant triple talaq (talaq-ul-bid’at) “void”, “illegal” and “unconstitutional”. It has been wholeheartedly welcomed by several activists groups, Muslim religious organisations and also the right-wing anti-Muslim outfits. The Chief Justice of India, using his power under Article 142, directed the Union of India to form a proper legislation on the matter.

But is this judgment going to serve the interest of Muslim women in any way?

There is a lot of noise as to who deserves credit for the decision but the credit must go to the Supreme Court bench of Justice R Dave and Justice AK Goel, which had taken suo motu cognisance and instituted a public interest litigation, ‘Muslim Women’s Quest For Equality’ in 2015, while delivering a very regressive judgment against Hindu women and girls. Because of this ‘judicial Muslim appeasement’, everyone ignored the plight of the deprived Hindu women and girls. The agenda was to rescue the Muslim women from triple talaq, and it became the foremost issue for 1.3 billion Indians.

But there are questions still unanswered. In 2002, the Supreme Court had already declared one instance of instant triple talaq as 'invalid' in the Shamim Ara and Daddu Pathan divorce case, known as Shamim Ara v. the State of UP, and nobody had challenged it, as a result, it became a settled law.

Yesterday, Justice Kurian Joseph said in the judgment that “...This Court in Shamim Ara v. the State of UP and another has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, in terms of Article 141, Shamim Ara is the law that is applicable in India…"

So, should we call it ignorance and a waste of the nation’s time if the Indian judiciary had settled the issue of triple talaq in 2002 itself? Why is the important “Shamim Ara law applicable in India” not being used and propagated? Why don’t people, women’s rights groups, and, especially, the judiciary know this, because Justices Dave and Goel have shown their ignorance while instituting a PIL in this regard? And similarly, we can ask if the recent judgment and proposed legislation will receive the same fate. We know that rulings and laws also have limitations.

We know that there are six major Islamic schools of thought, practiced by Muslims in India, and many of them are opposed to triple talaq and have various interpretations related to it. So, how can it be called a matter of all 180 million Muslims, who are not a homogenous entity? What is the reason for denying diversity among Muslims? How can we close the gate of legal pluralism from our constitutional framework? Why does prejudice against Muslims still prevail in the Supreme Court?

Muslims themselves are deeply engaged in resolving challenges like triple talaq and others. So, how will this judgment help them in their pursuit to ensure justice to Muslim women? Since December 2015, I was part of dialogues and negotiations related to this particular case, and I have closely witnessed many changes in the positions of several parties involved.

The change is coming from within, but I wonder if the current exercise has already sabotaged the efforts of the reforms. Those Muslims who used to listen to arguments against triple talaq and other regressive practices, would not listen to people like us because those championing the battle are the ones responsible for the environment of insecurity, discrimination and targeted violence against Muslims in India to begin with. The laws do make things better and try to enforce equality, but enforcing change by demonising the victims themselves cannot ensure any good.

Many times, oppressed societies close themselves to any voices or opinions in times of great crisis. They become more conservative because of persecution, and also because there are not enough efforts to acknowledge, empathise or even oppose this oppression. And there is no doubt that Indian Muslims are going through one of the dangerous eras in India, where their survival is at stake.

In newly proclaimed India, Muslims continue to live in fear and have started downplaying or hiding their distinguishing characteristics because propaganda, violence and political support for bigotry have encouraged many people to reveal their Islamophobia more brutally. And people committing hate crimes seem to operate with full impunity. Some Muslims have also started converting to Hinduism to ensure their survival.

The majoritarian winds are glorified everywhere — in Parliament, the media, the judiciary, and are helping the conversion of secular India into a Hindu rashtra. Therefore, the whole Supreme Court exercise seems more of a political plot, rather than a sincere judicially reformative effort.

The Prime Minister Narendra Damodardas Modi who has abandoned his own wife Jashodaben Modi, is talking about equality to Muslim women, at the same time, his government is backing the marital rape. The same Supreme Court has gone against the spirit of the Constitution and has recently ordered NIA to probe the marriage between two consenting adults in Kerala, because of allegations by a third party.

Those who cannot give 33% reservation to women in assemblies and the Parliament are now championing the cause of liberation to Muslim women. There are many Muslim women who are struggling for justice but government and judiciary are not empathetic towards them.

There is no justice to the Muslim women victims of 2002 Gujarat pogrom or 2013 Muzaffarnagar pogrom, who have been raped, many of them killed and burnt, the evidences were destroyed or manipulated. India is the country where Kausar Bano a pregnant woman whose womb was ripped open and the foetus dangled on the tip of a sword by the mob before she was killed in Naroda Patia massacre, has unworthy to get justice. Is she not a Muslim woman?

We live in a great constitutional parliamentary democracy where there is no justice to the Muslim women whether the Parveena Ahanger or Fatima Nafees and many like them whose sons have never returned back. The same case is with hundreds of Muslim half-widows, whose husbands never returned back. What about justice to them?

Why India is not supporting the struggle of justice to Zakia Jafri whose husband Ehsan Jafri, a former Member of Parliament, was brutally hacked and burnt to death in the Gulbarg Society massacre.

We are proud of our greatness, and hear speeches asking people to dig out dead bodies of Muslim women and rape them. And it has happened twice in UP, and there is no single condemnation. There is no justice to these dead Muslim women.

Why no justice to those Muslim women whose children or husband or family members are being killed in fake encounters; or are still languishing behind bars for several years in the fake terror charges.  

What about the mother of Junaid Khan who was lynched in a train, or the family of Mazloom Ansari who was hanged in Lathehar. Almost one cow-related attack every week has taken place in 2017 thus far, as Modi government has allowed ‘holy’ mobs to attack and kill Muslims as though the state is a certified abattoir. What about women in their families? Are they not Muslim Women?

The judiciary seems completely oblivious of the need to intervene to protect the rights of these Muslims. The judiciary has failed to take suo motu cognizance, and it has proven that Supreme Court is not just, as it pretends.

There is no future of a nation as a state, which denies justice, where poverty and marginalisation are being enforced, where stereotypes and prejudices become the guiding force, where majoritarian mobs rule, and hate and violence are offered as food for satisfaction. The political drama in the name of triple talaq will do more harm to India by overtly moving towards the homogeneous hegemony of an ideology which assassinated the Father of the Nation, Mahatma Gandhi.

The Supreme Court should not repeat the wrongdoings of the past. We still have not forgotten the role of Supreme Court during the Emergency which remains a blot. Supreme Court has to ensure the rule of law, which is the basis of our democracy. 

Ovais Sultan Khan, is a Delhi-based social activist. An edited version of this piece was published by Newslaundary and can be accessed at http://bit.ly/2g4y3ZO