Talaq verdict: Thin end of the wedge
The spirit of Shah Bano Begum, arguably the most famous victim of triple talaq, can finally rest in peace. She has a won a moral, if posthumous victory, with the Supreme Court verdict declaring verbal divorce or talaq-ulbidaat as unconstitutional. The battle for gender justice, however, is only half won.
The next phase of the struggle will be played out, not in courts of law, but in the public domain, when the shape and form of the Act of Parliament governing Muslim marriage is debated. In this context, the Congress has the opportunity to erase a shameful 30-year legacy of appeasing Muslim radicals. The ruling NDA, likewise, has a chance of following through on the promise it made in its 2014 manifesto, of a Uniform Civil Code (UCC).
If the triple talaq case was indeed about ensuring justice for Muslim women, as NDA leaders have stated, then the government cannot get away with half-measures. It must expand the scope of the debate to include all gender discriminatory and retrogressive aspects of personal laws. The verdict against triple talaq is the thin end of the wedge. It can be leveraged towards legal reforms aimed at placing Muslim women on an equal footing with all citizens, which can be best accomplished through the enactment of a uniform civil code.
Let's face it: triple talaq was indefensible right from the start. Poor Kapil Sibal, representing the All Indian Muslim Personal Law Board (AIMPLB) struggled to come up with credible arguments. He fell back on the dubious contention that it had a religious mandate. Given that several countries ruled by sharia law do not recognize triple talaq, his plea had no traction whatsoever. After all, the sanctioned-by-religion argument could logically be extended to the practice of sati, which is banned by law.
So, the critical point is not that triple talaq is anti-Islamic – which the Supreme Court has accepted – but that it is undemocratic. Religion cannot trump human rights. Articles 25 and 26 of the Indian Constitution, which guarantee freedom of religion, should not overrule either the right to life and personal liberty, protected under Article 21, or the fundamental rights recognized in part three of the Constitution.
This segues naturally into the issue of polygamy, Muslim women's right to divorce (khula) and control over reproductive rights. To say that these issues will be addressed through the agency of the AIMPLB is absurd. It took 70 years and a five-judge Constitution Bench to put an end to the practice of triple talaq. The AIMPLB in any case has resisted all efforts at reform and has zero credibility in this respect.
The other argument, that educated members of the community will take the lead in reforming personal laws, is equally doubtful. Education is no guarantor of a progressive outlook. Shah Bano's husband was a lawyer, after all. So were the Muslim leaders who in 1986, prompted the then Prime Minister Rajiv Gandhi to enact a law nullifying the apex court's verdict granting right of maintenance to Shah Bano (she filed her plea in 1978, three years after being evicted by her husband, at the age of 60).
Hindu marriage laws, from 1956 onwards, have disallowed polygamy and bigamy, child marriage and incest, while the Hindu Succession Act of 2005 granted women an equal share in inherited properties. No rational argument can be extended to deny Muslim women the same rights. All over the world, the practice of polygamy is regarded as being against the spirit of democracy. The US banned polygamous marriage, practiced by the Mormon community, back in the 19th century.
Regrettably, many so-called liberals and even gender activists align with the Muslim patriarchy on the issue of personal law. They have tolerated the abuse of women on the plea that any attempt to force reforms in personal law will allow the state to interfere in the affairs of minority communities and impinge on their religious freedoms. Yet, every opportunity at internal reform was rejected and ultimately, it had to be forced. The increasing atmosphere of Wahhabism (conservative Islam) worldwide narrows the scope for voluntary reform.
A Uniform Civil Code (UCC) will have no impact on India's pluralism or on the secular nature of its polity. In fact, it can be argued that personal laws are discriminatory in themselves, denying equality before law on the basis of creed and gender. The NDA now has the numbers to make a serious push for a uniform civil code. All it takes is political will and Prime Minister Narendra Modi has shown that he has it, in spades. The man who demonetised four-fifths of India's currency overnight, cannot balk at the idea of introducing progressive legislation, however controversial it may be.
IF THE TRIPLE TALAQ CASE was indeed about ensuring justice for Muslim women, as NDA leaders have stated, then the government cannot get away with half-measures. It must expand the scope of the debate to include all gender discriminatory and retrogressive aspects of personal laws.The verdict against triple talaq is the thin end of the wedge. It can be leveraged towards legal reforms aimed at placing Muslim women on an equal footing with all citizens, which can be best accomplished through the enactment of a uniform civil code.