The Triple Talaq Judgment Must Be Viewed Within the Historic and Political Context of Minority Appeasement

By S Irfan Habib | 24 August 2017

The issue of triple talaq has occupied the public consciousness for long—in the past three years, particularly, it has become entangled in the necessity and urgency of reform within the Muslim community. By most measures, the existence of this debate itself is saddening—we are trapped in resolving a medieval question in the twenty-first century, one that even the otherwise retrograde Islamic Republic of Pakistan has dispensed with it. While the judgment that was pronounced on 22 August is celebrated and debated in equal parts, it is important to remember the historical and political context of how triple talaq came to assume this relevance, and its relationship to Muslim appeasement by political parties over the years.

The nineteenth century saw the beginning of reforms in what is present day India, when the British colonial rulers, with their own ideas of morality and governance, began questioning the existing practices. Then, the early Indian reformers emerged—among others, these included Ram Mohan Roy, who is most widely recognised for his efforts to abolish sati; Syed Ahmad Khan, a prominent critic of the Islamic orthodoxy; and Govind Ranade, who campaigned for the rights of widows and against child marriage.

These reformists faced huge reaction from the conservative sections of their respective communities, including death threats and fatwas of excommunication. Despite such opposition, some of these reformers were successful—the British government was able to bring in legislations that banned many Hindu oppressive and outdated social practices, such as sati and child marriage

Unfortunately, reform within Islam remained stunted despite aggressive campaigns by the likes of Khan and his modernist collaborators. His associate, Sayyid Mumtaz Ali, for instance, can be considered as one of the earliest defenders of women’s equality. Ali authored Huquq-i-Niswan (The Rights of Women), a book in which he used Quranic verses to advocate for equal rights for women. He championed causes such as women’s education, and rejected purdah, polygamy and forced marriages—practices he considered unjust and injurious to women. In the nineteenth century, there were many social reformers among Muslims, who, like Ali, took progressive positions and wrote and spoke with conviction about reform and gender justice within Islam. However, the orthodox sections—the many ulemas and their large followings—remained averse to change. They remained antithetical to change and perceived any prospect of reform as a threat to Islam. From a global Islamic perspective, this was likely more a threat to these entrenched Muslims than to Islam.

In India, this manifested in a curious manner. Soon after Independence, the first elected government of India decided to bring about the famous Hindu Code Bill to replace the Hindu personal law. The bill was introduced in the Constituent Assembly on 9 April 1948, and met huge uproar and controversy. The bill was subsequently broken into three different bills—a marriage bill, an adoption and maintenance bill, and a succession bill. Jawaharlal Nehru succeeded in getting the bill passed in parliament, despite severe opposition from some senior members of his own government and from Rajendra Prasad, the first president of independent India.

Many Hindu leaders accused Nehru of being blatantly partisan because he did not include Muslim personal law as part of this reform. Nehru’s commitment to secularism surely took a beating due to this ambiguity—though it can be argued that he was right to not take it up at the time, in order to reassure the Muslims who had decided to stay back in India that their faith was welcome. Nehru and his government were up against a difficult political context—its election followed unprecedented physical and mental violence. Perhaps Nehru and Ambedkar felt it safer to proceed with reforms in the Hindu personal law at the time.

In the decades that followed, the Congress as well as other progressive forces had many opportunities to make a meaningful intervention, but failed to do so. The hindrance to legislation would have likely have been minimal—the All India Muslim Personal Law Board, which later blocked any forward-looking reform, was not established until the early 1970s. Yet, the conservative forces within the Muslim community held sway, and political parties continued to walk on eggshells. The Shah Bano case, for instance, is a great example of the Congress’s Muslim appeasement efforts—with an election looming, the government gave in to the demands of the orthodoxy, and enacted a law nullifying the Supreme Court’s progressive judgment that granted Muslim women the right to maintenance after divorce. Over the years, it conveniently publicised the controls on Hindu men, while Muslim men continued to be able to divorce with ease and marry more than once.

The triple talaq judgment needs to be seen in this context. Discouraged by the government’s actions, Muslim women, who had been victimised and insulted by their husbands, went to the AIMPLB for relief instead of going to the courts, and also to many ulemas, expecting support against their oppressive husbands. Instead of receiving help, they found themselves being doubted and questioned on many counts. Otherwise misogynist and communal leaders of Bharatiya Janata Party were able to flaunt themselves as defenders of these harassed Muslim women—many have hailed the latest judgment a great victory of the government, instead of that of Muslim women who led the campaign against it.

But let us also discuss the latest triple talaq judgment, in Shayara Bano vs Union of India. The court’s decision actually is a slightly improved and categorical version of many of its previous pronouncements, including the 2002 judgment in Shamim Ara vs State of Uttar Pradesh. The hype around this judgment notwithstanding, in Shamim Ara too, the court raised concerns about Muslim women’s victimisation and declared the use of triple talaq in that case as void.

The Shayara Bano judgment, delivered by a five-judge bench, contained three differing opinions—all of which clarified categorically that they are dealing only with instant triple talaq, or talaq-i-biddat, and not the other two forms of divorces in Muslim personal law: talaq-i-ahsan and talaq-i-hasan. The former is the most proper form of repudiation of marriage in Islam. The reason is two-fold: first, there is possibility of revoking the pronouncement before expiry of the iddat, or waiting period after divorce. Secondly, the words of talaq are to be uttered only once. Considered an evil, it is preferred that these words are not repeated. Talaq-i-Hasan is also regarded to be the proper and approved form of talaq. In this form too, there is a provision for revocation, but it is not considered the best form as the words of talaq are to be pronounced three times. The courts, however, have not ruled on these two forms.

JS Khehar, the chief justice, who was one of two judges who upheld the constitutionality of the practice, quoted the Constituent Assembly debates on Articles 25 and 44, which refer to the freedom of religion and the need to lay down a uniform civil code, respectively. Khehar stated that personal law is part of the freedom of religion, which courts are duty bound to protect. He further stated that personal laws are based on beliefs and are beyond judicial scrutiny.

Though Khehar’s is a minority view, it opens up immense possibilities for a fresh debate on the uniform civil code, as he emphasises that personal laws are intrinsic to religions and are a matter of faith. If such a debate occurs—and it should—I hope we are able to devise a code with heterogeneity of our nation in mind, as opposed to a quick imposition of the view that benefits those in power, be it the government or the orthodoxy. In light of this judgment, we need to rise above competing fundamentalisms and push for progressive reforms in personal laws that affect the lives of all Indian citizens.

S Irfan Habib is the Maulana Azad Chair at the National University of Educational Planning and Administration, New Delhi.

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