Triple talaq verdict: Defeat in disguise or pyrrhic victory?

There’s much jubilation over the Supreme Court’s verdict of August 22, striking down ‘triple talaq’ as unconstitutional. The inhumane practice of pronouncing the fatal word ‘talaq’ thrice in one go, whether in person, or over a telephone, in some cases, reportedly via email, to secure immediate and irrevocable divorce, caused much harm to Muslim women, according to several cases before our courts of aggrieved Muslim women who have been its victims. Triple talaq empowered the male — the husband — while the wife, the female, was subject to his whim, caprice, fancy, or, more likely, impetuosity. The wife did not have similar rights in the matter. This manner of divorce, known as talaq-e-biddat, was already outlawed in 22 Muslim countries. India was tardy in following in their footsteps.

In its 3:2 verdict, the highest court of the land struck down this form of instant talaq. The order, which is the legally enforceable part, declares:  “In view of the different opinions recorded, by a majority of 3:2, the practice of talaq-e-biddat — triple talaq — is set aside.” The judgements themselves, which provide the judges’ rationale, may be cited in the future in similar instances before the Court.

In the general atmosphere of all-round celebration, it may be considered unsporting to strike a contrary note. But I believe that the judgement is not as positive as it is made out to be. While the SC has done well in striking down instant repudiation of marriage by Muslim males by uttering ‘talaq’ thrice, the real question concerns the grounds of the verdict and their wider ramifications. I tend to agree with noted commentator Pratap Bhanu Mehta: “The Court’s decision is disappointing. It reflects the fact that India is still not ready to embrace the full promise of individual freedom and equality embodied in its Constitution; they will have to be won in bits and scraps, hesitantly and amelioratively.”

The difference of opinion among the judges is the first issue. While CJI JS Khehar and Justice Nazeer were in favour of retaining triple talaq, the remaining three members of the bench, Justices Joseph, Nariman, and Lalit tipped the scales, albeit for different reasons, against the practice. The central issue is whether the Indian Constitution is higher than Sharia when it comes to protecting the rights of Indian citizens. The learned bench of the Supreme Court failed to give a clear signal on this score.

To put it simply, Justice Joseph opposed triple talaq because it was unIslamic, therefore it could not be protected by Article 25 of the Constitution, which allows religious communities the right to their own practices. Justices Nariman and Lalit, on the other hand, wanted it invalidated because it contravenes article 14 of the Constitution, as a ‘manifestly arbitrary’ exercise of a husband’s powers over the rights of his wife. CJI Khehar, on the other hand, held that triple talaq was an ‘integral part’ of Muslim personal law, which was protected by Article 25 of the Constitution. Only new legislation by the Parliament could alter that, Justice Nazeer concurred. The contrasting judgements therefore end up with utterly contradictory messages: 1) that the constitutional rights are higher than religious personal laws; and 2) that Muslim personal law, no matter how retrograde, is as incontrovertible as fundamental rights.

The reactions from Muslim religious conservatives were swift.

Maulana Arshad Madani, one of the parties to the dispute, and president of Jamiat Ulema-e-Hind, denounced the verdict as ‘contrary to Sharia’. He went on to say, “Regardless of the court ruling, the practice of talaq, including instant triple talaq, will continue in the country and will be considered valid.” Such a view has also been echoed by TMC MLA Siddiqullah Chowdhury, who is also a minister in Mamata Banerjee’s cabinet. He described SC verdict on instant triple talaq as ‘unconstitutional’. Why? Because the Constitution has no right to contravene the Sharia. In other words, Indian Muslims should not follow the Constitution, but the Sharia. Such views are by no means uncommon among sections of the community.

In fact, the SC has invalidated only one form of triple talaq — talaq-e-biddat or instant talaq. Even after this form being declared ‘unconstitutional’, the practice of other forms of triple talaq remains a valid form of divorce in India for those governed by the Muslim personal law, if each pronouncement is administered after the requisite gap of one mensem or menstrual cycle of the wife. In other words, over a period of three months, provided that the husband has not had sex with his wife during this time. In future, if other articles of the Muslim — or for that matter any other personal law — need reform, we will hit a roadblock. Clearly, what the country needs is the scrapping of the very idea that Personal law is exempt from Constitutional scrutiny. This verdict, unfortunately, has not helped much in this regard.

The truth is that this divided verdict reflects the confusions and contradictions of our Constitution itself. Neither the committee that framed it, led by Dr Bhimrao Ramji Ambedkar, nor the present rulers and citizens of India, seem to clearly know who we are and what kind of country we want to live in.

The author is a poet and professor at JNU.
Views expressed are personal.