Triple Talaq Before The Indian Supreme Court

Triple Talaq before the Indian Supreme Court
verfassungsblog.de/triple-talaq-before-the-indian-supreme-court/
Menaka Guruswamy
01 June 2017
Shayara Bano, 35, a mother of two was unilaterally divorced by her husband of 15 years,
Rizwan Ahmed, when she was visiting her parents in October 2015. The news came to
her by post in the form of a talaqnama. Since then she has not been allowed to see her
children. The only evidence of the divorce was the note she received from her husband,
with the word “talaq” written thrice.
Shayara Bano’s was hardly a happy marriage: she was beaten routinely, forced to have
multiple abortions, sequestered from her sister who lived close by and had the threat of
divorce always hanging over her head.
Shayara Bano went on to become one among the many petitioners in a court case that
has captured India’s political, constitutional and social imagination – a challenge to the
constitutional validity of triple talaq, a practice that allows a Muslim man to divorce his
wife unilaterally simply by uttering the word “talaq” thrice. Today, he can even send the
message through email, WhatsApp, Facebook or through a letter – social media
apparently renders regressive cultural practices, even easier to perform!
Shayara Bano’s petition, filed early in 2016, joined a case that two-judge bench of India’s
Supreme Court had initiated suo-motu, which was then directed to asked that it be heard
by a larger constitutional bench of five judges. Several other petitions from Muslim
women and rights groups were also clubbed together.
In the months that followed before the the matter was listed for hearing on May 11 this
year (it was reserved its judgement in the matter), triple talaq become a subject of much
debate and even an electoral issue for the Bharatiya Janata Party making it clear that
religion is political.
Religion conundrum
All constitutional litigations are complex, but in India, when faith is posited against the
Constitution, it becomes even more so – for judges trained in secular law must
reimagine themselves as theocratic experts.
The court created this problem for itself. India’s Supreme Court has long adopted the
jurisprudential position that a practice that is an “essential part of a religion” is
presumed to be Constitutional – whether it violates constitutional values such as
equality, dignity, fraternity, expression and life, is secondary. This is especially significant
in a post-colonial Constitutional democracy that retained the system of personal laws –
where marriage, divorce, inheritance and succession are governed by religious law. Such
religious law is a codified or uncodified version of a certain interpretation of religious
traditions, usually favoured by powerful men.
It is undeniable that triple talaq degrades Muslim women and further dis-empowers this
section of Indian society that has already has low literacy and socio-economic markers.
Yet, it was defended in court as being an “essential part of Islam” by the male-
dominated and deeply conservative Muslim Personal Law Board. Contrary to this
position, Muslim women, represented through organisations like the Bharatiya Muslim
Mahila Andolan and individual petitioners like Shayara Bano argued that the practice
was unconstitutional.
Even Islamic nations like Bangladesh, Turkey, Iraq, Tunisia, Algeria, Pakistan and Egypt
ban the practice of Triple Talaq and the Quran itself does not provide for it. India is home
to around 172 million Muslims – 14.2% of the country’s population – with around 82.3
million Muslim women and hence this is an important Constitutional issue that impacts
a large section of citizens.
Religion puzzle
India’s many journeys include those as an ancient multi-layered civilisation, as a colony
and recently, as a vibrant Constitutional democracy. Pre-constitutional India was marked
by a colonial interpretation of religious traditions, a matrix of personal laws for different
religions including Islam and Hinduism. Religious practices prior to colonisation
included the the caste-system, untouchability, and limited personhood for women.
Reformist movements within religions emerged that were then overshadowed by
nationalist politics that were fiercely protective of all things Indian including the desire to
insulate Indian women from any coloniser-initiated legal reform.
In colonial India, the apex of all courts was the Privy Council in Britain. Demands were
made in the 1920s onwards for an “Court of Ultimate Appeals” in India, which would
hear appeals from the various High Courts. Ironically one of the many reasons given for
the setting up of such a court was that the Privy Council judges were unfamiliar with the
nuances of Hindu and Muslim law.
A Federal Court was established in India in 1935. Soon after, in 1937, a colonial
legislation, the Muslim Personal Law Shariat Application Act made such personal law
applicable to Muslims. The question of personal laws haunted India long after. The
Constituent Assembly chose to defer controversial identity-based questions like that of
a Uniform Civil Code (see Hanna Lerner), presumably to be solved by future generations.
Hence, a Uniform Civil Code (or a common family law irrespective of religion) was
enshrined only as a lesser non-justiciable Directive Principle of State Policy in India’s
Constitution, reminding future generations that they “must endeavor to achieve it”.
But, India’s founding provides some clues to how this puzzle of religious freedom and
Constitutional values should be approached. First, the Constituent Assembly itself
eschewed any State religion and chose the model of a secular state, unlike its
partitioned sibling, Pakistan. Second, the Constituent Assembly did proceed with two
formidable remedial actions against the worst of Hindu society.
The practice of untouchability was rendered unconstitutional and punishable by law, and
a remedial project was constitutionally initiated – of “reservation” or a setting aside of
political constituencies, governmental posts and seats in educational institutions for
scheduled castes and scheduled tribes that had historically been discriminated against.
This was later extended to “other backward castes” as well and such reservation has
long been overseen by the courts. That the caste system was an essential part of
Hinduism never deterred the framers or the courts from proscribing it and remedying
the harm it has long caused.
Yet, the court has always been strangely reticent on other matters of religion. For
instance, it has tiptoed around cow slaughter and beef bans, which upper-caste Hindus
have traditionally endorsed. What the brutally violent Hindu nationalist gau rakshaks or
cow vigilante groups and the All Indian Muslim Personal Law Board have in common is
that they are extra-legal, self-created associations that favour regressive interpretations
of religious practice through a disdain for human dignity.
But, the triple talaq case is not the only one where the court has engaged questions of
faith. In a previous piece, I have discussed the Ayodhya dispute where Hindu
nationalists, in the presence of prominent members of the BJP, broke down a long
standing mosque on a site that they believe Lord Ram was born, arguing that it was a
matter of faith.
The only real way for the court to engage with constitutionally untenable practices is to
stick to what they know best – robust constitutional interpretations of equality, dignity,
freedom and rule of law – and not look to interpretations of religious faith. For such a
jurisprudential choice reduces the court to a secular-theocratic adjudicator. In triple
talaq, the choice then is simple – it is a practice that is opposed to women’s equality,
their right to life and dignity and hence is unconstitutional. Not only have Muslim women
made their views clear in court, but Indian’s foundational values warrant such an
interpretation.
It would also give the apex court a clear constitutional solution in all cases where
supposed faith contradicts constitutional tenets of freedom and rule of law. Those
cases may pertain to divorces, or temples, or lynching, or eating habits. For the Indian
Constitution does not permit practices of degradation or rage.
This article was previously published on Scroll.in and is reposted here with kind permission
by the author.
LICENSED UNDER CC BY-NC-ND 4.0

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SUGGESTED CITATION Guruswamy, Menaka: Triple Talaq before the Indian Supreme
Court, VerfBlog, 2017/6/01, https://verfassungsblog.de/triple-talaq-before-the-indian-
supreme-court/, DOI: 10.17176/20170601-223349.
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