Boost to gender equality
By Dr Oishee Mukherjee
The recent landmark judgement of the Supreme Court striking down the controversial Islamic practice of instant talaq, has given a big boost not just to Muslim women but to the gender justice movement in the country. The verdict has made India join the list of 19 countries that have already banned this practice. There is renewed hope that the argument that the practice of triple talaq being arbitrary and whimsical mode of ending marriage violated Muslim women’s fundamental right, may well be quoted in other cases of harassment face by women.
It can also be said that the apex court clearly stands out as an emancipator for Muslim women starting with the Shah Bano case, 32 years ago. The present decision is a reiteration of its decision in Shamin Aram vs State of Uttar Pradesh (2001), where the court effectively made instant triple talaq divorce void and illegal if reasons are not stated for talaq.
The ruling is expected to have a direct impact on Sunni Muslims who favoured this practice. However, they are still left with two other ways of securing divorce – ‘talaq hasan’ and ‘talaq ahasan’. Under the former, a Muslim man can divorce his spouse by pronouncing talaq once every month for three consecutive months. As per ‘talaq ahasan’, divorce can be given by pronouncing talaq during successive tuhrs (menstrual cycles) with no intercourse during the period.
One may mention here that this is not the first time that personal laws have been modified by the judiciary. The Kerala High Court had struck down provisions of the Christian personal law that denied women the right to a share of their personal parental property, without inviting any wrath or criticism from society.
The five Muslim women who had challenged the validity of triple talaq had made right to life and dignity guaranteed under Article 21 their main plank to request the apex court to junk this divorce weapon. They made right to equality and non discrimination guaranteed under Article 14 their secondary weapon to attack the constitutionality of triple talaq. However, the majority judgment relied on Article 14 as this form of divorce failed the test of reasonableness.
As is known, the apex court was confronted with two basic issues in the batch of petitions challenging the constitutional validity of the instant triple talaq divorce. One was whether this form of divorce could be considered as an essential part of Islam to get protection under religious freedom enshrined under Article 25 of the Constitution and the second, whether personal laws are laws within the meaning of the “all laws in force” under Article 13 (1) of the Constitution.
The majority judgment found that triple talaq cannot get protection under Article 25 as it did not come under the category of being essential part of Islam and hence in violation of the fundamental right to equality and right to life. Regarding personal laws or laws in force, it is obviously desirable that such laws have to get rid of inequality, discrimination and bias. Moreover, these have to fall within the framework of the Constitution. In fact, Justice Uday Umesh Lalit reiterated wht many Muslim scholars have been saying that triple talaq is “against the Holy Quran and consequently it violates Shariat laws”.
Undeniably, as has been argued in the recent past triple talaq is the most undesirable form of divorce, even in the eyes of those who deem the practice to be legal. The two judges, who gave the minority view that it requires legislation rather than a court verdict to remove triple talaq did too disapprove of this practice.
There may be criticism that the question of discrimination has not been elaborated explicitly in the present verdict, as many women organizations would have wanted. Questions relating to gender inequality affecting women, which indeed is a social problem, has probably been overlooked in the majority decision.
Many eyebrows were raised when the outgoing Chief Justice of India stated that the judiciary should “exercise absolute restraint, no matter how compelling and attractive the opportunity to do social good may seem”. This statement in fact should not really mean anything as the courts are supposed to examine issues from the perspective of law which, in fact, is an extension of social right. There have been umpteen cases where verdicts have been given keeping in mind the theory of “social good”. It is indeed difficult to agree with him that the judiciary has no role to play in transforming society and ensuring societal good.
The present verdict has thrown open the door for challenging the two remaining methods of divorce in the Muslim personal law on grounds of violation of the right to equality. This is likely to be challenged on grounds of discrimination against the opposite sex and women activists are expected to approach the apex court shortly.
The government is now considering the issue of uniform civil code after it gets a report from the Law Commission, which is currently formalising its recommendations. The BJP, which had set a target of implementing the code as part of its manifesto in 2014, is seriously thinking of moving ahead in the realm of gender equality by adopting the uniform civil code that is prevalent in most Western countries. Whether it does and how soon is the big question.
Though the path towards gender equality has taken a big stride, one has to agree that there are many laws for women in the country, most of which lack implementation. In fact, such implementation poses the biggest challenge. People at the grass-root level are not aware of these laws and regulations while even authorities at the base level are not sure of their implementation or sometimes do not want to enforce them due to vested interests.
There has to be a change in our outlook towards the opposite sex so as to allow women to live a life of equality and dignity. Laws and verdicts may come but unless there is sincerity in giving this section proper status in society towards achieving what could be said societal good, these judgments possibly won’t have much value. While political will is, no doubt, necessary, both the lower and higher bureaucracy has also to come forward. Both women and civil society organisations have to keep the heat on. —INFA