There is enough fuzziness in the legal definitions and justifications for triple talaq.
In 1986, Shah Bano had lost out her case for maintenance post-divorce when conservative and reactionary leaders led by the All India Muslim Personal Law Board (AIMPLB) and others browbeat liberals in the Muslim community like Arif Mohammed Khan and forced the Rajiv Gandhi government to bring in legislation to undo the Supreme Court verdict with regard to payment of maintenance or alimony. Thirty years later, five younger Muslim women from middle and lower middle class backgrounds from small town India have managed to beat the greybeards of the country’s Muslim community.
It is a revolution from within the community and the majority of Muslim women and men in India today stand with Shayara Bano, 35, with Aafreen Rehman 26, Gulshan Parveen 31, and Ishrat Jahan, 31.
It is not possible for the powers-that-be in the community to hold their sway. Muslims have grown larger, they are more confident and they cannot be blackmailed into submission by showing the red rag of saffron majoritarianism of the ruling BJP and its ideological mentor, the Rashtriya Swayamsevak Sangh (RSS). The BJP and RSS may pretend that they support the cause of Muslim women in a bid to outflank Muslims as a whole. But Muslims can differentiate between the need to set their own house in order as well as to fend off saffron tactics against Muslims to give up their distinct religious identity in the country.
There is no doubt that more than the legal nuances of the judgment could be debated, and even be challenged. But the main issue is the politics of perception. The Narendra Modi government is sure to proclaim it as a victory for its own politics by projecting the issue of the court holding triple talaq to be illegal as a clash between the Quran and the Constitution, as one between the Muslim faith and the secular order, and as a victory of the Constitution over the Quran, of secularism over faith. There is no need to push the question under the carpet. It needs to be faced squarely and fairly. It can be interpreted as the victory of secularism over religiosity. But this is so only at a very superficial level.
In Islam, marriage is a contract and not a sacrament. Divorce is an accepted norm unlike among orthodox Hindus and Roman Catholics. And the issue here is not about divorce. It is about whether a particular form of divorce — triple talaq — is valid. Chief Justice J.S. Khehar and Justice Abdul Nazeer have rightly concluded that it goes against the tenets of the Quran, which means it is un-Islamic, but they also conceded that the Hanafi school of Islam law allows for triple talaq, and that Sunni Muslims in India largely follow the Hanafi school. That is why they wanted the legislature to bring in the necessary changes in the law. The majority judgment of Justices Joseph Kurian, U.U. Lalit and Rohinton F. Nariman looked upon triple talaq as arbitrary and which closes the door to reconciliation, which the Quran requires. They have held Section 2 of the 1937 Shariat Act, which says that issues of inheritance, marriage, trusts and waqfs will be decided on the basis of Muslim personal law, to be invalid, and said that no arbitrary law can be allowed to stand in the light of the Constitution.
There are enough loose ends in the three verdicts — the minority one by Chief Justice Khehar and Justice Nazeer, and the majority comprising Justice Joseph, who has written a separate verdict, and that of Justices Nariman and Lalit.
The concluding remarks of all three judgments carry a note of a tentativeness. Justice Kurien Joseph says: “ I am also of the strong view that the constitutional democracy of India cannot conceive of a legislation which is arbitrary.” It is the position adopted by Justices Nariman and Lalit as well.
There is enough fuzziness in the legal definitions and justifications for triple talaq. It has been agreed by all that triple talaq might be legal but it is sinful, even according to the Hanafi school, which allows for triple talaq. That is why Justice Kurian Jospeh has stated the problem succinctly: “What is bad in theology was once good in law, but after Shariat has been declared as personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case.” All the five judges have bravely grappled with this question. They have not been able to reconcile the two in a logical manner. But they have taken solace in the fact that triple talaq is found to be unacceptable in religious terms whatever might be the juridical position.
It is necessary to remember this distinction in order to understand that the Supreme Court has not struck down triple talaq because religious law withers before secular law, but because there are too many contradictions and complications in the Hanafi jurisprudence and it cannot be reconciled with the Quran.
As a matter of fact, the Supreme Court has in effect said that the Quran is the true source of law and that the Hanafi law must bend its rules to follow the spirit of the Quran. And in secular terms as well, triple talaq was found wanting as it closed the door on reconciliation and a rethink and therefore carried elements of arbitrariness, which is unacceptable in secular law.
It would be wrong then for the opponents and critics of the BJP’s majoritarian politics to oppose the Supreme Court’s verdict under the wrong impression that it questions and undermines the religious identity of Muslims. It would be a real tragedy for an ostensibly secular party like the Congress to criticise the Supreme Court’s verdict and strengthen the hands of reactionary elements among Muslims once again.