The Modi government’s second attempt to criminalise the practice of triple talaq after the Supreme Court declared the practice illegal is unlikely to have the approval of the Rajya Sabha, where the combined Opposition outnumbers the ruling coalition. Unless the government goes for a joint session of the Parliament to approve the Bill, the prevailing ordinance on the issue is going to meet an ignominious end. In other words, the Modi government cannot stop the heinous practice that has ended even in Muslim-majority countries like Pakistan and Bangladesh. And I doubt whether any non-BJP formation, if it assumes power after the next general elections, will ever dare to fight against the obscurantist elements among the Muslims who consider women to be inferior to men and hence unequal.
It is absurd when the opposition parties led by the Congress ask why should the State criminalise a civil act and that if a husband giving triple talaq goes to jail, then who will take care of the abandoned wife and the children? Are the divorced Muslim women taken care of by their former husbands for the rest of their lives? It is the same Congress Party which foiled any attempt in this direction. Remember what Prime Minister Rajiv Gandhi had done to Shah Bano ? Imagine if all the murderers or other hardened criminals like rapists plead that they must not be sent to jail as their wives and children need their support!
In this case, the Supreme Court has already pronounced the practice illegal. But despite the illegalities, if the practice goes on, it is because there is no adverse consequence of indulging in it. For instance, we all know that jumping red-lights on the roads is unlawful. But if there is no penal provision for jumping the red-lights, why should any driver care for traffic laws and stop at red lights?
Coming back to question of triple talaq, the real problem in our country is that we do not have a Uniform or Common Civil Code for every Indian, irrespective of his or her religious identity. In fact, it is one of the directives to government that is enshrined in the Constitution of India (Article 44). And this “directive” does not come in conflict with Article 25 of the Constitution of India that guarantees the freedom of religion, because Clause 2 of this Article separates religion from secular laws that removes some regressive religious practices. It clearly states that freedom of religion shall not limit the state from making any law “providing for social welfare and reform.” And then we have Article 14 of the Constitution, under which every Indian has equal rights; no one under this doctrine of equality can be discriminated in the name of background, caste and creed.
It is equally a misnomer that uniform civil law will disallow one marrying according to her own religion. What it does basically is that it ensures uniform rights to all in marriage, divorce, property rights and inheritance in a society that is essentially patriarchal. In fact, its intended beneficiaries are women in general. In that sense, the common civil code is gender-sensitive; it has nothing to do with religion.
It is the lack of political consensus that has led to the absence of uniform civil laws in the country. Political parties, particularly those who claim to be secular, are afraid that any move towards having common civil laws will disturb some minorities who constitute their biggest vote-bank. They do not realise that by arguing against Uniform Civil Code they are indulging in perhaps one of the worst communal practices that one can think of.
It is to be noted that apart from the Muslims, all other religions in India have undergone some social reforms or the other in their personal laws and practices. The Christians have had Indian Christian Marriage Act, 1872, the Indian Divorce Act, 1869 and the Indian Succession Act, 1925. In 1983, initiatives were taken by Bishops, clergy, lawyers and social activists to modernise several sections in these laws that were considered discriminatory. The Parsis have the Parsi Marriage and Divorce Act, 1936.
The Hindu civil laws (that apply also to the Sikhs, Jains and Buddhists) have been codified many a time by Parliament – the Hindu marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoption and Maintenance Act, 1956.
In contrast, the Muslim Personal Law has remained unchanged over the centuries. It is derived mainly from the Quran and the Hadith. The Quran is the main source book of Islamic laws, but it is to be noted that Muslim Personal Law “as it is known and practiced today was compiled more than a hundred years after the death of the Prophet.” Be that as it may, the fact remains that the Muslim leaders in the country and the All India Muslim Personal Law Board (AIMPLB) – a private organisation — have resented whenever the Supreme Court makes negative remarks on the “triple talaq” practice and the poor maintenance of divorced Muslim women. They say that “the country’s top court has no jurisdiction to undertake the exercise as the community’s personal law was based on the Quran and not on a law enacted by Parliament.”
In fact, drawing a line between a law enacted by the legislature and social norms dictated by religion, the AIMPLB has told the Supreme Court that “Mohammedan law is founded on the Holy Quran and Ahadith of the Prophet of Islam and this cannot fall within the purview of the expression ‘laws in force’, as mentioned in Article 13 of the Constitution,” and that “the personal law of Muslims has not been passed or made by a legislation.” For AIMPLB, Muslim personal law is inextricably interwoven with the religion of Islam.
However, AIMPLB’s logic that Muslim Personal Law is a religious issue and hence beyond the purview of man-made laws is deeply flawed. It is true that except Bangladesh and Indonesia, every Islamic country has a uniform law based on Sharia which applies even to non-Muslims. But it is also true that in virtually all other countries where Muslims live in significant numbers there is a uniform law — both civil and criminal. If Muslims living in the United States or France can be regulated by man-made uniform laws and yet remain proud Muslims, why should AIMPLB fear that Indian Muslims will cease to be Muslims once they come under uniform civil law? That this argument is all the more redundant when the same Indian Muslims are under the purview of the “man-made” criminal law. The Indian criminal law is not based on Sharia as is the case in many Islamic countries. How come Sharia is sacrosanct for civil laws but not for criminal laws?
Even in India, Goa still practices a common civil code, which has been the law since 1867 when the state was under the Portuguese colonial rule. Admittedly, this code allows some flexibilities to certain religious or customary practices that are debatable, but the point is that on principle there is one civil law for all the Indian citizens living in Goa. And the Muslims in the state are quite comfortable with it. In fact, when in 1981 some orthodox Muslims under the banner of Goa Muslim Sharia Organisation, supported by outside Muslim leaders, tried to apply the law of India to Goa (that would have taken the Goan Muslims out from the purview of Goa’s common law), the move was opposed successfully by Goan Muslim youth groups and Goan women’s associations. This being the case, are Muslims of Goa lesser Muslims than their counterparts in Uttar Pradesh?
It is often argued that the Muslim community itself will generate a process of change and reform in the course of time. As an argument, there are merits in it, but if one goes by the reality on the ground, there is not much hope. As we have already seen, there have been simply no reforms in Muslim personal practices over the last 100 years. In fact, if anything, the situation has worsened for gender equity and justice among the Muslims in recent years. Wahabism, with enormous Saudi petrodollars at its disposal, has penetrated India viciously. As a result, we see how in states like Jammu and Kashmir, Kerala and Telangana, the great culture of Sufism (liberal Islam in the subcontinent) has been badly challenged by Wahabi outfits that are segregating boys and girls in the madrassas, insisting only on the teaching of Sharia law in the madrassas, compelling girls to wear ‘Islamic clothes,’ including the hijab, and promoting rapid changes in the eating culture of places like Kashmir (before 1990s, hardly any Kashmir ate beef).
So what is the way out? In the prevailing political atmosphere of the country, it is simply not possible to legislate for a Uniform Civil Code. And that means that triple talaqs will continue despite their illegality. Therefore, the judiciary has to step in again, keeping in the tradition of “common law legal system” where “law is often developed by judges and courts when giving decisions in individual cases that have precedential effect on future cases.” Here, “the body of past common law binds judges deciding later cases to ensure consistent treatment and so that consistent principles applied to similar facts yield similar outcomes.” It is the Supreme Court that must add teeth to its own verdict of declaring the practice of triple talaq illegal.
By Prakash Nanda