The Big Story: Constitution vs customs

A Constitution bench of the Supreme Court last week began hearing challenges against triple talaq, a form of divorce in Islam that is extremely unfair to women. The practice considers a marriage to have been dissolved if the man utters the word “talaq” three times. As many Muslim women have pointed out, this leaves wives completely vulnerable to the whims of their husbands

But instead of testing the practice of triple talaq on grounds of gender equality, the primary question the Supreme Court will seek to answer through the case is whether this method of divorce is a fundamental aspect of Islam. The court has made it clear that if triple talaq was indeed an integral part of religion, little could be done about it.

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This has opened the doors for faith to take precedence over rights. This is exactly what happened on Tuesday, when the All India Muslim Personal Law Board, an non-governmental organisation, told the court that triple talaq was a 1,400 years-old custom with which the government had no right to interfere. Senior lawyer and Congress leader Kapil Sibal, who argued on behalf of AIMPLB, made a stunning comparison between triple talaq and the Ram temple movement. In the late 1980s, the Bharatiya Janata Party launched a violent campaign to have the Babri Masjid in Ayodhya demolished, claiming it had been built on the exactly spot where the god Ram had been born. On December 6, 1992, the party’s supporters tore down the ancient mosque. In court on Tuesday, Sibal claimed that while the belief that Ram was born in Ayodhya is never questioned, triple talaq alone was being disputed despite being a similar article of faith.

On the very face of it, the argument is deeply flawed. Whether Ram was born in Ayodhya has little to do with the everyday lives of Hindus. This belief does not manifest itself in the form of a discriminatory process that hurts one half of the population at a very personal level. Instantaneous triple talaq, on the other hand, robs the woman of the ability to safeguard her own interests in a marriage and renders her dignity irrelevant by privileging a man’s claims.

Secondly, there is no reason for a custom to be considered infallible merely because it is thought to be ancient. By claiming that the practice of triple talaq should be preserved simply because it is 1,400 years old negates the very idea of constitutional reforms. If the argument of antiquity is accepted, there is a very good case to be made for untouchability in Hinduism, a caste-based discriminatory process that was encoded in its scriptures.

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Allowing religious customs and laws to be deemed immune to constitutional morality undermines the very idea of a modern republic.

The Big Scroll

  • Here are six articles that will help you understand the controversy surrounding triple talaq. 

Punditry

  1. In The Hindu, A Faizur Rahman says triple talaq is not fundamental to Islam and that the government should go ahead and ban the practice. 
  2. Ejaz Ghani in the Mint argues that the Indian economy is heavily biased against women. 
  3. In the Indian Express, Ram Madhav says not being part of China’s “One Road One Belt” project will not affect bilateral relations. 

Giggles

Don’t miss

Anita Katyal reports on what the meeting between Congress president Sonia Gandhi and West Bengal Chief Minister Mamata Banerjee on Tuesday means.

“The Congress and the communists are no longer the dreaded political enemies of the Trinamool chief – the two parties have been virtually decimated in West Bengal. Instead, Banerjee has to contend with the rise and rise of the BJP, which appeared an impossibility in West Bengal till recently.

Though the Trinamool chief was a member of the BJP-led National Democratic Alliance when Atal Bihari Vajpayee was prime minister, Banerjee is now locked in direct confrontation with the saffron party, which has made deep inroads in West Bengal and has emerged as the chief challenger for the Trinamool Congress.”