The Supreme Court has spoken on triple talaq but Muslim Personal Law remains a ticking bomb

The Supreme Court’s majority decision striking down triple talaq hasn’t defused the ticking bomb that Muslim Personal Law has become over the decades. This was evident in the mad scramble to declare that the Supreme Court has held triple talaq to be unconstitutional. In reality, though, of the three judges who delivered the majority verdict, only two – Justice RF Nariman and Justice UU Lalit – held it unconstitutional. The third – Justice Kurian Joseph – invalidated triple talaq because he found it un-Islamic.

This is why senior Supreme Court lawyer Saif Mahmood, whose book – Muslim Law in India and Abroad – was cited in the Supreme Court judgement, said:

“What the majority judgment has held is that the practice of Triple Talaq (Talaq e Bidat) is illegal, un-Islamic and violates Islamic law itself. In that sense, the Supreme Court has actually recognised that true Islamic law is progressive and does not violate women’s rights; only the un-Islamic practice of triple talaq does.”

It, therefore, still leaves open the question what position political parties should take on Muslim Personal Law, which is portrayed to be out of sync with modernity and gender-insensitive. Should the impulse for reforming Muslim Personal Law come from within the Muslim community, as it certainly did on triple talaq? Do Muslims have the right to follow at least those aspects of their personal law which constitute the essential elements of their religion, regardless of whether or not it conforms to the ideas of modernity?

Political questions

These questions are not only religious in nature, but also political. After all, most Muslim women activists who defied the pull of patriarchy to campaign vigorously against triple talaq did so from within the tradition, claiming that triple talaq, or talaq-e-bidat, was in violation of the Quran and Islamic principles. Will they now also opt for reforming those aspects of Muslim Personal Law which emanate from the Quran and the Hadith?

This will likely be the hope of the Bharatiya Janata Party, judging from its jubilant response to the triple talaq verdict. It drowned out the voices of almost all political parties which too welcomed the judgement. This is understandable. Weeks before Uttar Pradesh voted in the assembly elections earlier this year, BJP leaders, including Prime Minister Narendra Modi, claimed they were on the side of Muslim women in their battle for justice that was denied to them because of the invidious triple talaq practice. The judgement, in a way, vindicates them.

No less than Prime Minister Narendra Modi tweeted,

The BJP president Amit Shah thought the judgement was a step towards building a New India. Madhya Pradesh Shivraj Chauhan was quoted as saying that triple talaq had been an impediment to growth and exhorted the Central government to frame laws, as was asked by the two judges – Chief Justice JS Khehar and Justice S Abdul Nazeer – who together dissented from the majority decision.

To these political stalwarts, Mahmood has a word of caution:

“Politicians who are rejoicing over the apex court having come down on the Shariat with a heavy hand need to hold their horses. Far from doing this, the apex court has actually fallen back on and relied upon the Shariat itself to accord justice to Muslim women.”

What the court hasn’t done, the BJP might do. Using the legislative route, it could heavily rewrite Muslim Personal Law. The judgement could also become a trigger for framing and implementing a Uniform Civil Code, which has always been on the Hindutva brigade’s agenda.

The irrepressible BJP MP Subramanian Swamy was quick off the block. “It’s a huge step towards women empowerment,” he was quoted as saying. “The next step of the government is to bring Uniform Civil Code.” Is this what the Madhya Pradesh Chief Minister too had on mind when he asked the Central government to pass a law?

Uniform Civil Code?

As such, the demand for a Uniform Civil Code has a growing number of supporters, not least because the Supreme Court has periodically referred to it. It first voiced it during the Shah Bano case in 1985. A decade later, it reiterated the need for the UCC in the Sarla Mudgal case, then in John Vallamattom and Another v Union India in 2003, and lamented its absence in 2015 in ABC vs The State (NCT of Delhi).

In “Uniform Civil Code: A Heedless Quest”, a piece published in the Economic and Political Weekly, Alok Prasanna Kumar, then of Vidhi Centre for Legal Policy, noted,

“It is obvious that the Court has absolutely no idea what a UCC looks like and what such a code should do… The claim that ‘since Hindus are governed by a uniform law, why not everyone else’ falls flat at the very first step – the law is not uniform for all Hindus in the first place.”

But legal contradictions have scarcely ever restrained political parties from launching campaigns on controversial issues, certainly not the BJP, which has had its footsoldiers mount pressure on Muslims on issues such as cow-slaughter and yet pose as saviour of their women. Given that the triple talaq issue played a role in polarising Hindus and Muslims in Uttar Pradesh, the BJP could, for starters, legislate on Muslim Personal Law on the argument of weighing in in favour of gender justice.

This is more so as Chief Justice Khehar and Justice Nazeer, in their minority judgement, explicitly wanted Parliament to enact legislation on the triple talaq issue. Though their opinion is infructuous as the majority verdict will now prevail, they have certainly reinforced Parliament’s right to enact legislation on Muslim Personal Law, which it anyway enjoyed. But Parliament seldom exercised this right as it did not wish to interfere in the religion-based laws of the minorities.

But does the idea of gender justice have to be balanced with that of freedom of religion? Yes, argues Dr Faizan Mustafa, vice-chancellor of Nalsar University of Law, Hyderabad, who has written many insightful pieces on triple talaq during the time the Supreme Court was hearing the petitions on it.

Dr Mustafa said,

“Even the majority (Chief Justice Khehar, Justice Nazeer and Justice Joseph) said that Parliament while enacting laws on gender justice should keep in mind the citizen’s freedom of religion. It held triple divorce as void on the basis of doctrine of essentiality because three judges found triple divorce as innovation in Muslim law and something which is contrary to the Quran.”

The road ahead

But the BJP ventures where others don’t, largely because it is politically advantageous to it. The triple talaq judgement will have bolstered the country’s mood for uniformity in personal laws, if not for the Uniform Civil Code itself. This might encourage the BJP to revise and redefine these laws, much to the chagrin of Muslims. The angrier the community will get the more votes of Hindus the BJP will stand to poll.

For sure, the striking down of triple talaq is a great victory for Muslim activists. They have overcome the menace of patriarchy which afflicts all religious communities. That said, they will come under pressure where they stand with regard to other aspects of Muslim Personal Law that govern, say, marriage and inheritance.

Though Muslim women were given a share in ancestral property centuries ago, a right largely accorded to Hindu women post-Independence, it isn’t equal to the share of Muslim men. Will Muslim activists, therefore, demand a change in inheritance rights, directly derived from the Quran? Will they have the right of Muslim men to marry four wives annulled, citing the impossibility of measuring to the Quranic requirement that allows four marriages only when a husband can love each equally?

Even as the BJP appropriates the Supreme Court’s verdict on triple talaq as its own, it might seem a delicious idea to ask why it doesn’t appeal to the Supreme Court to annul laws proscribing cow-slaughter. After all, like personal laws, these too draw their justification from religious beliefs, often dressed, rather hypocritically, as an economic argument. Or, for that matter, why doesn’t it speak of bringing about a degree of economic uniformity among all religious communities – for instance, grant reservation to Muslims, which on many economic indices lag behind even the Dalits?

Such steps the BJP will not take because it would it alienate its Hindu votebank. And so it will likely continue to ensure that Muslim Personal Law not only remains a ticking bomb, but also a more lethal one than before.