How the triple talaq judgement was in many ways a wasted opportunity

The Supreme Court on Tuesday declared instantaneous triple talaq as unconstitutional amid much hype and attention. The ruling was made after five women – Shayara Bano, Ishrat Jahan, Afreen Rehman Atiya Sabri and Gulshan Parveen – and the Bharatiya Muslim Mahila Andolan petitioned the court.

Triple talaq was just one of the many evils that these women had to endure. All of them had also faced some form of violence, including forced abortions, physical abuse, forced separation from children and a poisoning attempt. Most of them also suffered varying degrees of emotional abuse and torture, including demands for dowry. What these women did, with the support of activists, organisers and lawyers, to soldier on, is nothing short of heroic.

But when Former Attorney General Mukul Rohatgi proclaims that the “judgement has restored the dignity of the Muslim women who can now march to progress like other citizens of the country”, he repeats a familiar and flawed narrative – of Muslim women needing to be saved and liberated from their religion, and sometimes even from themselves.

How do we “liberate” Muslim women when laws of this republic have been complicit in rendering them powerless? When we lynch their community members, kill their friends and families in riots and pogroms and empower those orchestrating this violence by turning a blind eye to it?

Moreover, while the judgement struck down instantaneous triple talaq, we are a long way away from true equality under law.

Double oppression

India is a republic of unequal citizens. Muslims women are doubly marginalised: first, as women and second as members of a community that has historically been on the receiving end of state-sanctioned violence, institutionalised oppression and economic and political discrimination.

In Marriage and its Discontents: Women Islam and the Law in India, Sylvia Vatuk chronicles the paternalistic nature of the administration of Muslim Personal Law and juxtaposes it with Islamic feminists, who are increasingly challenging the power of religious authority. The book, researched over 15 years, is about Muslim women’s fight for equity and justice and the challenges of confronting patriarchy right from within their homes, their communities and the society governed by laws of shame and reprisal. Whether these women and others like them will find justice because of this judgement remains to be seen.

For long, women’s bodies have been regarded as empty vessels, meant to contain the prejudices of our society. Our bodies and minds are sites of legislation that continue to uphold a communalised patriarchy.

On August 10, the Supreme Court declared that a sexual act by a man with a wife who is above 15 years of age is not rape, thereby sanctioning marital rape of even a minor. A few days later, the Supreme Court directed the National Investigation Agency to probe whether a marriage between two adults, that was annulled by the Kerala High Court was part of an organised “love jihad” campaign or a larger pattern where Hindu women are supposedly forced to convert and marry Muslim men, thereby denying the woman the right to marry the man of her choice.

When our most intimate, visceral parts of being – our right to love, desire and lust – have been criminalised, when rape is legitimised if it is within the ambit of a marriage, and when the country’s Apex Court sanctions such an encroachment of an individual’s agency, what equality are we in pursuit of?

Breaking it down

The triple talaq judgement, at 395 pages, is both dense and tedious. Lord Denning, in The Discipline of Law says, “Obscurity in thought inexorably leads to obscurity in language.” After reading the judgement, I wonderd if lack of clarity in language was a function of courage. Perhaps the density of the language is the law’s opaque response to justice?

The verdict was split 3:2 – indicating that the fight to reclaim individual freedom and equality enshrined in our Constitution entails a long treacherous road. Justices Rohinton Fali Nariman, Uday Lalit and Kurian Joseph ruled in favour of striking down triple talaq, while Chief Justice JS Khehar and Justice S Abdul Nazeer were in favour of staying the practice for six months, during which a new legislation should be worked out. Moreover, while the three judges in favour of striking it down agreed on the unconstitutionality of triple talaq, their reasoning was contradictory and far too fragmented to form an authoritative judgement of consequence.

The court’s refusal to authoritatively place the Constitution above religious practices is worrisome as India increasingly succumbs to the ideological project of the Hindu Rashtra. Our Constitution’s sanctity and purpose lie in the practice it entails. To quote political scientist Pratap Bhanu Mehta, “Constitutional morality requires that allegiance to the constitution is non-transactional” and it cannot be premised upon the religious practices and norms, ideologies of political actors, or the probity of India’s political class. Understanding the founding moments of India’s Constitution is critical in appreciating the framer’s extraordinary decision to disestablish religion from our laws.

When the courts state that “what is sinful under religion cannot be valid under the law”, which are the grounds that Justices Lalit, Joseph and Nariman cited to prohibit triple talaq, we are in a terrain that privileges religious beliefs and practices over our Constitution. Religion also considers abortion and homosexuality as sinful. Religious practices continue to sanction child marriage and until not long ago, allowed practices like Sati. Religion was used to justify and legally sanction slavery and apartheid. And for long, it has been the single most powerful patron of patriarchy. Therefore, looking at religion as the moral arc of our justice is both flawed and untenable.

Opportunity lost

Since the Narasu Appa Mali judgement of 1952, which exempted personal laws from the ambit of the Constitution, the courts have considered the uncodified personal laws (those that have not been passed by an Act of Parliament) as beyond the scope of the country’s supreme law book. The Appa Narasu Mali judgement thus created a parallel system of authority where personal laws are not subject to the authority of the Constitution, but to the prevailing beliefs and practices within various religious communities.

In the triple talaq judgement was an opportunity to reverse this. Justice Nariman even considered the problems of the Narasu Appa Mali decision and suggested that there is a need to examine and review the question of whether personal laws are subject to the Constitution. After rightly acknowledging its problems, he ended the lengthy discussion by allowing the flawed and lethal judgment to stand.

The Triple Talaq judgement could have been the right opportunity to hold unequivocally that no body of law can claim an authority above than the Constitution and that all laws in force must be subject to the discipline of the Constitution. The problem of justice is primordial and its search for equality and freedom remain elusive. Sometimes, justice is just inscribing the most evident and humane of things into the cannon. And at other times, it’s simply a gesture that repeats the banal in service of the political.

What is of grave concern is also that the minority opinion that gives personal laws the same standing as the fundamental rights. Chief Justice Khehar and Justice Nazeer in their dissenting opinion said that while triple talaq “may be sinful”, the court cannot interfere in personal laws which have the status of the fundamental right under the Constitution. When judges opine that personal laws are not within the purview of fundamental rights and can override it, we are on the path to a communalised constitution, that is farthest away from the secular ideals it was founded on.

This flawed and dangerous argument that seeks to define the rights of its citizens, especially women, based on their religion and not the guarantees of the Constitution could have easily become the majority decision, had one of the other Judges decided to vote with Chief Justice Khehar and Justice Nazeer. Lawyer Flavia Agnes rightly describes the triple talaq as a “low hanging fruit”. It is a practice so heinous, inhumane, and unconstitutional that it does require the reasoning of it being “un-Islamic” to be struck down – the powers of the Constitution should be enough. The judgement, therefore, remains a wasted opportunity.

We, The People of India, exist as a collective because of faith. Without this faith, there is no fidelity to the Constitution. And faith depends on the redemption of the constitutional project, the inherent belief that our laws will govern equally, will defend the people of this republic from the state, and above all make justice a possibility no matter what gods we pray to, whom we choose to love and how. In pursuit of that redemption, we have a long road ahead.

Suchitra Vijayan is New York based barrister, theorist and writer