Why Indian Muslims had to wait so many decades for the ban on triple talaq

The landmark judgment of the Supreme Court of India on triple talaq is a progressive step towards building a more egalitarian, fair and gender just India. The majority verdict has termed the instant triple talaq ((talaq-e- biddat or heretical and irregular mode of divorce) void ab initio (illegal at the outset) while describing the practice as ‘manifestly arbitrary’. The majority view also unequivocally declared that the instant triple talaq went against the basic tenets of the Holy Quran and violated the Islamic law or the Shariat. The minority verdict had asked the government to frame a law within six months on the instant triple talaq. It also issued an instant injunction on suchpractice for the next six months till the new legislation is enacted along. However, the Supreme Court has issued a caveat that failing such a law, the injunction would cease to operate.

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The practice of instant triple talaq has been generally followed by the Hanafi school of Sunni Islam in India, which forms a substantial majority of the Indian Muslims (about 90 per cent of the Sunni Muslims in India according to the Court judgment). Those who claim to be outside the four main schools of Sunni Islam, like the Shia Muslims and the followers of the Ahl-i-Hadith tradition do not follow the practice of instant triple talaq. In this respect, the Supreme Court judgment, citing the cases of Pakistan and Bangladesh, both of which banned instant triple talaq (Pakistan in 1961 and Bangladesh amending the 1961 Ordinance in 1985) while an overwhelming majority in these countries following the Sunni Hanafi School is extremely significant.

The Court judgment has rightly pointed out that the practice of divorce through ‘talaq-e-biddat’ was ‘prevalent in states having sizeable Muslim populations’, but it has been ‘statutorily done away with...by legislation, the world over, in Islamic, as well as, non-Islamic States’,including Turkey, Egypt, and Afghanistan where the majority of the Muslims follow the Sunni Hanafi school.

This particular judgment has long term implications for further reforms of several patriarchal aspects of the Muslim Personal Law. For instance, in matters of alimony for divorced Muslim women, polygamy, methods of remarriage (nikah halala) and inheritance. While in many Muslim countries, such a horrible practice has been banned long ago, the Indian Muslims had to wait for so many decades and that too after a judicial intervention to outlaw this inhumane practice of instant triple talaq, legitimised by the Muslim Personal Law (Shariat) Application Act of 1937.

From the 1920s to 1970s, a significant part of the Muslim world was governed by progressive and secular forces until they were challenged by the rise of Islamism in the last four decades. By contrast, in India, the progressive-secular discourses were never a dominant political discourse among Indian Muslims. Before the partition, barring few exceptions, progressive political articulation was never dominant among Indian Muslims. The partition led to further dwindling of the prominent progressive voices among the Muslim community as some emigrated out of India. Although,Indian Muslims never had a dominant progressive political articulation within the community throughout India’s postcolonial history, yet they have largely favoured secular political formations while distancing from the communal political forces of both majoritarian and minority variety.

The absence of a progressive political leadership among Muslims in India has created conditions in which the theo-political identity of Indian Muslims has been foregrounded at the cost of class issues (education, health, employment) and citizenship identities by the conservative section of the Muslim community. This conservative section among the Indian Muslims has actually taken advantage of the silence of the silent majority of moderate Muslims, who might diligently follow Islam but are not vocal enough to protest against the misuse and misinterpretation of the Islamic religion by the conservatives on many occasions.

Although one can notice a crisis of progressive political articulation among the Muslims in India, it is certainly not absent from the Muslim community. In the past, there were progressive voices who protested against the injustices of Shah Bano and today, one can see the activism of Bharatiya Muslim Mahila Andolan, Bebaak Collective, Awaz-e-Niswaan, Sahiyar, Muslim Mahila Manch, Pehchan, Muhim, Parvaaz Sangathan etc who joined the cause of the five Muslim women petitioners—Shayara Bano, Gulshan Parveen, Ishrat Jahan, Afreen Rahman and Farha Faiz in this case against instant triple talaq. These groups are run by Muslim women and have been involved in numerous struggles for dignity, gender justice and gender equality in the last three decades.

The political implication of this judgment is too obvious. No matter how many normative appeals are being made for not politicising the Court's judgment, the fact of the matter is that it could be a talking point of a pragmatic and calculated political campaign of the BJP in future elections. Already, the BJP spokespersons are reminding about the Rajiv Gandhi led Congress government’s capitulation before the conservative Muslim leaders in the Shah Bano case, regarding alimony for divorced Muslim women during 1985-86, in contrast to their public support to this issue along with the BJP led central government’s supporting affidavit in the case against triple talaq.

Although the BJP can certainly celebrate this judgment, the track record of the RSS (BJP’s ideological mentor) and the Hindu Mahasabha is abysmal as far as the Personal Law reforms in the form of the Hindu Code Bill is concerned. Both the RSS and the Hindu Mahasabha along with some major Congress leaders vehemently opposed the Hindu Code Bill. The present judgment has clearly denied an indisputable provision to bring in a law on Muslim personal matters while setting aside the triple talaq issue from the rest of the Muslim Personal Law. But this historic judgment has definitely created conditions for further reforms of the Personal Laws for both Muslim and non-Muslim citizens of the country.

If a radical initiative for Personal Law reforms or uniform civil code is being made in the future then, it must be preceded by democratic forms of wider public debates, followed by referendum among each major religious community in the country. Neither the All India Muslim Personal Law Board nor the Sangh Parivar represents the Muslims and Hindus respectively. If laws are meant to govern the lives of the citizens then the citizens must decide how they should be governed.