Supreme Court’s verdict on triple talaq can be a turning point for both the minority community and the concept of gender parity. let’s keep our fingers crossed
last week, a five-judge Constitution Bench of the Supreme Court completed its hearing of a batch of petitions challenging the constitutional validity of triple talaq.
While India awaits the court’s judgement, the circumstances surrounding this case itself offer hope that after a long, long, time there is some movement towards ensuring that Muslim women, like all other citizens, will get to experience in full measure, the safeguards provided in the Constitution specially in regard to equity and equality.
The reasons for such hope are as follows: Despite the oppressive social environment in which they live, thousands of Muslim women are openly coming out against triple talaq and are demanding a formal end to this obnoxious, one-sided system of divorce. Second, unlike the Congress Governments of the past which lacked the will to assert the supremacy of the Constitution when it came to personal laws, the Narendra Modi Government has taken a firm stand to uphold core constitutional values. It has said before the court that “gender equality and the dignity of women are non-negotiable, over-arching constitutional values”. It has asked whether in a secular democracy, religion can be a reason to deny equal status and dignity, available to women under the Constitution. And, while personal laws serve the purpose of preserving diversity, can they undermine gender justice, which “is a constitutional goal of overwhelming importance and magnitude”. This is in tune with the statement which Prime Minister Narendra Modi has made more than once: The Constitution is the country’s supreme text.
Third, there is a growing national mood to end anachronistic practices and celebrate the freedoms that are enshrined in the Constitution. The mobile revolution (Indians own 1,200 million cellphones); the emergence of the social media and millions of close knit WhatsApp groups which have triggered an information revolution that the patriarchs can never block; and most importantly, the rising literacy levels among women including Muslim women, have all contributed to a situation where in some correction may be possible in respect of the terrible mistakes of the past.
Thanks to some concessions made at the time when the Constitution was written and the exigencies of electoral politics over the last 70 years, some of the most demeaning and unconstitutional provisions in Muslim Personal law, have been dignified as ‘law’ and allowed to override key constitutional provisions that guarantee gender equality, equality before law and equal application of laws and right to life and dignity.
Over the last seven decades, problems such as these have festered for a long time because of the absence of clarity on where and how to fit minority rights and religious rights into the overall constitutional scheme. The problem dates back to 1946. Eight months prior to the partition, the Constituent Assembly had begun work to draft a democratic Constitution for undivided India. The Muslim league wanted elections be held on the basis of separate electorates for the Hindus and the Muslims.
But, even before this exercise could get anywhere, partition became a reality and most of the leaders of the Muslim league moved over to the separate Muslim State they wanted —Pakistan. But, some stayed back.
When India’s Constituent Assembly resumed its work, the leaders of the Congress were hoping for some sanity within the Assembly as they picked up the threads to write a democratic Constitution. But they got the shock of their lives when Pocker Sahib, a member from Tamil Nadu, demanded that elections to the Central and Provincial legislatures should be held on the basis of separate electorates. He argued that “non-Muslims would not be able to understand the needs of the Muslim community and that, therefore, the Muslims should constitute a separate electorate”. leaders like Sardar Vallabhbhai Patel and Govind Ballabh could not believe their ears. A fresh demand for a separate electorate was emerging a fortnight after the creation of Pakistan! Patel threw his hands up and said, “In this unfortunate country, if separate electorate is going to be persisted with even after the division of the country, woe betide the country. It is not worth living in.”
The leaders stood firm and nipped this mischief in the bud, but they did not remain firm on the issue of a common civil code. Thanks to sustained resistance from Muslim members, the idea of a common civil code was put in cold storage and moved to the Chapter on Directive Principles of State Policy. Muslim members objected to this as well. But BR Ambedkar refused to yield. He said the state had the right to legislate on issues like marriage and succession. But, the fact was that despite creation of Pakistan, leaders of the Congress buckled under the pressure of the so-called representatives of the Muslims, who chose to stay back, and deprived India of a common civil code that would have ensured that all personal laws were within the ambit of the Constitution of India’s core ideals.
Thereafter, within decades of independence, competitive electoral politics led to the appeasement of Muslims, which is reality was reduced to appeasement of the mullahs.
The Congress, since the days of Jawaharlal Nehru, mastered this art and treated the Muslims as a vote-bank. It constantly appeased the mullah by signalling to him that his personal laws would never be touched and that the common civil code was just a chimera. later, other political parties got into the act and vigorously pursued the politics of mullah appeasement. As a result, in 1963, when the Union Government wanted to set up a committee to examine the changes in the Muslim Personal law in Islamic countries, there were vehement protests from the clerics and the idea was abandoned. In the later decades the mullahs forced Indira Gandhi to abandon a move to bring in a common adaption law. They forced Rajiv Gandhi to bring in legislation in Parliament to undo the Supreme Court’s historic verdict in the Shah Bano case, which gave relief to a divorced Muslim woman in distress.
As stated earlier, the circumstances are now fortuitous. This case, therefore, can be the turning point. let us keep our fingers crossed!
(The writer is Chairman, Prasar Bharati. Views expressed here are personal)