No change worth having, and certainly nothing as potentially transformative as the striking down by the Supreme Court of triple talaq as a Constitutional means of divorce for Indian citizens who happen to be Muslim males, comes to fruition without the participation of hundreds and thousands of extraordinarily courageous, ordinary women and men over a significant period.
From the petitioners and lawyers who have argued tirelessly in the Shayara Bano case (bunched with four other petitions) on which the Supreme Court pronounced its verdict on Tuesday, to the Shah Bano case of the 1980s, there are many heroines and some heroes to fete.Equally, those from within the Indian Muslim community who dared put their heads above the parapet to argue against the vile practice of triple talaq and their supporters from the larger community of Indian citizens of different persuasions,both of which groups bore the brunt of the intellectual offal and personal libel dispensed by religious bigots and rent-seeking secularists puce with rage at this effrontery, need to be lauded.
The writing of these histories from below, as it were, could well be a worthwhile project for those academically equipped to do so. It would be a signal contribution to anation-building narrative independent of political parties that has at its corea muscular-liberal, secular-feminist ideal located firmly in an Indic civilisational framework. Such work, if you will forgive the hyphenations in the previous sentence and the ones that follow in the interest of positional clarity, is essential for our under-construction modern state and under-reform ancient nation to deal with its demons, past, present and future.
Having got that tricky bit out of the way, and with a respectful nod of gratitude to the five-judge Bench that by a majority verdict erased the blot of triple talaq from Muslim Personal law statutes and by extension from Indian jurisprudence, it may be useful to turn to the role of the ‘individual in history’ to understand how we got here. But before we do, it is important to state that this is not an attempt to peddle a binary — a history from above versus history from below sort of reductionist argument. On the contrary, the effort is to bring out in sharper relief the role of individual agency in mainstream political structures and the responsibility that devolves on those in public life with access to power.
For those who came in late, as the Phantom would affirm, two names stand out over the past three decades in the debate over the laws governing divorce for Indian Muslim citizens and its corollaries — Arif Mohamed Khan and lK Advani. On the surface, it would seem counter-intuitive to even attempt to put them in the same box. But such has been the tortuous journey of the secularising impulse from both within and outside the Indian Muslim community that the former, an articulate, youngish Congress high-flier from Uttar Pradesh in the 1980s, and the latter, in many ways the Bhishmapitamah among contemporary Indian politicians, who came into his own during the same period with a scintillating intellectual-organisational intervention in mainstream Indian politics, are a perfect fit in this context.
For, in their private moments if not emphatically in public, both leaders would surely accept that it was the 1985 Shah Bano verdict by the Supreme Court, its aftermath, and all that it implied forpower-based community structures and the nature of the nation-building effort from Independence that was a major turning point in their respective political-intellectual journeys, not to mention the lessons they learnt in realpolitik.
Arif Sahib, by all accounts, had made his way up the slippery slope of ruling party politics by the mid-1980s and was a Central Minister under Rajiv Gandhi before he sacrificed his career rather than support Congress pusillanimity in the Shah Bano case, when it enacted the Muslim Women (Protection of Rights on Divorce) Act, 1986, to dilute the Supreme Court verdict which had granted Shah Bano an absolute right to maintenance from her husband post-divorce by restricting the period of maintenance to be paid to only 90 days after the divorce. Given Arif Sahib was very much from what in retrospect may be termed the Genext of Congress leaders of the 80s led by Gandhi himself, it would have brought home to him with telling cruelty the toll taken by the warp and woof of minority politics in a secular country.
He has since supped with various political outfits but it would be fair to say his mainstream political career was over when he quit Gandhi’s council of ministers and became a lifelong target for the viciousness of the secularist-clergy combine. What did emerge from the detritus of a once-promising Congress career, though, was an inclusive, moderate and innovative thinker on politico-religious matters who is still around, speaking to those who will listen.
As for Advani, he has occasionally alluded including in his interviews to this writer over the years that it was the Rajiv Gandhi Government’s response to the Shah Bano verdict that crystallised his thinking on not just the lengths to which the Government had gone to appease the orthodox religious establishment for votes in that particular case but what it said about what was in effect an undeclared, differential citizenship model that had emerged post the 1960s in the name of secularism. In other words, the rent-seeking, patronage-providing construct which Rajini Kothari termed, albeit in a different context, the “Congress System” was very much a prime culprit in this regard too.What followed, was history. Though Advani was demonised relentlessly by his critics at the time, he almost single-handedly brought about a decisive shift in the national discourse on secularism.
The temptation would be to argue that with triple talaq now illegal in India both Arif Sahib and Advani have been validated in their own ways and ought to consider their respective journeys to have come full circle. But, to paraphrase Jawaharlal Nehru, the pledge has been redeemed very substantially but not wholly. From here on, the effort to establish a Uniform Civil Code in Indianeeds sober guidance and workable insights from political leaders, women and men of all communities. As the Supreme Court indicated in the Chief Justice’s minority opinion in the triple talaq judgment, it does eventually devolve on Parliament to fulfil its legislative function.
Naturally, the heavy lifting in this connection will have to be done by the current political leadership of India, primarily those in Government led by Prime Minister Narendra Modi. But both Advani and Arif Sahib may well have an important role to play, not by entering active politics again but by actively intervening in public discourse on the issue of a Uniform Civil Code.
(The author is a Goa-based journalist)