New Delhi: The Supreme Court of India has given a significant judgment declaring un-Quranic Triple Talaq (Talaq-ul-Bid’at) as ‘void’, ‘illegal’ and ‘unconstitutional’. It has been wholeheartedly welcomed by rights groups, Muslim religious organizations and also the ultra-right wing anti-Muslim outfits. The Chief Justice of India, further using his power under Article 142, directed the Union of India to form a proper legislation on the subject.
There is a lot of noise claiming the credit but the credit must go to the SC Bench of Justice R. Dave and Justice A.K. Goel which had taken suo moto cognizance and instituted a PIL ‘Muslim Women’s Quest For Equality’ in 2015 while delivering a very regressive judgment against Hindu women and girls. Because of this ‘judicial Muslim appeasement’, everyone ignored the plight of the deprived Hindu women and girls. The agenda was to rescue the Muslim women from the unjust and un-Quranic practice of Triple Talaq, and it became the foremost issue for 1.3 billion Indians.
But there are questions which are still unanswered. In 2002, Supreme Court had already declared one sitting instant Triple Talaq ‘invalid’ in Shamim Ara and Daddu Pathan divorce case, known as Shamim Ara v. State of UP, and nobody had challenged it, as a result it became a settled law. Yesterday, Justice Kurian Jospeh has said in the judgment that ‘…This Court in Shamim Ara v. State of UP and another has held, though not in so many words, that Triple Talaq lacks legal sanctity. Therefore, in terms of Article 141, Shamim Ara is the law that is applicable in India…’.
So, should we call it an ignorance and waste of nation’s time if Indian judiciary had settled the issue of Triple Talaq in 2002 itself? Why is this important ‘Shamim Ara law applicable in India’ not being used and propagated? Why don’t people, women rights groups, especially judiciary know it, because Justice R. Dave and Justice A.K. Goel have shown their ignorance while instituting PIL in this regard? And similarly it can be asked that how the recent judgement and proposed legislature will not get the same fate. We know that rulings and laws also have limitations.
We know that there are six major Islamic schools of thoughts, practiced by Muslims in India, and many of them are opposed to Triple Talaq and have various interpretations related to it. So, how can it be called a matter of all 180 million Muslims, who are not a homogenous entity? What is the reason behind for denying the diversity among Muslims? How can we close the gate of legal pluralism from our constitutional framework? Why prejudices against Muslims also prevail in Supreme Court?
The Muslims themselves are engaged deeply in resolving challenges like Triple Talaq and others. So, how this judgment will help them in their pursuit to ensure justice to Muslim women? Since December 2015, I was part of dialogues and negotiations related with this particular case, and I have closely witnessed many changes in the previous positions of many parties involved.
The change is coming from within, but I doubt that the current exercise has already sabotaged the efforts of the reforms. Those Muslims who used to listen the arguments against Triple Talaq and other wrong practices, would not hear many like us, because those championing the battle are ones who are responsible for the present environment of insecurity, discrimination and targeted violence against Muslims in India. The enabling laws make things better and try to achieve equality, but enforcing change by demonizing the victims themselves cannot ensure any good.
Many times the oppressed societies closed themselves for any new wind in the times of great crisis. They become more conservative because of their persecution, also because there are not enough efforts to acknowledge and empathise them, and opposing their oppression. And there is no doubt that Indian Muslims are passing through one of the dangerous eras of their history in India, where their survival as equal human beings are at the stake.
In newly proclaimed India, the Muslims are living in fear, and started hiding their being Muslim-ness, because propaganda, violence and political support for bigotry encouraged majority to reveal their prejudices more brutally, and those commiting hate crimes also have full impunity. Some Muslims have also started converting into Hinduism to ensure their survival.
The majoritarian winds are glorying everywhere, parliament, media, judiciary, are highly influenced with the new season, helping the conversion of secular India into Hindu Rashtra. Therefore, the whole Supreme Court exercise seems more of a political plot, rather than a sincere judicially reformative effort.
The Prime Minister Narendra Damodardas Modi who has abandoned his own wife Jashodaben Modi, is talking about equality to Muslim women, at the same time, his government is backing the marital rape. The same Supreme Court has gone against the spirit of the Constitution and has recently ordered NIA to probe the marriage between two consenting adults in Kerala, because of allegations by a third party.
Those who cannot give 33% reservation to women in assemblies and the Parliament are now championing the cause of liberation to Muslim women. There are many Muslim women who are struggling for justice but government and judiciary are not empathetic towards them. There is no justice to the Muslim women victims of 2002 Gujarat pogrom or 2013 Muzaffarnagar pogrom, who have been raped, many of them killed and burnt, the evidences were destroyed or manipulated. India is the country where Kausar Bano a pregnant woman whose womb was ripped open and the foetus dangled on the tip of a sword by the mob before she was killed in Naroda Patia massacre, has unworthy to get justice. Is she not a Muslim woman?
We live in a great constitutional parliamentary democracy where there is no justice to the Muslim women whether the Parveena Ahanger or Fatima Nafees and many like them whose sons have never returned back. The same case is with hundreds of Muslim half-widows, whose husbands never returned back. What about justice to them? Why India is not supporting the struggle of justice to Zakia Jafri whose husband Ehsan Jafri, a former Member of Parliament, was brutally hacked and burnt to death in the Gulbarg Society massacre.
We are proud of our greatness, and hear speeches asking people to dig out dead bodies of Muslim women and rape them. And it has happened twice in UP, and there is no single condemnation. There is no justice to these dead Muslim women. Why no justice to those Muslim women whose children or husband or family members are being killed in fake encounters; or are still languishing behind bars for several years in the fake terror charges.
What about the mother of Junaid Khan who was lynched in a train, or the family of Mazloom Ansari who was hanged in Lathehar. Almost one cow-related attack every week has taken place in 2017 thus far, as Modi government has allowed ‘holy’ mobs to attack and kill Muslims as though the state is a certified abattoir. What about women in their families? Are they not Muslim Women? The judiciary seems completely oblivious of the need to intervene to protect the rights of these Muslims. The judiciary has failed to take suo motu cognizance, and it has proven that Supreme Court is not just, as it pretends.
There is no future of a nation as a state, which denies justice, where poverty and marginalisation are being enforced, where stereotypes and prejudices become the guiding force, where majoritarian mobs rule, and hate and violence are being offered as food for satisfaction. The political drama in the name of Triple Talaq will do more harm to India by now overtly pushing itself towards homogenous hegemony of an ideology which has assassinated father of the nation Mahatma Gandhi.
The Supreme Court should not repeat the wrongdoings of the past. We still have not forgotten the role of Supreme Court during the Emergency which remains a blot. Supreme Court has to ensure the rule of law, which is the basis of our democracy.
Ovais Sultan Khan, is a social activist.
(The edited version of this piece has been published by Newslaundary and can be accessed at http://bit.ly/2g4y3ZO )