Editorial by Jhuma Sen
Order of the Court
In view of the different opinions recorded, by a majority of 3:2 the practice of 'talaq-e-biddat'- triple talaq is set aside.
A 5-judge bench, advertised as a ‘diverse’ bench on media and elsewhere, with five judges belonging to five different religion, and yet united by a single gender, delivered the judgment in Shayara Bano and Ors. v. Union of India on 22nd August 2017. The Shayara Bano case known more popularly by its moniker, the ‘triple talaq case’ in its operative part invalidates the practice of ‘instantaneous talaq’ in a split 3:2 judgment. In what is one of the most complex and fragmented set of reasoning of recent times, the judges arrive at their conclusion by sometimes contradicting and sometimes agreeing with each other.The minority opinion delivered by the Chief Justice and the sole Muslim judge on the bench, Justice Nazeer, elevates personal law to the status of a ‘fundamental right’ and protects instantaneous talaq as an essential practice under Islam. While the majority invalidate the practice of instantaneous talaq, there is no majority in the reasoning leading to it, rendering the reading of this judgment a challenging process. The two sets of opinion comprising the majority invalidate triple talaq as unislamic (Justice Joseph) and as unconstitutional (Justice Nariman and Justice Lalit).
While a scrutiny of the judgment is merited by framing it in the broader themes of judicial interventions in personal law, it is equally important to reflect and place this judgment in the context of an emerging Muslim women’s movement and in the future of minority politics in a majoritarian government. In this issue of the Invisible Lawyer, we deliberate on some of the possibilities and challenges of this moment in history.
Moments in history are often the product of long journeys and fierce battles. Moments in history in the women’s movement are sometimes fought with the ‘law’ and sometimes against ‘law’. While the complicated relationship of law with feminism is not unknown, law remains often the inevitable shadow that faithfully accompanies all crusades waged against the state or the community, either as a friend or as a fiend. In this confrontation with the state or the community, with or without ‘law’, the tales of minority women become more complex, for they do not remain unmarked bearer of rights, but often the product of the community and the state. The three interviews in this series with Hasina Khan, the founder of Bebaak Collective, an umbrella of Muslim women’s groups, Noorjehan Safia Niaz, the founder of Bharatiya Muslim Mahila Andolan and Shaista Amber, the President of All India Muslim Women’s Personal Law Board, spell out the complexities of this battle while also reflecting and rejoicing in the hard-earned victory in the court.
Demonstrations against Muslim Women's Bill, 1986
The historical import of such moments is not complete without a reflection of cases past and especially when ‘ghosts’ of certain cases need to be exorcised to enable a vocabulary of non-discrimination and equality in our daily lives inside and outside of the courtroom.
[caption id="attachment_11822" align="alignright" width="212"] Solidarity with Shah Bano, Delhi, 1985[/caption]
Indira Jaising’s reflection of her journey as a feminist lawyer battling unequal laws and the cunning of judicial interpretation speak to this meaning. The significance of Shayara Bano in the myriad possibilities it holds to translate and transform the lives of Muslim women will be lost unless we glance at the untransformed and untranslatedbefore. Arif Mohammad Khan -former Union minister and now counsel for the All Indian Muslim Women Personal Law Board in Shayara Bano- had resigned from his party over his difference with how they handled the Shah Bano case. His interview in this issue speaks about this change between the ‘now’ and the ‘then’. Similarly, Sameena Dalwai’s stories of betrayal and hope of Hindu and Muslim women from the shadows of the past also point to the fact that women are compelled to fight patriarchy whether they belong to the majority or minority communities.
Husain Dalwai’s interview in this issue where he talks about the Dissolution of Muslim Marriage Bill he tabled in the Parliament last year, which in his words, ‘captures the spirit of the Constitution and Islam’ also seizes the possibilities of this moment. However, the significance of the moment is also to reaffirm the indivisibility of gender justice and minority rights. Albeena Shakil’s note cautioning the slippage between gender justice and minority rights in a majoritarian government is an important intervention at a time when the struggles of Muslim women are sought to be appropriated by a government that orchestrated a pogrom in 2002 Gujarat, gang raping Muslim women. While the failure of successive governments to address the question of equality for Muslim women for seven decades by legislating away hard earned gender just interpretations of law ended up in including ‘minority appeasement’ into the vocabulary of majoritarian politics, it also culminated in the emergence of a large number of Muslim women’s networks who started redefining their identity away from the dubious patronage of majoritarian politics.
A scrutiny of the judgment is mandated while we take stock of this case. A close look at the three separate opinions in Shayara Bano reflect, in some way, the three distinct themes that have often emerged at the confluence of personal laws and the constitution before the courts—the secular, the religious and the plural. While this editorial deliberately does not venture to explore the juridical consciousness that emerges at the confluence of religion and constitution, some of the articles in this issue shed light on some of these aspects.The splintered and complex reasoning demanded that the ratio of the case be explained in a separate note. Anand Grover’s note on the ratio of the case will hopefully put much of the confusions to rest. Ajit Wagh engages in an ecclesiastical reading of the judgment invalidating instantaneous talaq that was partially reflected in Justice Joseph’s opinion. Meher Dev reads the judgment closely to ascribe three different approaches-- Unjustified Non-interference, Unsuitable Intervention and Justified Intervention, the bench had taken to arrive at its 3:2 ratio. Warisha Farasat and Shadan Farasat, in their interview reflect on the judgment, its reasonings as well as some of the arguments that transpired during the proceedings. Lastly Saumya Uma takes stock of the gains and the lost opportunity in Shayara Bano.
The transformative appeal of law, and in this case, of a judgment, is also contained in the way it alters popular vocabulary and imagination. Its enabling appeal is in the empowerment and the sense of triumph it brings to its subjects. Hasina Khan in her interview states that the ripples of the judgment are already felt with Maulanas refusing to give divorce through this route. The two interviews with survivors reflecting on their struggles and their conviction in the ways in which this judgement may change the lives of Muslim women only confirm this transformative role the judgment may play.
The failings of the judgment however, are in its refusal to reason on non-discrimination. One wonders what more proof did the court need than five Muslim women survivors and Muslim women’s groups petitioning before it to realize that this case was about gender based discrimination; to allow the court a historical opportunity to set right its own less than stellar jurisprudence of gender justice.Muslim women’s quest for equality by reading justice and equality as the central tenet of religion will perhaps open the doors for a conversation between the idea of religion and constitution itself, to ask if they are constitutive of each other. Perhaps this question can be asked in an ‘appropriate case’ (to borrow from J. Nariman) in future. Or will the court opine in such appropriate case, that a constitutional court ought to be scripture-atheist and must consider the Constitution to be its sole gospel? In this mesh of futuristic possibilities and their limitations, will there be any space for an insurrectionary jurisprudence of ‘marrying’ the two or ‘never the twain shall meet’?
We hope you enjoy reading this issue.
Jhuma Sen teaches law at Jindal Global Law School. She writes on gender, courts and constitutionalism.