Triple Talaq: Muslims tread a cautious path as fears of a BJP vendetta on UCC lurk

The Muslim community will watch with apprehension as a five-judge Constitutional Bench of the Supreme Court gears up to examine the issues of triple talaq, nikah halala and polygamy during the summer vacation. Twenty four Muslim women’s organisations had written to Prime Minister Narendra Modi demanding reforms to the existing Muslim laws on divorce and polygamy, pointing out how several cases of  women being divorced even on social media platforms emerged.

The Supreme Court has clarified that it will not be looking at individual cases but rather at the practices of triple talaq, nikah halala and polygamy and whether these can be upheld under the right to religion; it will also examine whether the law should be changed in order to introduce a uniform civil code.

A bench headed by Chief Justice of India TS Thakur and comprising Justices AM Khanwilkar and DY Chandrachud had admitted the petition filed by Ishrat Jahan, a native of Howrah, along with a group of petitions filed by several Muslim women, women’s rights organisations and the Supreme Court’s suo motu PIL to consider whether certain practices of marriage and divorce under the Islamic personal laws amounted to gender discrimination.

The BJP government has of course long held the view that these practices violate the fundamental rights of women as guaranteed by the Constitution and that these practices do not comprise the essential practices in Islam. Law Minister Ravi Shankar Prasad has gone on record to say that in his opinion triple talaq should be abolished completely.

The activist groups who have filed the petition in the Supreme Court include the Mumbai based Bebaak Collective which is an umbrella organization of Muslim women’s groups. Hasina Khan, who founded the Collective, has strong views on this subject. She says, “My group has from the start taken a strong position against the practice of triple talaq . We also strongly oppose the absolute powers being given to men under the Muslim Personal laws. We are looking at women’s rights from a feminist perspective and our position on triple talaq is not dependent on whether or not the religious scriptures validate it; we oppose the practice anyway.”

Khan believes that the needs of Muslim women should be addressed keeping in mind their poor socio-economic condition. She quotes the latest Census data to show how Muslim women comprise the largest number of separated women. “Muslim women account for 75 percent of the women-to-men separated population (within their community) while Christian women comprise 69 percent of the separated population within their community,” Khan pointed out.

However, Muslim women’s groups are also apprehensive that the BJP’s attempt to politicize this entire debate could well result in their facing a fundamentalist backlash within the community. “We find the fact that the BJP is trying to link this entire issue to the demand for a Uniform Civil Code very problematic. I find the questionnaire prepared by the Law Commission extremely problematic. It is obvious the government wants to open a debate on the entire issue of UCC but this is not the way to do so, especially since they want the answers in a `yes’ and ‘no’ format.”

Meanwhile, a signature war has erupted in the community both in support of and against the ‘Islamic’ way of divorce.

The All India Muslim Personal Law Board has reportedly launched a nationwide drive to collect signatures of people “to save and protect Shariat Laws” related to marriage, divorce and inheritance. Women’s rights groups have come up with a counter-campaign. At least two organizations have come forward to complain that Muslim women are being forced to sign a form supporting ‘triple talaq’.

Lucknow-based Zafaryab Jilani, member of the All India Muslim Personal Law Board and former additional solicitor general of Uttar Pradesh, believes that reform of the personal laws must come from within the community itself. He believes the government needs to hold a referendum on the issue, especially since, he claims, ninety percent of Muslim women support the Sharia law. He maintains the move to ban triple talaq is “a conspiracy to impose a UCC."  “The Muslims will not tolerate any interference in their personal law,” says Jilani.

Minister of Parliamentary Affairs Mukhtar Abbas Naqvi reiterates the same point of view claiming, “The need of the hour is to debate the issue of a UCC across all forums in order to create a consensus. Such a debate must take place at the grassroots level. We must understand all the divergent viewpoints before any draft can be prepared. No comprehensive debate has taken place on this subject in the last one year.”

The Law Commission is in the process of holding consultations with different stakeholders including the personal law boards of the Muslims, Christian, Sikh, Buddhist and Parsi communities. However, the NaMo government’s strong position on the issue of triple talaq is well known. They believe that their stand is further validated by the example of over 20 countries including Saudi Arabia, Pakistan, and Indonesia who do not allow instant triple talaq.

The All India Muslim Personal Law Board (AIMPLB) had informed the Supreme Court in early September 2016 that “personal laws cannot be re-written in the name of social reforms,” insisting that “personal laws cannot be challenged as it will be violative of Part III of the Constitution.” Their stand is that issues of personal law are for Parliament and not the Supreme Court to decide. “The Uniform Civil Code is a directive principle and not enforceable. Personal laws are protected by Article 25, 26 and 29 of the Constitution as they are acts done in pursuance of a religion.”

Ranjana Kumari of the Centre for Social Development has been watching these developments with some consternation. She says, “Whatever verdict the highest court may give, ultimately a decision on this matter will require an amendment by Parliament. It would have been better for the government to have adopted a comprehensive approach to this issue rather than tackle it piecemeal.”

Kumari regrets that though in the 1970s and early 1980s, some women’s groups had pushed for a Uniform Civil Code to ensure that discriminatory laws in the areas of marriage, divorce, inheritance, guardianship and adoption be done away with, this was not done. “When the Status of Women Report was placed before the government way back in 1975, there was near unanimity on the need for an all embracive Uniform Civil Code which would look at the contentious issues of marriage, divorce, guardianship, inheritance, custody of children and adoption. Unfortunately, that opportunity was missed by us,” Kumari recalls.

This unanimity has now ended. Not only are political parties tugging in different directions but women’s groups and legal luminaries fear that the present government may push through a `common Hindu code’ in the guise of a UCC.

Supreme Court lawyer Rebecca John believes that Article 44, included in Part 4 of the Indian Constitution, lists the Uniform Civil Code as one of the Directive Principles which cannot be enforced by any court. “There is an overall thrust to have a common Uniform Civil Code, but it is a fallacy to think that the Hindus have a common law and it is this existing law of north India which must be codified into a Uniform Civil Code,” says John.

“This is part of the bullying of north Indians against other Hindu communities,” she feels. Elaborating, John points out, “The Hindu Marriage Act and the Hindu Succession Act are based on practices of north India which received primacy over the eastern and southern states. Are Hindus willing to give up the beneficial aspect of the Hindu Undivided Family which has been used for tax exemption purposes?” she asks.

Kancha Ilaiah, a Dalit activist and writer, is also skeptical about the reform agenda being pushed by the government. “The UCC questionnaire pretends to ask questions about Islam, Christianity, and Hinduism but it is obvious they are targeting Islam. There are so many issues within Hinduism including widows being given the right to remarry. The issue of polygamy affects everybody. This entire UCC debate was ignited when Vajpayee was prime minister. My question is why does the BJP want to create a crisis for Muslims every time they are in power?” Ilaiah asks.