A woman facing violence may take various roads to justice – legal-illegal, justified-unjustified, civil, criminal, and constitutional. Shayara Bano decided to find another route by eliminating the root cause. Her writ petition before the Supreme Court (SC) seeking a ban on triple talaq, nikah halal and polygamy poses a challenge to the prevalence of religious personal laws over constitution, and threatens the power and position of the All India Muslim Personal Law Board (AIMPLB) as the sole custodian and interpreter of Sharia law in India.
Following her, Ishrat Jahan raised her head from Bengal and challenged Section 2 of the Shariat Act 1937, the law that gives AIMPLB its powers. Another woman emerged from Jaipur and posed similar challenges. Earlier this year, 50,000 Muslim women signed an online petition to abolish triple talaq and polygamy.
Media is flooded with opinion pieces, journalistic stories and personal narratives by Muslim women questioning several religious practices. There is an uprising. Angry Muslim women from all corners are coming together as organisations and associations to proclaim, “Enough is enough. We would no longer be treated as lesser humans by the self-appointed male custodians of religion. We are tired of adjusting, tip-toeing and manoeuvring around the male ego and privileges, making peace with small mercies. We shall take this fight to the street now, head on. This is a full-blown war.”
But Flavia Agnes wants them to slow things down and go easy on the whole ‘right to equality’ thing. She rather says that women do not rub equality at patriarchy’s face too much. Don’t risk getting isolated by the community, she says. Why rush to the SC? she asks.
Agnes, one of India’s most revered feminist, has expressed her discomfort with Bano’s petition, a stand that has left Indian feminists bewildered. It is getting increasingly difficult to digest her views but openly criticising her is some sort of feminist blasphemy.
In an EPW article published in May 2016, Agnes questioned the positive media coverage of Bano’s petition and maintained the same view in another piece published two weeks ago highlighting the “few positive aspects” in the affidavit filed by AIMPLB. She claimed the petition is useless and serves no purpose in helping Muslim women gain equality.
Citing various judgements and laws she argued that the negative media narrative that Muslim women are suffering under personal laws and need rescuing is not true. That there are several relief options already available to them and therefore Bano should not have rushed to SC; a move Agnes suspects would potentially “isolate her family that belongs to a conservative social milieu.”
One really hopes that a woman of Agnes’s stature would be able to keep legal nuances and personal attacks separate, but she couldn’t. She insinuated that the petition is a “strategy” by a “little-known lawyer” to gain “instant fame" effectively implying that Bano cannot think for herself and that it is the lawyer who is calling the shots.
She tried to portray Bano as a woman of insufficient intelligence making arbitrary inconsistent statements. She uses patronising statements like, “a victim of domestic violence cannot be criticised for her answers” and in that she falls into her own trap. She argues that Muslim women do not need rescuing but the underlying thought seems that it is only she who has the legitimate authority to rescue Muslim women, not some random lawyer with evil plans.
Agnes relies upon Muslim Women (Protection of Rights on Divorce) Act 1986 as the existing legal recourse available to Muslim women. The said Act merely gives women a few ‘reasonable’ and ‘fair’ entitlements ‘on divorce’ and doesn’t talk anything about the women’s right to divorce. Divorce in Sharia Law is unilateral. How could this law then have helped Bano and other petitioners whose demand is to end the practice of unilateral divorce by husbands at their whim?
Agnes calls the petition futile because the SC, in the Shamim Ara case of 2002, has already made instantaneous triple talaq invalid, unless the husband can prove “reasonable cause” and “prior reconciliation
But the question remains, why should women be first shown the door by triple talaq, and then fight it out in the court? How many women in India even have the means to access justice? In cases where the wife has no financial stability or family support, she would have no option but to accept a triple talaq.
Bano’s petition, however, might drastically change this power structure. Her success would send out a strong message to Muslim men and religious leaders that their very power and privilege is now illegal.
Comparing AIMPLB’s present response with the one previously held in the Danial Latifi case, Agnes puts emphasis on the seeming fact that the deeply misogynist AIMPLB is, after all, warming up to the sad and bitter reality that Muslim women are also humans. She thinks it is jolly splendid that the Board now ‘progressively’ urges Bano to approach the lower courts rather than settle disputes in some kangaroo courts like Darul Qazas. Unfortunately, far from being splendid, this sounds eerily similar to saying ‘triple talaq is at least better than killing the wife.’
Truth be told, Muslim women in India live in a dark isolated space, treated as lesser humans by their own community and disowned by the Constitution in name of religious autonomy. Agnes wants them to remain in their dark ghettos and not reach out to the SC, seeking Constitutional rights.
Through her various articles, however, Agnes fails to show what is there to lose by Bano’s petition? There may not be a significant change overnight but are things likely to get worse?
Through the annals of time, courts have altered the power structure and status quo through their historic judgments. If nothing else, a court order is a massive endorsement that women lives matter, homosexual lives matter, black lives matter. Petitions such as Bano’s or those by Trupti Desai’s, seeking equal right to pray, are symbolic wars and signpost moments for the women’s movement.
Sure, it is not an easy road and there are more pragmatic alternatives. But if few brave women chose to take the difficult road, how do they deserve anything else but applause is a question that Indian women would like to ask the honourable Madam Agnes.