The Allahabad High Court on Thursday called triple talaq 'unconstitutional' and added that 'no personal law board is above the Constitution'. In doing so, it reaffirmed the Centre's stand on the issue in Supreme Court recently.
Arif Mohammad Khan, minister of state for home affairs in the Rajiv Gandhi government, is a known proponent of reforms in the Muslim community. In 1986, he had parted ways with Congress over differences with the former prime minister on the issue of the Shah Bano case and the passage of Muslim Personal Law Bill, which was piloted by Gandhi in the Lok Sabha.
With the Allahabad HC's observation, the issue of 'triple talaq' and the desirability of uniform civil code (UCC) have once again been brought up for debate. Firstpost spoke to Khan, to uncover how the situation has changed in the last three decades and what he feels will be the future of the fight to help Muslim women get their due and their right to equality.
FP: History seems to be repeating itself. Do you think that the Allahabad High Court’s observation (not binding as order) on triple talaq is a sequel to the unfinished agenda of the Shah Bano case?
AMK: Well, if inequality and injustice persist then it will continue to provoke the protest. Triple talaq is an enormity, it oppresses and dehumanises Muslim women. In 1986, the level of awareness was low and hence people feared to speak out. Now, the situation has radically changed with rising levels of education and awareness, particularly of Muslim women.
In fact, it is gratifying to note that today the Muslim women and their organisations are valiantly fighting against the cleric stranglehold. The Quran, in verse (7.157), delineates the prophetic mission saying: “He releases them from their heavy burdens and the yokes that are upon them”. It is the duty of every believing person to liberate himself or herself from these middlemen of religion, and do the divine will.
FP: Can you elaborate on the differences in the scenario during the Shah Bano case and in today’s scenario? Was Rajiv Gandhi better equipped to deal with fundamentalism than Narendra Modi, who has the image of a Hindutva poster boy?
AMK: There is hardly any difference between 1986 and now. The Shah Bano case was essentially the fallout of a triple divorce. The husband had deserted 65-year-old Shah Bano and when she sought relief under section 125 of the CrPC, the husband instantly divorced her.
Even the All India Muslim Personal Law Board (AIMPLB) describes this instant divorce as Talaq Bidat. Bidat in Arabic means an innovation, something that is not part of the original scheme. Their own book describes it as “permissible in law but sin in religion”. It is strange that they are putting up a fight in defence of a sin.
I do not like to compare personalities. Rajiv ji was a modern man, his sympathies were with Shah Bano and other suffering women. But being a gentleman, he was open to pressure. My understanding is that it was not the pressure of the AIMPLB or politicians like Najma Heptullah and ZR Ansari that worked on him. What really tilted the balance in favour of AIMPLB were the views of senior Congress leaders like Narsimha Rao, who rightly said that they cannot assume the mantle of social reformers of the Muslim community and take the risk of losing their constituency.
On the other hand, today, the government has taken a view that is consistent with the provisions of the Constitution. The constitution says that all laws in force in the territory of India immediately before the commencement of the Constitution in so far as they are inconsistent with the fundamental rights shall be null and void.
FP: In a diverse society like India, how prudent is it to let personal laws decide the social conduct of a community?
AMK: We have this great tradition of embracing diversity right from the inception of Indian civilization. A great many years ago, India had declared: “The Truth is on and those who know describe it variously”.
It is in our DNA that we don’t fear diversity, rather we celebrate diversity. But in the name of diversity and pluralism, it is not permitted to perpetuate rules and customs that oppress a section of citizens. Respecting diversity does not mean to continue with rules and customs that perpetuate gender injustice.
FP: If one recalls history, you parted company with Rajiv Gandhi on the issue of Shah Bano? Do you believe that the Muslim leadership would have been much more moderate and liberal if Gandhi had not reversed the Supreme Court’s order on Shah Bano?
AMK: It is meaningless to hold Rajiv ji or the decision in one single case responsible for the extremist and conservative attitude of the so called leadership. The curriculum that members of organisations like AIMPLB go through and the religious norm of Taqleed that they adhere to can produce only extremists and conservatives.
It is the liberals and moderates who must be blamed for tolerating this state of affairs and not raising their voice against the cleric stranglehold over the community.
FP: How true is the impression that the AIMPLB represents the entire Muslim community across the country?
AMK: This question can be answered only by those who consider them as the representatives of the community. My feelings are different. I feel sorry for them. Recall 1986, they protested against the Supreme Court judgment saying that the liability of the Muslim husband is confined to three months period of Iddat alone. After Iddat, the law cannot ask the Muslim husband to pay anything to his former wife.
Finally, the government accepted their demand and agreed to enact a law and the then Chairman of AIMPLB said in his autobiography that it was only after his approval that the final draft was introduced in Parliament as a Bill, which was later enacted by the Parliament.
What is the position now? The law that was enacted at their instance nowhere says that the liability of ex-husband is limited to the Iddat period, instead it says that a reasonable and fair provision must be made and paid within the period of Iddat.
Consequently, the Supreme Court has laid down that this amount should be adequate enough to meet all future requirements of the ex-wife. The Supreme Court has further clarified that the law enacted in 1986 does not prevent a Muslim divorced woman to seek relief under section 125 of CrPC. Only a few months back, the spokesperson for AIMPLB had admitted in an article that the 1986 Act proved to be a deception and that it did not satisfy the demands of AIMPLB.
The whole episode proves that AIMPLB not only lacks a representative character but that it also lacks the knowledge and expertise required to understand and draft any legislation.
FP: You have always been a proponent of reforms in the Muslim community. Do you think that such a judicial intervention would set the tone for reform? Or is it a setback?
AMK: The paramount duty of the Courts is to protect the Constitution and the rights of citizens against any encroachment by the Parliament or the executive. Judicial intervention is not a matter of discretion but the courts must necessarily intervene in cases where the fundamental rights are abridged or taken away by any law made by any Legislature or in force immediately before the commencement of the Constitution.
Triple talaq is clearly an issue that denies gender justice and discriminates against Muslim women and it is the duty of the Courts to protect the fundamental rights of any and every citizen of India. Reforms may be a matter of concern for the community but protection of the fundamental rights of the citizens is the sacred duty of the Courts.
FP: Reform is not an insular process. Do you think that the uniform civil code (UCC) would pave the way for such reforms?
AMK: Uniform Civil Code is a different subject altogether and is part of the directive principles of state policy. Article 44 of the Constitution lays down that the State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
On the other hand, Article 37 says that the directive principles are not judicially enforceable but they are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
So far, the government has not come forward with any proposal. When it happens, this issue can be discussed but we need not mix up the issue of UCC with the demand to abolish triple talaq. Today, the Shariat Application Act is the law of the land and under this law the right to triple talaq is being exercised.
Triple talaq is clearly repugnant to the provisions of fundamental rights and the immediate need is not only to outlaw it, but to make it a punishable offence so that this obnoxious practice can come to an end.
FP: In the international scenario, Indian Islam offers moderate and liberal strains. Do you think that it has been benighted of late by politics? I am asking this question as I find moderate and progressive voices like you are largely ignored in the political leadership.
AMK: The question of moderate and liberal attitude in religion must not be linked to politics. There is a prophetic narration that says that: “The most beloved religion to God is liberal Hanifiya”. The Quran itself uses the words “Ummatan Wasata” – a nation where people are justly balanced or moderate. But if we ignore these words and adopt an extremist and aggressive posture, we do so at our own peril.
As far as politics is concerned, the requirement in a secular and pluralistic society is not to allow politics to use religion as an instrument to mobilise electoral support. This has happened in the past and ultimately resulted in communal hatred, violence and partition of the country. Is that not enough to learn our lessons?
In a democracy we cannot keep complaining. We need to win minds and hearts. I do not share your feelings. I have been fighting against the cleric establishment since 1986. Back then, it was almost a lonely fight against heavy odds. But today, the number of people who are speaking out particularly the Muslim women is very high. This is a highly positive development and we need to consolidate these gains to make further progress and not keep cribbing about individuals.
Updated Date: Dec 10, 2016 17:18:40 IST