A week of judicial grit
Customs and traditions are subjective while law is objective. The twain are different and must be kept distinct.
This week has indeed been a spectacular one with the Supreme Court of India pronouncing two path breaking judgements: one pertaining to the social realm, and the other to the political domain. Both, delegitimising triple talaq and conferring Constitutional status to right to privacy, are pronouncements that exhibit the ambit of judicial intervention in full view.
Beginning with the first judgement, the matter of triple talaq had been simmering in the recent past. This verdict comes as a milestone because All India Muslim Personal Law Board (AIMPLB) had asserted that this manner of instant divorce is a matter of faith and should not be meddled with. Allahabad High Court was correctly of the opinion that this is "most demeaning form of divorce".
This unilateral divorce slapped upon a Muslim wife trivialises and invalidates her position in her own marriage, that she is bereft of the crucial right to jointly decide the fate of her matrimony. It is commendable that the Court independently made this decision and did not pass the buck to Parliament. Nullifying this social practice has ensured a more serious marital status to the (Muslim) women who were, until now, vulnerable to this kind of socially sanctioned eccentricity. The ruling has averred that only law is the supreme-most decree.
It is not uncommon for social malpractices to be kept alive on the pretext of religion or culture or tradition. Sati was one such cruelty that was formalised and legitimised in the garb of religion. Treading that thin line between the sensitive matter of faith and pragmatic concern of women's dignity, the Supreme Court's verdict to abolish the malpractice of triple talaq is incontestable. Divorce, by any normal standard, is a legal procedure, not an optional formality to informally dissolve a marriage at the whim of the husband. If a marriage is a formal and a legally registered one – which a Muslim marriage essentially is – then the corresponding divorce must necessarily confirm the termination of this registered legal status. Hence, there is logically no scope for any instant, short-cut, and permanent divorce anyway.
This week's verdict, however, is not the first time the Apex Court rendered triple talaq illegal. It was deemed illegal in 2002, but the Court's order did nothing to deter the practice. The reason might be that despite the judgement, the notion of this instant divorce was not clearly delinked from the order of Islamic practices. Several Muslim-majority countries including Indonesia, Iran, and Tunisia do not adhere to this practice. Some Islamic scholars, contrary to AIMPLB's position, have argued that instant talaq (talaq-e-bid'a) has no Koranic basis and it is not fundamental to Islam.
A. Faizur Rahman, an independent researcher and Secretary General of Chennai-based Islamic Forum for the Promotion of Moderate Thought, in a previously published column in The Hindu, explained the only valid method of divorce, that "as per the Koran, only after four serious attempts at reconciliation (which includes arbitration) is a Muslim husband permitted to utter the first divorce, which is followed by a three-month waiting period called Iddah. If within iddah the marital dispute gets resolved, conjugal relations may be resumed without undergoing the procedure of remarriage. But after the expiry of iddah the husband can either re-contract the existing marriage on fresh and mutually agreeable terms or irrevocably divorce his wife — in the presence of two witnesses — by pronouncing the final talaq."
An understanding that is gaining ground is that delegitimising triple talaq is essentially a step towards Uniform Civil Code, whereby, personal laws based on scriptures and customs of each major religious community in India will be replaced with a common law. There appears to be a clash of secular ideals and the fundamental right to freedom of religion here. Although this is another point of debate altogether, it must be borne in mind that customs and traditions are subjective while law is objective. The twain are different and must be kept distinct. For this purpose, the Muslim Personal Law Board may be entrusted to formulate suitable provisions in keeping with the customs and traditions without compromising the objectivity of the law.
It goes without saying that most people (specially low-income group among whom triple talaq is a hazard), relate more and adhere to the diktats of their communal authority than they are likely to uphold the Court's verdict. Here lies the major complication. A matter that can easily be twisted and given communal colours and political angle is but, in fact, a grave social issue concerning vulnerable women. Women are not the dominant voice of the community. And the men deciding for them are less in favour the verdict (read patriarchy at play). But even such clouded perception cannot, by any means, negate the fact that triple talaq is an instrument of dehumanisation and oppression that deserves to be retired.
The other trailblazing verdict of the Apex Court that granted Constitutional status to right to privacy is one that has roughly decided the course of some very crucial and highly talked-about matters, even leading the government to reconfigure some of its propositions. The Court lays down the guideline without encroaching on the power that the government is invested with to make best decisions for the people. There is still much to unfold regarding this pronouncement since several schemes of development are in the making. The sanctity of right to privacy is sure to define the course of further decision-making and governance, making them more meticulous and wholesome.
Judicial intervention has clearly done its utmost. The point that remains to be driven home is that the judiciary can only serve to guide the process of making laws and enforcing laws. Judicial feats are cornerstones of good governance and it is for the government to erect an edifice on this in keeping with the dynamics of governance and order. With the popularity of the verdicts this time, the Supreme Court has paved a path for greater empowerment of common people.
(The author is Editorial Consultant and Senior Copy Editor with Millennium Post. Views expressed are personal.)