The gender question

The court missed an opportunity to articulate a gendered reading of the Constitution. But the verdict is significant for the fact that it marks a signpost moment of the women’s movement in India and for the implications it may have in popular vocabulary and imagination.

Muslim women protesting against triple talaq in Surat on May 24.

THE Supreme Court on August 22 pronounced its much-awaited judgment in Shayara Bano vs Union of India, a case that challenged the constitutional validity of instantaneous talaq (talaq-ul-biddat). The court, by a three-two verdict, invalidated instantaneous talaq, holding it to be un-Islamic and unconstitutional.

While this signals a significant step in the campaign for gender justice in personal law that women’s groups (and in this case, Muslim women’s groups) have been shouldering, it will not be uncharitable to say that the judgment is a classic case of a gender-just outcome without a gendered reasoning.

For one, the judgment is unable to articulate a jurisprudence of gender justice, nor does it evolve a framework of constitutional governance by making religion, non-discrimination and Constitution speak to each other. The immense possibilities of the judgment are stunted by limited and, in some cases, regressive reasonings extended by the bench to arrive at its findings.

The vacation bench set up with five judges at the very outset of the proceedings had delineated the primary issues that were to be dealt by the court; first, whether instantaneous talaq and nikah halala are essential practices of the Islamic faith and second,whether these practices violated any fundamental right under the Indian Constitution. The court stated that it would not go into questions of polygamy nor would it open the question of reconsidering a 1952 Bombay High Court judgment in Narasu Appa Mali where the court had stated that uncodified personal laws were not laws within the meaning of Article 13 of the Constitution, and, therefore, need not be tested against its provisions. What essentially then remained before this court to examine was the validity of the instantaneous talaq alone.

Islamic law of divorce is of three types—talaq (modes of divorce at the instance of the husband), khula (divorce at the instance of the wife) and mubarat (mutual consent divorce). Instantaneous talaq, unapproved by the Prophet himself, emerged in the 2nd century in some Sunni schools, mostly Hanafi, and was validated later by certain courts in British India, who erroneously considered Muslim marriages as loose unions that could be dissolved by a casual utterance of talaq. This led to a 1932 Privy Council decision in Rashid Ahmed where it was inaccurately agreed that instantaneous talaq was bad in theology but good in law. It was only much later that Indian courts started reinterpreting personal laws to indicate that what was good in theology could only pass the test of being good in law.

A series of High Court cases leading up to the Supreme Court decision in Shamim Ara (2002) reaffirmed that an attempt at reconciliation was an essential condition precedent to talaq, something that was not possible in instantaneous talaq. In other words, the position that emerged with Shamim Ara was that what is bad in theology must be bad in law, marking a clear departure from the earlier position.

In spite of Shamim Ara, reported cases of instantaneous talaq were on the rise and a 2015 report by the Bharatiya Muslim Mahila Andolan,titled “Seeking Justice Within Family–A National Study on Muslim Women’s Views on Reforms in Muslim Personal Law”, indicated that 92 per cent of Muslim women wanted a total ban on instantaneous talaq. This was complicated by the fact that the All India Muslim Personal Law Board (AIMPLB), dominated by men, failed to adequately address issues such as instantaneous talaq that affected only women.

The instantaneous talaq case (or more popularly, albeit erroneously, “triple talaq” case), which came before the Supreme Court in a batch of petitions from survivors and a suo motu petition in 2015, therefore, faced several challenges. The bench was to determine the relationship between personal law and the Constitution; it was also expected to determine the constitutional validity of instantaneous talaq in accordance with the law. This was, however, a more complex exercise than it appears, for the court needed to first ascertain if it would adopt a narrow or a broad position. A narrow view was to only determine the relationship between instantaneous talaq and Muslim personal law; a broader approach would not stop at that, but would go further to determine the relationship between personal law and the Constitution.

At a meta level, a constitutional court was also expected to probe the relationship between religion and the Constitution itself, asking if both were constitutive of each other and what role they play in constitutional governance of a nation state. More significantly, it was expected that the court would unpack the meanings of non-discrimination and equality that were central to the claims of gender justice for Muslim women. Such a historic opportunity to articulate a framework for gender justice seldom arrives before the court. Even when it arrives, the court is known to cunningly dodge issues of discrimination, sometimes by deference to the legislature and at times by interpreting statutes ( Mary Roy vs State of Kerala, Geetha Hariharan vs Reserve Bank of Indi a, for example) to mitigate discriminatory aspects of personal laws. The court in the instantaneous talaq case chose the narrow approach and declined to interrogate the Narasu ruling or explore the relationship between personal laws and the Constitution.

In Narasu, Chief Justice M.C. Chagla and Justice P.B. Gajendragadkar, through their separate yet concurring judgments, answered the question whether personal laws applicable to Hindus and Muslims are laws in force within the meaning of Article 13(1) of the Constitution and must in order to survive 372(1) and Article 13(1), satisfy the requirements of Articles 14, 15 and other Articles of Part III in the negative. Justice Gajendragadkar’s reasoning relied on a technical reading of Article 13(1) that it contemplated only statutory laws and that personal laws cannot be considered statutory laws and hence were outside the scope of Article 13. When it comes to testing the constitutional validity of personal laws, although courts have been careful to adopt a case-by-case approach instead of a universalised one, the ghost of Narasu has not been exorcised with a vast domain of uncodified personal laws remaining outside the realm of constitutional scrutiny. The first failure of the Shayara Bano judgment is the refusal to engage with the Narasu question.

Minority Opinion The AIMPLB had submitted that triple talaq is a matter of faith, having been practised for 1,400 years, and is outside the purview of judicial scrutiny. The minority opinion (of Chief Justice J.S. Khehar and Justice S. Abdul Nazeer) relies on this, albeit in a contradictory manner. The minority opinion on the question of the validity of triple talaq finds the practice discriminatory yet advocates its protection by holding that “the stature of ‘personal law’ is that of a fundamental right”. This is truly inexplicable, because personal law neither is a fundamental right nor is protected by Article 25 of the Constitution, which protects individuals, not “laws”.

Then they go on to add, by way of a strange analysis, that personal law is only bound by “public order, health, and morality” inscribed in Article 25(1), implying that instantaneous triple talaq does not offend gender equality and non-discrimination, which go at the heart of constitutional morality.

Indeed, in paragraph 193 of the judgment, the Chief Justice of India reasons that “it is not open to a court to accept an egalitarian approach, over a practice which constitutes an integral part of religion”; and yet he carefully avoids establishing that instantaneous triple talaq is an essential practice of Islam, as mandated by the essential practices test itself. For a constitutional court to reason thus, albeit in a minority opinion, that religion is “a matter of faith, and not of logic” and is protected from constitutional scrutiny is acutely disturbing.

Tomorrow, if a community decides that bride burning is a matter of faith, and follows no logic, will a constitutional court not rise to the occasion, scrutinise it and declare it unconstitutional? The AIMPLB had stated in its submission that personal laws were a matter of faith, like Ayodhya being the birthplace of Rama was a matter of faith for Hindus. The frightening impact of this logic cannot be emphasised enough.

The majority opinion (Justices R.F. Nariman, U.U. Lalit and Kurian Joseph) adopts different reasons to invalidate instantaneous triple talaq. Justice Nariman, writing for himself and Justice Lalit, concludes that the practice is unconstitutional because it is arbitrary. He finds the Muslim Personal Law (Shariat) Application Act, 1937, had codified Muslim personal law, including the practice of triple talaq, which rendered itself to constitutional scrutiny.

He reasoned that because instantaneous triple talaq allowed Muslim husbands unbridled power to divorce their wives, without any possibility for reconciliation, it would be arbitrary, failing the test of Article 14 of the Constitution, which mandates equality before law. Thus, arbitrariness becomes the reason for invalidating triple talaq, whereas non-discrimination based on sex inscribed in Article 15, which ought to have been the primary reason, and spiritedly argued by the petitioners, remains secondary.

The Constitution Bench refuses to acknowledge here that non-discrimination is not merely equality’s subset. The idea of non-discrimination is distinct from the idea of equality. If arbitrariness negates equality and is thus a violation of Article 14, it takes a different route in case of non-discrimination. Derogation of rights in case of the latter is not done by arbitrariness in state action. Au contraire , it is through a systematic deployment of power horizontally between classes and vertically by the state.

Discrimination cannot be contained by arbitrariness alone. In Madhu Kishwar vs State of Bihar , the court, while looking at gender, observed this and noted that “the rules of succession are indeed susceptible to providing differential treatment, not necessarily equal”.

One cannot help but be dismayed at this lost opportunity for the court to articulate a gendered reading of the Constitution drawing from Article 15. It is distressing that the judges did not entertain the question of non-discrimination; indeed, the express silence on the question of non-discrimination is telling in the face of the fact that the campaign to abolish triple talaq is inextricably linked to the emergence of Muslim women’s activism over the past decade or so, and the petitioners in this case bare testimony to that.

The second strand of the majority opinion (Justice Joseph) offers a crisp reasoning to invalidate instantaneous triple talaq as un-Islamic. He effectively reiterates multiple High Court judgments leading to the 2002 Supreme Court judgment in Shamim Ara vs State of U.P. to rule that instantaneous triple talaq is invalid because it leaves no scope for reconciliation as required by the Quran and is hence bad. What is bad in theology must be bad in law, he holds.

Interpreting theology While this approach, that is a secular court interpreting theology, has been largely controversial in the past ( Shah Bano ), in a personal law system such as ours, this cannot be entirely avoided in a legal-pluralist paradigm. In fact, this conundrum has played out in the Indian context between legal pluralists and secular modernists on the question of reform of religious personal law since the making of the Constitution.

Reforms of the post-Independence period, to borrow from Flavia Agnes, “privileged modernisation, codification, and unification as key elements of progressive development”. While the early 1950s saw the attempt by the nascent nation state to “secularise” the legal system, most well-meaning attempts at “gender justice” proved to be detrimental for women living outside the traditional conjugal family. The Constituent Assembly debates, too, bear testimony to the conflict between pluralists and secularists, with the constitutional framework choosing to hold on to the personal law system.

It would have been interesting to see what opinion Justice Kurian Joseph’s “swing vote” would have provided about the elephant in the room—uncodified personal laws and whether they are subject to the test of the Constitution crystallised in Narasu . But he avoids the subject like the rest and one does not know why. The saving grace of this missed opportunity is Justice Nariman observing that the wrong of Narasu could be corrected in an appropriate case in future. That said, Shayara Bano will remain significant for two reasons—first,its significance in marking a signpost moment of the women’s movement in India, and second,the implications the judgment may have in popular vocabulary and imagination.

In recent years, a growing number of Muslim women in India have been publicly calling for personal law reforms. In articulating their rights, they refer sometimes to the Quran, sometimes to the Constitution and sometimes, to borrow from Shaista Ambar of the All India Muslim Women’s Personal Law Board, they “walk with the Quran in one hand and the Constitution in the other”.

This by no means is an easy task. How does any woman negotiate and navigate the state structures and the dictates of the community? History has shown that she perennially oscillates between the state and the community, navigating the pulls of culture, religion and law, be it in the nationalist resolution of the “women’s question” (Partha Chatterjee) in social reform in the early and mid 19th century in Bengal or the agitation surrounding the Hindu Code Bills. In the triple talaq discourse, the Muslim woman rooted in a “communalised polity” (Flavia Agnes) is imagined as a handmaiden of the majoritarian Hindu state when she chooses to exit the religious personal law system and approach a constitutional court and argue for her rights as an equal partner in marriage, or as a victim of oppressive religious personal law of the Muslim other when she does not . The Muslim woman citizen here does not remain an individual, unmarked bearer of rights but a subject who is a product of state, community and gender.

Shayara Bano epitomises this struggle to reframe the category of “Muslim women” while also highlighting how these women-led networks are challenging the authority of the religious elites to represent them. This is the true victory of Shayara Bano .

Jhuma Sen is an Assistant Professor at O.P. Jindal Global University.