The Supreme Court of India has held the practice of “triple talaaq” as illegal. Couched and garbed under the notion of gender rights, it has been observed by the court that “the practice of triple talaaq was “manifestly arbitrary” as the marital tie could be broken “whimsically” by a Muslim man and this must be held to be violative of the fundamental right to equality”. There’s two facts or even counterfactuals that appear to have been glossed over: one is the very low incidence and prevalence of divorce rates among Muslims in India(amounting to less than 1%), and the fact that divorce in Islamic is a process than an event. I am neither an Islamic scholar nor a jurisprudent: these disabilities naturally preclude me from commenting on the nature of triple talaaq and the jurisprudence it has spawned. However, there are certain peculiarities to and in the verdict that accord grounds for a pausal. One is the emphasis laid on gender equality and that of equality, broadly speaking- the central predicates around which the verdict has been delivered. Third, is that the legal action clamoring against triple talaaq does not appear to have been a class action or collective action. The action or whatever appellation it warrants was pioneered by a few women.
The premise or predicate of gender equality appears to have been a device to thwart the peculiarities of Indian secularism which recognizes religion and group rights thereof. By casting the issue in the idiom of gender rights, it appears that the problems that the verdict has raised appear to have been avoided. Arguing against gender rights and equality becomes naturally difficult than an overt interference in the rights and laws of a community. From this perspective, the issue then is cast as that of modernization and modernity. But, this is a flawed premise and approach. If Muslims are to “modernize”, what does Muslim modernity actually mean? And who decides the impetus and nature of Muslim modernity? Muslim modernity and modernization are topics and themes that there really is no consensus about within Muslims. Yes, indeed, Muslims need to be more vigorous and aligned with the world in terms of their outlook and politics but who decides the nature and terms of this. Muslims themselves is the answer.
Historically and even contemporarily, it has been observed that “forced” or even modernization through judicial and legislative activism, which is exogenous, that is thrust from outside, has had contra effects on Muslims. Examples galore can be cited to underscore and buttress this point. The impetus for modernization of outlook and temperament must then emanate from within Muslims. But , there is a caveat here. There are certain non- negotiables in Islam that cannot be tampered with.
Having said this, if equality , a worthy and notable goal, is the end goal of the Triple talaaq verdict by the Supreme Court of India then it should apply to all religions and peoples in India. The iniquities and inequities of caste and its practices in India continue to be a feature of society. The entrenchment of caste and caste based practices in the super and sub structure of society in India remains a nagging issue that has not been satisfactorily addressed in India. Politically, the sub alterns of India might have found some voice but it is articulated in the idiom of caste itself and there remain structural barriers in terms of mobility and even equality in India. Why not a more vigorous judicial activism in this domain?
More importantly perhaps is the structural, social, economic and political condition of Muslims in India. The summary of the Sachar commission report, commissioned by the Government of India but never really implemented was that Indian Muslims suffered structural debilities which preclude their development and efflorescence. If Indian Muslims suffer from economic, social inequalities and political underrepresentation , then why not judicial activism to remedy this condition?
All these questions suggest that there are more nagging and pressing issues for Indian Muslims that need to be addressed but have not , in reality, been attended to.
Then there is the legal issue of a precedent. The Triple talaaq verdict could set a precedent which could potentially and putatively be employed as grounds for other interventions. I am not a legal expert but what strikes to me intuitively is that, perhaps, at some point in time, the state and its various apparatuses and the judiciary can intervene and deliver a verdict on a Uniform Civil Code in India. This would end the separation of the state from religious matters in India but it would certainly accord with the “ new” Idea of India that is being sought to be crystallized and reified in India. If this be the case, then the Triple Talaaq issue might be portentous.
—The author can be reached at: email@example.com. He tweets at: @Wajahatqazi