The Supreme Court verdict striking down triple talaq is one of the most significant judicial decisions made in independent India. Five Muslim women had challenged the revolting practice of instant divorce in Islam, sometimes even through a text message, WhatsApp or Skype, and it is no mean feat that they won against the stubbornly resistant Muslim clergy.
The judgment is a historic and landmark one for knocking down a sliver of Muslim Personal Law, which neither India's courts nor lawmakers have dared to challenge as discriminatory. But the judgment is also a letdown.
Even though they knocked down triple talaq, the five judges who heard the matter didn't go far enough in advancing individual freedoms and gender equality against regressive and patriarchal religious practices.
On the one hand, Justice Rohinton Nariman's ruling that triple talaq violates the right to equality under Article 14 of the Indian Constitution is extremely significant. It means that we can now test and challenge other discriminatory personal laws against fundamental rights.
On the other hand, in a case that was all about the immense suffering that women go through because of triple talaq, gender justice hardly came up in the entire judgment. Yes, Justice Nariman described triple talaq as "manifestly arbitrary" because a Muslim man could "whimsically" break a marriage, but really that was it.
Gender equality took a hit with the dissenting opinion of Chief Justice JS Khehar and Justice Abdul Nazeer, which said that triple talaq does not violate fundamental rights, Muslim personal laws are protected by Article 25(1) of the Constitution, the freedom of conscience and religion, and only the Parliament could change personal laws in order to safeguard health, morality and public order.
Former Additional Solicitor General, Indira Jaising, the only woman lawyer to have argued the case in the Supreme Court, described Chief Justice Khehar's opinion as "utterly and miserably regressive".
In a conversation with HuffPost India, Jaising talked about why the judgment had not only failed to address issues of gender injustice, but it barely acknowledged the agony endured by the women at the receiving end of triple talaq. The human rights lawyer also explained why the judgment would not alleviate suffering in any real away.
Jaising discussed the impact of Justice Nariman's ruling on challenging personal laws in future as well. She pointed out that this case will inform other faith and religion-related matters, such as the entry of Hindu women into the Sabarimala temple in Kerala and perhaps even the Ram Temple-Babri Masjid dispute.
Jaising, who represented the Bebaak Collective, also spoke to us about how, as a lawyer, she dealt with the politicisation of the triple talaq case after the ruling Bharatiya Janata Party government took a stand against instant divorce in the Supreme Court.
I believe that religion is the last frontier on the question on women's rights.
Why did gender injustice not come up in the judgment? How could it not have come up?
How could it not have come up. I am disappointed. I am disappointed that the Supreme Court of India failed to acknowledge that they were talking about the lives of real women. It was about gender but there is no mention of gender injustice. There is not a single word on how triple talaq disproportionally impacts women. It's not there except, of course, when Justice Nariman says that it is "manifestly arbitrary". But then there is no explanation as to why is it manifestly arbitrary. How does it ruin the life of a woman, how is it discriminatory, why is that only Muslim men have the right to give triple talaq, what happens to the life of a woman who is talaqed.
The human dimension is missing from this judgment. After all, gender justice is about humanity. It is about the law, but who is this person that you are talking about? What impact will it have on her life and why is it so important that gender justice should be done to her?
Yes, you acknowledged that the petitioner was Shayara Bano, but Shayara Bano went to court because of what it did to her life. She did not go because of the ghost of the Narasu Appa Mali case (In the State of Bombay vs. Narasu Appa Mali case, the Bombay High Court in 1952 held personal laws to be immune from constitutional challenge). These are all lawyers' arguments. You find the arguments of the lawyers reflected, you find the argument of the theologians reflected but where are those missing women?
The human dimension is missing from this judgment.
So what is the big takeaway from the judgment?
The most important takeaway is that it has unleashed the energy of Muslim women who for the last 25 years have been working on this issue. This is not something that has happened overnight nor is it something that has happened because the government wanted it to happen. It's happened because a new generation of Muslim women which I have seen emerging in my own lifetime.
Way back in 1984, I think, a Muslim woman called Shahnaz Sheikh had filed a petition in the Supreme Court, which was very similar. Finally, she reached a stage when she decided that she wanted to get on with her life and not spend it in court. And then the next landmark was Shah Bano, and Shah Bano was also literally alone. Although we saw activism from the court, we didn't see it from Muslim women.
So this is the first time that you find Bharatiya Muslim Mahima Andolan, Bebak Collective and individual Muslims who are so articulate that they are the ones who carried the momentum of this judgment on their shoulders. Now whether their hopes and aspirations will be fulfilled — that's a different question. But I would say that this has enhanced their self-confidence. The feeling that "we can do it". That, I think, will reap some dividends in the future.
It has unleashed the energy of Muslim women who for the last 25 years have been working on this issue.
Why does the judgment not fulfil their hopes and aspirations?
Because it's a judgment dangling in the air. It's just a declaration that triple talaq is unlawful. It doesn't mean that Muslim men will stop giving a triple talaq. Not everyone acts in accordance with the law. You will see it happening and that's when these women will feel, 'Okay, we got a judgment, so what? I'm still being thrown out of my house. And what am I supposed to do? Am I supposed to run to court on every occasion?' So there will be that sense of disappointment.
What happens now?
It is an interesting question. The Attorney General made a statement in court that you declare talaq unlawful and we will pass the law. But I just read that the government has said that they don't intend to pass a law. That's very frightening actually.
There is a law — The Women's Right to Divorce Act of 1939 — that enables a Muslim woman to get a divorce on grounds such as cruelty and desertion etc. So the big question is why should that law not be equally applicable to Muslim men? When Muslim women have to get a divorce from their husbands, they have to go to court under this law. But if a Muslim man wants a divorce, he can just pronounce any of the other two forms of divorce, which have not been declared unconstitutional.
This judgment has only declared one of the three forms of divorce unlawful — that is when you pronounce triple talaq in one go. But if you don't pronounce it in one go, and you do it over a period of time, you have still divorced your wife. So my question would be, why should a Muslim husband have the right to unilaterally dispense with his wife, but when she wants a divorce, she has to go to court? Such a law is required. I'm intrigued why the government is saying that there is no need for a law.
Why should a Muslim husband have the right to unilaterally dispense with his wife?
But even before that happens should there not be a law that at least prescribes penalties for a man who gives triple talaq in one go?
There can be a variety of laws. But I don't think women are just satisfied with punishment. The kind of law you should get is the kind that women want. What they need is a law which will give them easy access to things like alimony, child custody, things returned to their matrimonial home. And there are scattered laws which they use. But the point is that if a Muslim husband is obliged to use a court of law to get a divorce, his wife is more likely to get a fair judgment and that is what they are looking for.
So what happens now if a man says talaq in one go? What is the fallout?
Nothing will happen. The fallout of it is that she can say that I'm still married. And she doesn't have to go to court to prove that she's not married. But there could be any number of disputes. He could say that this was not triple talaq but talaq ahsan: I actually did it over a period of three months. And she's back to square one. Or she will have to run to court to prove that it was actually triple talaq not talaq ahsan. Or she will have to go under Section 125 and say give me maintenance because I continue to be a married woman. So she is driven to a huge amount of litigation. So it's not going to be very useful.
Now, you might say, well, this might happen to a Hindu woman too. Yes, it could. But with a Hindu woman, it would not be that easy because he would have to prove that he divorced her in a court of law. And that becomes the forum in which you negotiate for your rights. There are many Hindu men who simply desert their wives and go away. But their wives still retain the status of married women and so they can claim, much more easily, access to their matrimonial home and a maintenance.
It is a common problem across the board. It is not confined only to a Muslim women, but it is more difficult for Muslim women.
How far does Justice Nariman's ruling help in challenging personal laws?
It's anybody's guess. I could think of 101 different personal laws which are discriminatory and which can be challenged. We can rely on the judgment of Justice Nariman to open up the challenge as well as include a challenge on gender discrimination based on sex. He has opened up that space of family law and he has allowed it to be tested on the grounds that it violates fundamental rights. But I'm sorry to say that there is a huge reluctance in the court to allow any changes in personal law.
I believe that religion is the last frontier on the question on women's rights. They have gone into areas like the right to work, sexual harassment at the work place, reservation and equality in the matter of admission to colleges. But they have not allowed the entry of constitutional law into the family. It's almost as if they all believe that a man's home is his castle which you don't enter.
It is a battle that the women's movement the world over has been fighting. The separation between the public and the private. I've said that family law is like an island that the Constitution cannot touch.
It's almost as if they all believe that a man's home is his castle which you don't enter.
On the first day of the hearing you told the judges that the ghost of the Narasu Appa Mali case needs to be extricated? Has it been extricated after Justice Nariman's judgment?
I don't think the ghost has been extricated. I think the ghost was faintly visible, now the ghost is clearly visible.
Justice Nariman's ruling is the first time that the Supreme Court is saying that personal laws can be challenged. Isn't that huge?
That is really huge. He has opened the door. He has opened a window and a door both. So now it is up to a future generation of lawyers to see how they are going to use it.
What was the significance of having five judges from different faiths hear this matter?
You know people say that it was an interfaith court, but as a judge you should rise above faith and only interpret the Constitution. The judgment is replete with trying to decode faith, trying to tell us what faith is all about. What religion is all about and what Islam is all about. None of them is an expert on Islam, none of them is a maulvi, none of them is an Islamic jurist and yet they are telling us what Islam is. It's just not on.
So you're saying don't even get into that.
Yes, don't get into it. You have to know what is not a matter of religion and then take your decisions. After all, we've done away with Muslim personal laws on crime. The Indian Penal Code applies to everybody. So you can't say that Muslim personal laws cannot be interfered with.
The Indian Penal Code applies to everybody. So you can't say that Muslim personal laws cannot be interfered with.
The triple talaq case was a political one as well. As a lawyer, how does that weigh on your mind?
It was a highly political case. It was a big weight. The first weight was to decide whether to enter the court or not to enter the court. We all knew that the issue had been raised by the BJP government. And we knew that the BJP government has no real sahanabhooti (empathy) with the minorities.
This was rather obvious from the fact that there is no representation of minorities in UP, it is obvious from the lynchings, and so many factors. So one approach would be to just boycott the court and say alright it's a political issue, let them do what they want to do. But then, on deeper reflection, the courts are a democratic space and so the question became that are we, as secularists, going to abandon this space or do we enter the courtroom and present our point of view? And apart from that, the question became who's in the driver's seat? And we wanted to demonstrate that Muslim women are in the driver's seat. And they are the movers and shakers.
The third reason to enter the domain was that we knew that whatever judgment comes will also impact issues such as women being allowed to enter the Sabarimala temple. So it became an issue for women across the board. Not confined to Muslim women. Hindu women are also discriminated against. That finally titled the balance and coerced me to invest a lot of time.
We wanted to demonstrate that Muslim women are in the driver's seat. And they are the movers and shakers.
You called the judgment "great" because it opens up personal laws to challenge. But you also sound disappointed.
It took me a year to come to terms with the issue after discussion with colleagues and friends. And that's why it's also very disappointing that the judgment clearly bears the hallmark of lack of time for reflecting on such a serious issue. Here's the Chief Justice who is going to retire and he fixes the hearing in the month of May. I told you it took me one year and I'm sure it took a lot of others time to formulate their arguments and to think the whole issue through. So therefore to have a hearing in May and to deliver a good judgment by August was, I thought, not enough time. And you can see a reflection of it.
Eighty percent of the Chief Justice's judgment is who said what. This happened, this happened, this happened. And suddenly there is reasoning that isn't even reasoning. One sentence doesn't connect to the next. One paragraph does not connect to the next. So you get the impression that we have to get this over by the 25th (August).
It is the same with Justice Kurian's judgment, which is very short. Of course, he said that anything that is bad in theology is bad in law. But he doesn't explain why. The question would be, is the converse true? Is something that is bad in law also bad in theology? The answer could be no. It could be good in theology. So that argument also needs to be worked out.
The judgment clearly bears the hallmark of lack of time for reflecting on such a serious issue.
The Supreme Court did strike down triple talaq, so in the balance of things, disappointed or...?
I'm delighted that we have take one baby step in the right direction. I think that it is up to the future generation of feminist lawyers to carry this battle forward. But definitely a step in the right direction.