Describing as “historic” the Supreme Court judgment against the practice of instant triple talaq, the Government and the ruling BJP Tuesday said the verdict marked the beginning of a new era of equality for Muslim women in the country. The leadership, however, struck a cautious note on the minority view of the Constitution Bench, which sought a legislation to ban the practice.
Speaking to The Indian Express, Union Law Minister Ravi Shankar Prasad said, “We will consider the issue in a structured manner. Prima facie, the court has categorically held it unconstitutional and illegal… It is a great dawn for women in the country. The judgment is special and historic… it’s not only a Constitutional and legal victory, but also a moral victory for Muslim women.”
Earlier this year, during the run-up to the UP assembly elections, Prasad was the first senior BJP leader to state that the Central government could take appropriate steps to ban instant triple talaq. On Tuesday, the five-judge Constitution bench was divided in its verdict: Chief Justice J S Khehar and Justice S Abdul Nazeer held that instant triple talaq, or talaq-e-biddat, was part of the fundamental right to religion and not unconstitutional, but Justices Kurian Joseph, Rohinton F Nariman and Uday U Lalit said the practice violated fundamental rights.
The carefully framed reactions of Prime Minister Narendra Modi and BJP president Amit Shah on the split verdict revealed the cautious stance taken by the ruling dispensation. Both of them hailed the verdict as “historic” but did not dwell on the legislative option suggested in the minority view of the judgment.
In their judgment, CJI Khehar and Justice Nazeer said, “We would also beseech different political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation.” Prime Minister Modi posted on Twitter: “Judgment of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment.”
Shah echoed the Chief Justice’s reference to the abolition of instant triple talaq in theocratic Islamic countries. “Sansaar ke bahut saare Muslim deshon mein bhi triple talaq ka kanoon astitva mein nahin hai (The provision of triple talaq does not exist even in many Muslim countries),” Shah said. Prasad pointed out that the CJI had referred to “obscurantism” in the Muslim personal law.
Other BJP leaders said that the party was “carefully examining” the verdict and would “wait and watch” how the debate on the issue evolved — they did not rule out the option of legislative action. “The court has called one particular type of talaq as invalid. This creates a vacuum whether future transgression through this invalid provision will be dealt under the domestic violence act or under personal laws. So, the contours or definition of this particular talaq need to be legislated,” said senior BJP functionary.
“Politically, there has been no discussion on it (legislation),” said a top BJP leader. However, he added that if the Government planned to bring a legislation now, it will find favour among a majority of people.
Incidentally, the then Attorney General Mukul Rohatgi, while appearing for the Central government in this matter, had argued that two other modes of talaq, talaq-e-ahsan and talaq-e-hasan, were also “liable to be declared as unconstitutional”, for the same reasons referred to for talaq-e-biddat.
Talaq-e-ahsan refers to a single pronouncement of divorce during a tuhr (period between the menstrual cycle) followed by abstinence from intercourse for the period of waiting. Talaq-e-hasan relates to three pronouncements made during successive tuhrs, with no intercourse taking place during this period.
The Government’s top law officer had, at the time, also described these two procedures to be “equally arbitrary and unreasonable” as instant triple talaq. In his minority judgment, CJI Khehar referred to this submission while directing a legislative option. “It was contended that the challenge to talaq-e-ahsan and talaq-e-hasan would follow immediately after this Court had rendered its pronouncement” with reference to talaq-e-biddat,” said the CJI’s judgment.
Immediately after the verdict was delivered, Shah held a meeting with senior party leaders and briefed the party’s spokespersons about its stand. “Triple Talaq is illegal now. It was a big battle. The Prime Minister and our Government have been sensitive to Muslim women’s concerns. The Government has through a number of its affidavits taken their side. There is no need for a legislation (on talaq-e-biddat). The practice has always been illegal and the Supreme Court has now declared it illegal,” BJP national spokesperson Shahnawaz Hussain said.