What led the Centre to take this stand?
Almost three decades after the Supreme Court judgment in the Shah Bano case raised questions on the sanctity of personal laws, comes the Shayara Bano case that has once again stirred the religious orthodoxy versus gender justice debate. In February this year, Shayara, a resident of Kashipur in Uttarakhand who was given instantaneous triple talaq by her husband, approached the Supreme Court. Her petition challenged the long-standing practices of talaq-e-bidat (instantaneous triple talaq), nikah halala (prohibition on remarriage with the divorced husband without consummating marriage with another man) and polygamy. Now, the Union government has filed an affidavit that in-principle supports the petitioner’s demand for doing away with such practices.
Does the petition come in conflict with Islamic principles?
The Muslim Personal Law (Shariat) Application Act, 1937, allows Indian Muslims to be governed by the Shariat (Islamic law), based on the Quran and Hadith (utterances of the Prophet), in matters of personal law. In the absence of any codification even within the Quranic framework, however, the Shariat has been subject to interpretations by the Muslim clergy, who have held these practices as sacrosanct.
But stating that Muslim women, merely by virtue of their gender and religion, are being denied their right to equal protection under law and protection from discrimination, Shayara’s petition argues that talaq-e-bidat has no foundation in the Quran and that polygamy is not an integral part of Islam. It refers to several scholars who hold that in Islam, triple talaq is valid only if the three utterances are spread over a period of 90 days and after several attempts at reconciliation have failed.
While there have been several cases that have challenged matters of the Muslim personal law, Shayara’s is the first to challenge it citing the fundamental rights guaranteed by the Indian Constitution. The petition invokes Articles 14, 15, 21 and 25 that deal with the right to equality before law, protection against discrimination on grounds of sex or religion, protection of life and personal liberty and freedom of religion respectively. With special mention to Article 25, it holds that it merely protects religious faith and not practices that are against “public order, morality or health”. It, however, steers clear of invoking the argument of the Uniform Civil Code.
Who are the various parties involved in the legislation?
While the petition was originally filed by the lawyers of Shayara Bano, over the last several months, it has been clubbed with several other petitions, including those filed by a few other affected women. Muslim scholars such as Irfan Ali Engineer through his Centre for Study of Society and Secularism and several Muslim women’s groups such as the Bharatiya Muslim Mahila Andolan (which has over 1 lakh members across 15 states) and Bebaak Collective (coalition of seven Muslim women groups across India) have also filed intervening petitions supporting Shayara’s demand. Also expected to join the fray is the All India Muslim Women Personal Law Board, which has in the past drafted its own Sharia Nikahnama that gives equal rights to men and women and repeatedly spoken against triple talaq.
The All India Muslim Personal Law Board (AIMPLB) has, however, decried all the groups that have spoken out in favour of reforming the Muslim personal law. The AIMPLB’s affidavit opposes any attempts at interference by the Supreme Court in matters of religious and cultural rights. It states that triple talaq, in fact, saves women the ignominy of divorce proceedings that could otherwise damage her chances of re-marriage and prevents the “murder of wives” at the hands of their husbands who may want to divorce them. It also backs polygamy on the grounds that “an unlawful mistress is more harmful for social fabric than a lawful second wife”.
So how did the Centre come into the picture?
In March this year, the Supreme Court had asked the Centre to make public a report by the high-level Pam Rajput committee on the status of women in India — the committee has sought a ban on gender discriminatory practices propagated by personal laws. It was only this month, however, that the Ministry of Law finally filed its affidavit where it took a stand that personal laws, regardless of the fact that they are meant to preserve the plurality and diversity of the country, “must be examined in the light of the overarching goal of gender justice and dignity of women”. It has also asked for re-examination of a 1952 Bombay High Court judgment that held that Article 13 of the Constitution doesn’t cover personal laws. Article 13 states that laws that are inconsistent with or in derogation of the fundamental rights are void. To drive in the point that such practices are not integral to Islam, the Union ministry gives detailed examples of personal law reforms in 10, mainly Muslim majority, countries. The union government’s affidavit states, “Secularism being a hallmark of Indian democracy, no part of its citizenry ought to be denied access to fundamental rights, much less can any section of a secular society be worse off than its counterparts in theocratic countries, many of which have undergone reforms.”