The judgment in Shayara Bano
In August 2017, the Supreme Court made global headlines when it declared the practice of triple talaq illegal for violating the fundamental rights of Muslim women. Among other things, Shayara Bano had argued that freedom of religion as guaranteed by Article 25 of the Constitution was subject to the other fundamental rights, since the provision itself made freedom of religion subject to the other rights guaranteed by the Constitution. International treaties and covenants including the Universal Declaration of Human Rights were cited to submit that the practice of triple talaq was impermissible in the interest of human rights. Relying on the fact that the archaic practice of triple talaq was long outlawed in many Islamic countries including Saudi Arabia and Pakistan, she argued that there could be no protection to such inhuman practice that permitted men to treat women as chattel on the pretext of religion, given that it clearly failed the “essential practice test” that must be applied to determine whether a practice is essential to professing a religion or merely incidental to it.
Before the judgment
In the context of gender equality and human rights, it must be noted that Muslim women were given triple talaq over Skype, Facebook and even text messages. Shayara Bano herself received a talaqnama by post. There was absolutely no protection against such arbitrary divorce. Muslim women had their hands tied while the guillotine of divorce dangled, perpetually ready to drop at the whims of their husbands who enjoyed undisputed power. Muslim women cried hoarse that they were often married only for their youth, to be unceremoniously and arbitrarily abandoned later, without even an excuse for termination of the marriage. But there was much more than the lack of dignity attached to such abhorrent treatment of women as chattel, to be used for carnal pleasures in their youth, only to be abandoned in their later years. Some critics, commentators and readers may not be aware of “kidney marriages”. Rich sheikhs from the Middle East who needed replacement of kidneys and other human organs visited India for medical tourism. Since Indian law allows a relative to donate organs, these sheikhs simply married poor Muslim girls only to abandon them after extracting a kidney. Muslim marriages were on the rise and so were divorces by triple talaq.
Criticising the critics
Before arguing from an armchair perspective against the Ordinance, the critics would be well advised to consider empirical data and ground realities. They need to enquire whether the Shayara Bano judgment succeeded in preventing triple talaq, with many maulvis publicly declaring war on the Supreme Court. They need to ask themselves how justice may be done to the victims of “kidney marriages”. If false promise to marry to obtain sexual gratification is deemed to be rape (punishable by life imprisonment), how is marriage with the intent of discarding the woman after some time by abusing the inhuman and abhorrent practice of triple talaq any different? Why would the state protect women from becoming victims of false promises of marriage, but turn a blind eye to triple talaq, which has the same effect on their life and dignity? They also need to appreciate the difference between talaq-e-bidat and talaq-e-ehsan, the former being instantaneous triple talaq by simultaneous utterance of talaq thrice (now illegal) and the latter being a more detailed and Quranic procedure, attempting reconciliation and drawn out over three months as explained in the Holy Quran and documented by Islamic countries in their legal instruments.
In defence of the Ordinance
One must note that the Supreme Court had itself requested Parliament to pass legislation on triple talaq, preferably within six months of the verdict. After the verdict, the government decided to introduce a Bill to criminalise the practice, which was passed by Lok Sabha in December The Ordinance came to be passed because the Monsoon Session of Parliament concluded with Rajya Sabha’s failure to pass the Bill as law.
Given that law without justice is a wound without a cure, mere declaration of the practice as illegal serves no purpose unless a cure is prescribed by way of a legal remedy. In criminal jurisprudence, acts that threaten society and social order are viewed as crimes, which are remedied by punishment. Criminal jurisprudence dictates that the rewards of a crime must not exceed the punishment for the crime, if people are to be deterred from committing the crime. Similarly, the “theory of alarm” is considered when prescribing punishment for a crime, with greater punishment being the norm for bigger crimes that threaten society more than other offences. Of course, many heinous crimes have comparatively less punishment under the Indian Penal Code, while some acts that are arguably not criminal in any manner attract severe penalty. The recently decriminalised Section 377 is a case in point, with the Supreme Court acknowledging that homosexuality is a crime only from a prudish Victorian perspective of Lord Macaulay who drafted the Indian Penal Code in the 19th century, while the nation owes an apology to homosexuals for their prolonged suffering in democratic India under such an archaic law. Adultery and criminal defamation are perhaps going to face the same fate when the Supreme Court examines their legal validity. The British Raj felt certain crimes were more important to crush for its political survival and governance, while offences like molestation of women were low in their priority attracting only two years’ imprisonment. But comparison of modern laws with the 19th century IPC that needs an overhaul, serves neither logic nor purpose.
Before the Ordinance, we had a situation where triple talaq was illegal, but there was no punishment for committing such illegal act. What then, was the real deterrence? Why would a Muslim man bored of his wife, or a wealthy sheikh in need of a kidney from a girl he conveniently calls wife, not abandon her unceremoniously after she fulfilled his needs? The answer lies in punishment, which is finally on the books.