Last week, the five-judge Constitution Bench of the Supreme Court completed its hearing of a batch of petitions challenging the constitutional validity of triple talaq.
While India awaits the judgment, the circumstances surrounding this case itself offer hope that after a long, long, time there is some movement towards ensuring that Muslim women, like all other citizens, will experience the Constitutional provisions specially in regard to equity and equality.
The reasons for such hope are as follows: Despite the oppressive social environment in which they live, thousands of Muslim women are openly coming out against triple talaq and are demanding to end this obnoxious, one-sided system of divorce.
Secondly, unlike the Congress governments of the past which lacked the will to assert the supremacy of the Constitution when it came to personal laws, the Narendra Modi government has taken a firm stand to uphold constitutional values. It has said before the court that “gender equality and the dignity of women are non-negotiable, over-arching constitutional values”. It has asked whether in a secular democracy, religion can be a reason to deny equal status and dignity, available to women under the Constitution.
While personal laws serve the purpose of preserving diversity, can they undermine gender justice, which “is a constitutional goal of overwhelming importance”. This is in tune with the statement which Modi has made more than once: The Constitution is the supreme text. Thirdly, there is a growing national mood to end anachronistic practices and celebrate the freedom enshrined in the Constitution. The mobile revolution (Indians own 1200 million cell phones); the rise of social media has triggered an information revolution that patriarchs can never block; and most importantly, the rising literacy levels among women including Muslims, have contributed to a situation where in some correction may be possible.
Thanks to some concessions made at the time when the Constitution was written and the exigencies of electoral politics over the last seventy years, some of the most demeaning and unconstitutional provisions in Muslim Personal Law, have been dignified as “law” and allowed to override key constitutional provisions that guarantee gender equality, equality before law and equal application of laws and right to life and dignity.
Over the last seventy years, problems such as these have festered for a long time because of the absence of clarity on where and how to fit minority rights and religious rights into the overall constitutional scheme. The problem dates back to 1946. Eight months prior to Partition, the Constituent Assembly had begun work to draft a democratic Constitution for undivided India. The Muslim League wanted elections be held on the basis of separate electorates for Hindus and Muslims. But, even before this exercise could get anywhere, Partition became a reality and most of the leaders of the Muslim League moved over to the separate Muslim state they wanted—Pakistan. But some stayed back.
When India’s Constituent Assembly resumed its work, the leaders of the Congress Party were hoping for some sanity within the Assembly as they picked up the threads to write a democratic Constitution. But they got the shock of their lives when Pocker Sahib, a member from Tamil Nadu demanded that elections to the central and provincial legislatures be held on the basis of separate electorates. He argued that “non-Muslims would not be able to understand the needs of the Muslim community and therefore the Muslims should constitute a separate electorate”. Leaders like Sardar Patel and Govind Ballabh could not believe their ears. Patel said “In this unfortunate country, if separate electorate is going to be persisted with even after the division of the country, woe betide the country. It is not worth living in.”
The leaders stood firm and nipped this mischief in the bud, but they did not remain firm on the issue of a common civil code. Thanks to sustained resistance from Muslim members, the idea of a common civil code was put in cold storage and moved to the Chapter on Directive Principles of State Policy. Muslim members objected to this as well. But, Dr Ambedkar refused to yield. He said the state had the right to legislate on issues like marriage and succession. But, the fact was that despite the creation of Pakistan, leaders of the Congress Party buckled under the pressure of the so-called representatives of the Muslims, who chose to stay back and deprived India of a Common Civil Code that would have ensured that all personal laws were within the ambit of the Constitution’s core ideals.
Thereafter, within decades of independence, competitive electoral politics led to the appeasement of Muslims, which is reality was reduced to appeasement of the mullahs. The Congress, since the days of Nehru, mastered this art and treated the Muslims as a vote bank. It constantly appeased the mullah by signalling to him that his personal laws would never be touched and that the Common Civil Code was just a chimera.
Later, other political parties got into the act and vigorously pursued the politics of mullah appeasement. As a result, in 1963, when the Union Government wanted to set up a committee to examine the changes in Muslim Personal Law in Islamic countries, there was vehement protests from the clerics and the idea was abandoned. In the later decades the mullahs forced Indira Gandhi to abandon a move to bring in a common adoption law. They forced Rajiv Gandhi to bring in a legislation in the Parliament to undo the Supreme Court’s verdict in the Shahbano Case, which gave relief to a divorced Muslim woman in distress.
As stated earlier, the circumstances are now fortuitous. This case therefore can be the turning point. Let us keep our fingers crossed!
A Surya Prakash
Chairman, Prasar Bharati