On September 19, 2018, the Union Cabinet approved an Ordinance banning and criminalising the practice of triple talaq in India. Was such an ordinance needed when the Supreme Court has already dealt with the matter? Having argued in the past banning triple talaq legally, it is a question we never thought we would be asking. But now we find ourselves bound to revisit the question after sensing the political obsession of the present regime behind. Thus, we worry. Because, the agenda of the ruling regime, as it appears, is neither social reform nor empowerment of Muslim women but a guided strategy to reap political dividends in 2019.
Deceptive Political Calculations:
In its calculated imagination, first, BJP is more interested in inviting conservative resistance from Muslim masses, scholars and clergy to appropriate the secular sense of majority. At the same time, their unpopular reactions will give free hand to certain media houses to strategically demonise Muslims to suit the party electorally. Second, through this ordinance, BJP is trying to push the opposition parties and particularly Congress to the wall in two senses: if the opposition parties support the ordinance, they will lose some supports among Muslims; if they oppose, they will lose credibility among many Hindu voters. Third, the 2019 election is going to be highly competitive and the winning margin may be extremely low. In this situation, even the slight shift in the voting pattern of women in general and Muslim women, in particular, will be advantageous to the BJP. Fourth, the emotive issue has the privilege of dominating the discourse on substantive issues. While hyping on triple talaq, BJP may try to divert the national attention from inflation, joblessness, fuel-hike, rupees decline and so on. To put it differently, the cultural system of Muslims has now become a playground for right-wing populism. The temptation to find more and more moral faults in the cultural system of Muslims is growing. The objective is to carve out morally superior ‘Hindu vote’ at the cost of stigmatic exclusion of Muslims.
At the most fundamental level, the practices of instant triple talaq could not be justified. As a result, the Shayara Bano judgment of the Supreme Court was applauded by the saner voices among the Muslim community. In many respect, it was truly a progressive judgment to save Muslim women from a ‘shotgun’ divorce system that allows men to use this tool to showcase their masculine power.
Post-Supreme Court’s judgment, it was almost settled that the unilateral and instant triple Talaq is neither an essential principle of Islam nor could be constitutionally guaranteed. It is also widely agreed that this form of Talaq is an undesirable human innovation to accommodate the pre-Islamic privileges of men over women.
Ordinance: An abrogation of Parliament’s Prerogative
Undeniably State has power to criminalize or making any act a civil wrong but it must be done through a legislative process. Any bill, especially which carries criminal sanction must be satisfactorily deliberated in the legislature but the political and superfluous upheaval in the instant case misdirected the entire debate. The opposition raised many concerns and some were genuine for instance, making offence cognizable, fear of prosecution will not result in abandonment of wife, a mechanism to make speedy and time-bound disposal of these cases either by family courts or special courts so that it does not become the victim of our traditional criminal justice complexities. Ambiguity appeared prima facie while reading section 5 and section 6 of the Bill which provided that a woman is entitled to maintenance and custody of her minor children. If the triple-talaq itself is void, there can hardly be a question of maintenance or custody, which are post-divorce institutions. The demand that the Muslim Women (Protection of Rights on Marriage) Bill 2017 should be sent to a Select Committee for further scrutiny was also part of the legislative process and should not be rejected outrightly and capriciously. The government honestly did not invite legislative debate on the bill and not introducing bill in the Monsoon Session only implies malevolence and nothing else. Law making is the privilege of the parliament and a political party in power cannot abrogate it for political benefits.
Bypass Surgery through Ordinance
Government is aware that getting an ordinance approved by both the houses of parliament is a distant dream, as government did not have even working majority in Upper House. An ordinance can function as law for seven and half months, a period which ends in April 2019 and may give the government a political mileage in five assembly polls followed by the crucial 2019 battle of Lok Sabha. Further, an ordinance is an extra-ordinary constitutional device that can only be used in circumstances, which render it necessary for the government to take immediate action and which cannot wait until the legislature reconvenes. But unfortunately, there is no emergent situation which is threatening public interest except the high-stake political battle. The power to promulgate an Ordinance is essentially a power to be used to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends" (D. C. Wadhwa v. State of Bihar)
There is a need to address the socio-economic miseries of Pre-and Post-Talaq Muslim women. The present government which is showing extraordinary generosity towards Muslim women should come out with policies and programme to rehabilitate the divorced women by creating guidance, counselling, rehabilitation and reformation centres,launching special welfare fund to enable the divorced women start a fresh life, ensuring the rights of Muslim women to get their due dower and maintenance and most particularly the share in their ancestral property, providing them better educational opportunities and vocational training and so on.
To sum up, certain changes in the cultural system of Muslims to give a sense of freedom to their women from being divorced unilaterally is the need of the time. In this pursuit, the progressive judicial pronouncements and legal relief/remedy are most welcome if they are in the best interest of Muslim women and those poor, semi-or-illiterate women who are easily discarded by their husbands and forced to leave a helpless and stigmatic life. But it is equally important that the law should neither be made in haste nor it should be mala fide in intention and certainly not unilateral without taking the apprehensions of the larger community into consideration. And thus, we do not justify the recent ordinance as it is being approved for political mileage with mala fide intentions than addressing the gender justice concern of Muslim women.
Dr. Afroz Alam is an Associate Professor & Head, Department of Political Science, Maulana Azad National Urdu University (MANUU), & Dr. Yogesh Pratap Singh is an Associate Professor of Law, NLUO Cuttack and Deputy Registrar, Supreme Court of India.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]