On Tuesday in a landmark 3:2 judgement, Supreme Court invalidated the practice of triple talaq among Muslim community. The court declared the practice whereby Muslim men divorce their wives by uttering the word Talaq thrice as an irregular or heretical form of talaq. It therefore said that the practice must be held to be violative of the fundamental right contained under Article 14 of the Constitution of India. However, the court hasnt strictly looked at the practice through the prism of the fundamental rights guaranteed by the constitution but first and foremost deemed it as antithetical to the religion itself.
One of the judges Justice Kurian Joseph contended that the triple talaq was not a part of the Islamic religious practice and is against the basic tenets of Islam. At the same time, the Chief Justice J S Khehar counselled absolute restraint in matters of the personal laws, saying they enjoyed constitutional protection, an observation which is certain to also reassure people in Valley anxiously looking forward to the courts decision on Article 35A. By rallying around the personal laws, Chief Justice Khehar has made it clear that these laws are a subtle trade-off between fundamental rights and the religious freedom and thus their validity cant be entirely judged by the yardstick of the constitution.
Same parameters should apply to Article 35A. It is a sacred covenant between J&K and the Republic of India and it cant be set aside merely by invocation of the constitution of India and fundamental rights. Such absolutist and legalistic view of a politically complex issue will only further complicate the issues in Kashmir.
A nuanced and a restrained judgement in Triple Talaq has been largely welcomed by the Muslim community. Even All India Muslim Personal Law Board has fallen in line. So has more or less Deoband which has said that it has itself always discouraged the practice.
Having said that it would hardly be possible to ignore the politics that aurrounds the SC judgement. Over the past three years, it was one of the BJPs flagship Muslim issues. The issue has received the attention and the media focus which is disproportionate to its fallout on the Muslim society. According to 2011 census, divorce rates are highest among Christians and Buddhists and lowest among Jains. Even between Hindus and Muslims, the separation rate is higher among the former. Only around five in thousand Muslim women are divorced. But the BJP made it one of its major Muslim issues. Though apparently an attempt to reform the Muslim community, the BJP framed even this issue in terms of its communal politics. Ever since its founding, BJP attempt has always used Muslim community to unite and consolidate Hindu vote bank. And the one sure-fire way to do has been to invoke the hate against Muslims. This has been one abiding template of the saffron politics in the country. When all else fails, BJP raises Muslim bogey to try and forge a monolithic Hindu vote bank. The strategy has been a factor in the rise of BJP as a national party, up from two seats in 1984 polls. While the judgment on Triple Talaq certainly has a constructive dimension, it doesnt detract from the force of the contention as to why reform should only be rammed down the throats of the Muslim community. Why not the other communities too.
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