THE TALAQ HATRICK

by Harish Gupta, National Editor, Lokmat Group

With the courtroom battle for a seminal change in Muslim personal law—that of prohibiting the vile practice of giving divorce with the husband uttering the words ‘talaq’ thrice—now heading for climax, it is clear that the administration led by Prime Minister Narendra Modi has at last secured a bridgehead behind enemy lines. For the initiative to bring the matter of ‘triple talaq’, the nikahhalaal (compelling a divorced wife to consummate marriage with some other person and getting divorced by him before being allowed to remarry the first husband), and polygamy has come neither from politicians of any hue nor from the Islamic clergy and scholars. It has come from Muslim women, whose resentment against such misogynism in the name of religion was simmering over decades.

The practice of triple talaq, which is now being conveyed even through WhatsApp and text messages, is alleged by some of the leading Muslim women’s organization to be “un-Quranic”. Under the banner of Bharatiya Muslim MahilaAndolan (BMMA), an Indian Islamic feminist organisation and other bodies, signatures of over one million Muslim women were collected on a petition demanding abolition of triple talaq and nikahhalaal for being un-Islamic. Simultaneously, two women, Shayara Bano and Afreen Rahman, unilaterally divorced by their husbands, approached the Supreme Court with the same request.

The government has become a party as it strongly supports the Muslim women’s demand. “Lives of Muslim women cannot be allowed to be destroyed by triple talaq”, Modi announced at a pre-election rally in Bundelkhand last year. And now the Supreme Court has asked all sides to submit statements, including the government, the Muslim women’s organisations, as well as the All India Muslim Personal Law Board (AIMPLB) that administers Muslim personal law and is opposed to any change in the existing system. March 30 is fixed as the date for the written submissions. A five-judge Constitution bench will decide issues relating to legal aspects of the practices of triple talaq, nikahhalalaand polygamy among Muslims but will not include in its ambit the overall question of divorce within the Muslim law. The bench, headed by Chief Justice of India JS Khehar, made it clear that it would not deal with the politically thorny issue of Uniform Civil Code, which is now under consideration of the Law Commission of India.

The AIMPLB, on its part, is invoking the divine Sharia laws on one hand and, on the other, drumming up support among opposition political parties for the issue of Muslim divorce to remain under its grips. It held rallies in Kolkata, where Trinamool Congress chief minister Mamata Banerjee, known for her vote-bank politics, sent two of her powerful ministers to be seen on the dais. More recently, during the ‘demonetisation’ furore, she reminded Modi that the difficulty that had been caused to ordinary people due to scrapping of 500 and 1,000-rupee notes would prompt them to “give BJP triple talaq”.

India’s 15 per cent Muslim voters have always been a foil for the BJP; hardly any prominent member of the community is known to support the party that has barely concealed contempt for the Constitution’s secular ideals and its supporters have been involved in communal riots. But the simmering discontent in the Muslim households on the triple talaq issue has given the BJP under Modi a foothold it never dreamt of. In Uttar Pradesh, the 19 per cent Muslim voters have voted in an unexpected way. In most of the state east of Allahabad, Muslim women have reportedly voted against the diktat of the mosque leaders to press the voting button in a tactical way so that the constituency’s winnable ‘secular’ (non-BJP) candidate—be it from SP or BSP—gets the vote. They have voted instead in accordance with their conscience, which has often turned poll strategists’ calculations on their head. On the other hand, in the riot-prone western Uttar Pradesh district of Muzaffarnagar, with 40 per cent Muslim population, the minority women have either voted for BSP, or have wasted their vote in some way or the other. In Muzaffarnagar, which witnessed horrible riots in 2013, the then ruling SP not only failed to resist the riot but sided with the clerics who were supporting triple talaq. Hence the Muslim women’s support for rival BSP. But what is more important is that they were unmoved by the prospect of the BJP winning by their refusal to obey the mosque’s instruction. In fact the BJP has won all the six assembly constituencies in the district.

For the BJP, it was a Trafalgar moment. For the first time, the Muslim society seemed open to negotiations. It was so much different from the Rajiv Gandhi government in 1985, when it lacked the courage to give effect to the Supreme Court judgment on the Shah Bano case (giving proper alimony to divorced wife); instead it brought about a clearly illogical amendment to an existing law to leave the Muslim divorce norms as patriarchal as ever.

The difference between Rajiv Gandhi in 1985 and Narendra Modi in 2017 is not only the long span of 32 years that separate them. The years have brought about drastic changes in the Muslim mindset, with a new generation of lawyers, doctors, accountants and other professionals among women in the community now crying for attention as a class demanding gender equity. The BMMA is a prism onto it.

Will the male chauvinist AIMPLB give way? Much depends on how the Supreme Court frames its judgment. If the apex court focuses on triple talaq, it is unlikely that the legal opposition to it will hold. And its credit will go to Narendra Modi and emergence of a new BJP. 

Why Muslim women will thank Modi

by Harish Gupta, National Editor, Lokmat Group

By opposing the Muslim marital practice in India of "triple talaq", the Narendra Modi government, in a submission to the Supreme Court last week, has taken a bold move that previous governments didn"t dare. The ministry of law and justice, in its affidavit, pointed at the constitutional principles, like gender equality and secularism, and said: "The fundamental question for determination by this court is whether, in a secular democracy, religion can be a reason to deny equal status and dignity available to women under the Constitution of India".

While Muslims, the largest minority group, are free to abide by their personal laws for marriage, divorce or inheritance, women"s rights activists have been strident for a long time in their demand for reform of the archaic and oppressive divorce. It allows a husband to divorce a wife who has fallen out of his favour simply by using the shortcut of uttering the word "talaq" three times at her.

Islam"s holy book, the Quran, constructed its rules of matrimony as a social contract. It has provision for divorce if it is exercised in a sequential manner, with a gap of 90 days between each step. These gaps leave sufficient room for reconciliation and negotiation. The final separation, "Talaq-ul-Bidat", comes after exhausting all options of rapprochement. It is not too long after the Quran was written that Islamic scholars of various schools devised the quick fix of saying three talaq at the same time. That gave a misogynist edge to Islamic personal world throughout the medieval and early modern ages. It changed around the early twentieth century, with Turkey adopting the western civil laws and Egypt banning triple talaq. Now as many as 22 Islamic nations, including Pakistan and Bangladesh, have abolished it. Besides, there is no triple talaq among Shias, making Iran free from its bane.

In India, stonewalling of reform of the Shariat Application Act, 1937 is the handiwork of an orthodox group in the Muslim community that controls the network of mosques and madrasahs, and plays on the collective insecurity in the minority psyche. A book published by Bharatiya Muslim Mahila Andolan titled "Seeking Justice Within Family" lambasts the practice. It said fast-track divorce regime enabled by the one-sided and male-chauvinistic law has led to untold misery. Hundreds and thousands of poor Muslim women and their helpless children live in shanties. The organisation found that out of a sample of 4,710 women, as many as 525 were divorced. Of them, 346 were divorced verbally, 40 by letter of divorce and three through e-mail. The divorce rate among Muslims is higher than any other religious groups. But the slapdash method of divorce, and the law"s silence on continuous and meaningful maintenance for the children, has turned many Indian Muslim households into nightmare for the womenfolk. Women activists have correctly pointed out that the pauperization of Indian Muslims as a community, as noted in the Sachar Commission report, is substantially due to the inhumanity inherent in the divorce law.

However, the government wouldn"t have been called upon to take the initiative in banning triple talaq 

if former prime minister Rajiv Gandhi had not seriously erred on his judgment 30 years ago. In 1986, Shah Bano, a 62-year-old Bhopal housewife, who had been turned away from home by her husband employing triple talaq, had found the Supreme Court by her side. The court disregarded her husband"s interpretation of the Sharia on constitutional ground, and made the divorce conditional upon compensation to be paid by him in conformity with civil divorce. But Rajiv Gandhi buckled under pressure of his advisors, who were against upsetting a "vote bank". Besides, he surrendered to powerful pleading by the orthodox All India Muslim Personal Law Board (AIMPLB), an elite minority group closely connected with the network of mosques and seminaries. Rattled for no ostensible reason--the Congress under Rajiv enjoyed absolute majority in the lower House at that time--the government enacted a new law in record time to limit the Supreme Court"s power via-vis Muslim personal law. It is an irony of history that the same AIMPLB is the main opponent to the current move to finally reboot the Muslim divorce law. And, unlike in the days of Rajiv Gandhi, the party now in power neither has a Muslim vote bank nor has to worry about electoral backlash from a community that hardly votes for it. There is every possibility, therefore, that a decision of the court in favour of the women activists" petition will lead to a new legislation that brings Muslim divorce law at par with that prevailing for other communities.

However, the public opinion created among Muslim women, and many educated men, against the injustice done to the society's weaker members under the cloak of religion underlines the necessity to discard fixed ideas about any community. In Pakistan, Mohammed Ali Bogra, the prime minister in 1955, fell in love with his secretary whom he married by divorcing his earlier wife calling triple talaq. It created such furore that the government had to enact a new divorce law in which it became necessary for a disgruntled husband to file a complaint against his wife to the union board (local administration) chief before divorce, and send the wife a copy to exercise her right to reply. At its birth in Bangladesh in 1971, it inherited from Pakistan the amended divorce law.

The Islamic nations that are also democratic have no compulsion to look upon their Muslims as vote bank. That may be the reason why their personal laws have kept pace with time. In India, on the other hand, the government's hyper-sensitivity about not offending the conservative mullahs tied its hands. It is good news that a party that does not give a hoot to the electoral blessings from a community is taking measures that will benefit its members over generations.

Penitence in Public Life

Emperor Asoka is one of the biggest achievers in ancient India. He carried Buddhism from a local faith to that of being a global religion. But his other big achievement was in abjuring violence in a dramatic manner and accepting peace. He got this story told to the posterity in powerful language in his edicts that say a lot about the mayhem he had himself caused in Kalinga, and his thoughts thereafter. The longest among the edicts reads: “150,000 persons were thence carried away captive, 100,000 were there slain, and many times that number died”. His penitence followed. “Directly after the annexation of the Kalingas began His Sacred Majesty’s remorse for having conquered the Kalingas, because the conquest of a country previously unconquered involves the slaughter, death, and carrying away captive of the people.

After annexing Kalingas in the 3rd century BC, King Ashoka understood the virtue of penitence in public life. Why leaders do not understand it today

That is a matter of profound sorrow and regret to His Sacred Majesty”. It is doubtful if history would have remembered Asoka for his conquests alone. But since the discovery of his edicts and coins by 19th century British civilians in India, he captured the imagination of Indians as a king who not only felt remorse for his past wildness but could turn his repentance into an ideology which traveled far and wide.

His story acquires relevance in today’ context, against the background of the travails of Narendra Modi, a leader whose governance talents and iron will undoubtedly makes him a deserving candidate for the post of prime minister. Yet he is in a limbo because he has not thought it necessary to show any remorse whatsoever for the horrendous 2002 riots in Gujarat under his charge. True nothing has been proved so far to implicate him personally in the communal holocaust killing 1,200 people, mostly Muslims. Nevertheless, one of his ministers, a woman,  has been sentenced with prison term; another is facing trial; and the allegation that the police took too long to appear on the scene is an accepted fact. Maybe much of the violence had happened without Modi’s knowledge, as mob fury has its own dynamics, but he still remains morally accountable as the state was under his charge and it was his remit to maintain public order.

With Bihar Chief Minister Nitish Kumar, whose JD(U) is a coalition partner of Modi’s BJP, absolutely unwilling to accept Modi as the alliance NDA’s candidate as prime minister for the 2014 Lok Sabha poll, what has come into focus is the importance of penitence in public life. The value of atonement is not merely derived from the Bible, or the life of Asoka. If Modi had in all these eleven years made a single public gesture to express grief for his administration’s failure to prevent the riots, the atmosphere would have been different altogether for him. Instead he issued a half-hearted apologia before the assembly elections last year, with no mention of what was it about. A heartfelt “sorry” for the 2002 massacre would have erased many bitter memories from public mind of his own vitriolic utterances, including his citing, at the height of the violence, Newton’s law of motion about each action drawing an “equal and opposite reaction”.

One understands why it is so difficult for Nitish to accept Modi as NDA’s candidate for the post of prime minister and yet remain in the coalition. Far from its being a refusal born out of jealousy, it is an expression of helplessness. Bihar’s capital, Patna, is the place from where Emperor Asoka ruled over a vast empire in the 3rd century BC. In today’s Bihar, Muslims are 17 per cent of the population and are a community known to vote en bloc. Despite protestations to the contrary by Modi’s influential advocates in the media and elsewhere, the fact remains that Muslims have not pardoned him after 2002, not to speak of voting for him or his party. It is no wonder that he does not field a single Muslim candidate in the state’s assembly elections. It doesn’t matter as Gujarat has just 7 per cent Muslim population; they are scattered, and are too timid to matter electorally. But Nitish presides over a broad alliance of Muslims, a section of OBCs and dalits. In 2005, he managed to show the door to Laloo Yadav and his RJD precisely because Muslims as a community had switched sides. There could be other reasons too that had led to the ouster of Laloo Yadav, but getting Muslims over to his side was Nitish’s trump card. And now the BJP is cajoling him to give up his hard won constituency by riding the Modi bandwagon.

The 2002 Gujarat riots may be an old story but it has an unending recall value, somewhat like Stalin’s gulags, Hitler’s pogrom, or, looking closer to our times, the three-day-long massacre of Sikhs in Delhi and some other places in early November 1984, following the assassination of Indira Gandhi by her own Sikh bodyguards. Its long shelf life in public memory is evident from the allegation against former Congress minister Jagdish Tytler that he played a key role in the riots near a Gurdwara in the capital leading to the death of three persons. Like Modi, Tytler never publicly regretted his role. He is of course not a gifted leader like Modi but he has the same arrogance of power, which people would neither forgive nor forget. The day last week when a Sessions Court ordered reopening of the investigation against him, 29 years after the incident, there were sizeable crowds of ’84 riot victims and their relatives who had assembled outside the court to demand his fair trial. Modi’s plight is on a larger scale. He is unlikely to get powerful allies in states with 15+ per cent Muslim population, like Assam, West Bengal, Uttar Pradesh, Bihar and Kerala. These states account for 36 per cent of total seats in the lower house.

Asoka had ruled two millennia before modern democratic states came into being, but he understood the virtue of penitence in public life, and that of moderating one’s pride of power with a credible concern for the welfare of every section of the populace. It is a pity that Modi has not cared to understand the message of Asoka’s edicts. Maybe India will be the loser, for it genuinely needs the leadership of an “iron man”, or perhaps an “iron gentleman”.

(The author is the National Editor of Lokmat group)