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The case against “The case against abolitionists”

Or alternatively, “An abolitionist’s case against triple talaq”/a response article to an article advocating the retention of triple talaq.

This article is the definite case of triple talaq apologia that has sprouted out many a times from many in the wake of the triple talaq debate. Just a day before, Manu Joseph wrote an article on how triple talaq is not really that different from how “modern couples” split. The former article advocates the promotion of “community rights” over individual fundamental rights, rather shockingly for a very senior divorce lawyer in the country, and the latter is an illustration of cocooning or “the bubble” that “Liberals” live in.

I shall deal with Manu Joseph’s article later. His writing makes the reader rather tired, (or at least, it made me tired), and I shall attempt to respond to him later. But for Ms.Malavika Raokotia’s article, here goes:

In “The case against abolitionists” , Ms.Rajkotia indulges in the sort of selective reading and one — eyed analysis that one might for a second question the credentials of one of the “senior most divorce lawyers” in the country. The article, an apologia and justification of the vile, barbaric practice of triple talaq, starts rather ironically with the lines:

“The Constitution is not a hammer to beat people with, but an ideal that allows for steady, organic evolution. While ensuring that popular morality does not castigate minorities, it provides spaces for change.”

By implication, it seems that Ms. Rajkotia believes that my statement above — that triple talaq is vile and barbaric — is ‘the castigation of popular morality’ on minorities. This is a very clear, neat example of how “Liberalism” and “Liberals” fail to place Islam and its practices through the same filter and tests that other religions and put through.

Yeah, this actually happened. The tweet is available here.

Malini Parthasarathy, the former editor of The Hindu, too, in fact believes that the belief in such concepts of fundamental rights of citizens or the advocacy against child marriage is the imposition of the will of the majority on the minority.

Ms.Rajkotia seems to be of the same brand, mistaking objectively vile and barbaric practices for “religious or cultural practices” that does not come under the purview of law. She then makes the argument that the triple talaq issue is “less about gender and more about the eroding of the identity of a community that defines itself by religion and culture”. One must remember at this point the codification of Hindu Personal Law by Nehru. In his exercise, Nehru reduced the diverse practices of the Hindu community to a cinder block. The matrilineal Nairs of Kerala and the patrilineal Rajputs all governed by the same set of laws, ignoring the customs, beliefs and practices of all Hindus.

Back to the article: ‘The point is “religion and the Constitution” and not “religion versus the Constitution,’ the author argues, taking on PB Mehta’s notion which he had expressed in his Indian Express article. I broadly agree with the idea that religion and constitution must be read in a complimentary fashion and not in the adversarial method of “religion versus constitution” that Mehta proposes. But to read the constitution and religion in a complimentary fashion is only possible to a said limit, not to the extent that Ms. Rajkotia proposes. When the religion and constitution is in conflict, what will one do?

It depends in my opinion, on the context of the conflict. In the triple talaq issue, the conflict is simple: Islamic Personal law is in direct conflict with the Fundamental Rights of Muslim women, guaranteed by the Constitution.

The authour, however, has adopted another method to defend triple talaq:

‘He (PB Mehta) forgets that freedom of religion is a part of constitutional morality as contained in Part III of the Constitution. Article 25 guarantees “freedom of conscience and free profession, practice and propagation of religion”.’

I myself have doubt of the existence of “Constitutional morality”, but the point that I would like to make is that the author, a very highly respected lawyer, ignores Article 25 (2) (a) of the constitution. It goes thus:

(Nothing in this article shall affect the operation of any existing law or prevent the State from making any law)
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

The question then, is whether the act of marriage and personal law is under the purview of this section. If it is not, then surely, the overhanging Clause 1 of Article 25, which goes

“Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”

Does this not apply to Islam & Islamic practices in the country?

The article grants a citizen the freedom of conscience and free profession, practice and propagation of religion PROVIDED among other things, that it does not violate Part III of the constitution.

Does triple talaq violate Fundamental rights? The Answer is YES. & there is no way out of this fact.

After this, the author conjures up a most awe-some paragraph, which at first glance, makes a logical and coherent argument, but the longer you look at it, the argument evaporates, almost instantly with the application of facts:

“The triple talaq abolitionists plead erosion of the fundamental right of women to equality since the right to unilaterally revoke a contract leaves her vulnerable. Any husband (of any community) calling for a divorce against the wishes of the wife is painful. However, resistance to divorce by one spouse does not preclude the other from asking for it. If one wants out of the marriage, the other cannot seriously insist on a meaningful continuance of the marriage. To view it any other way implies that a woman is vulnerable without male protection, even if it is dissatisfying.”

Yes, the author is correct. If in a marriage, one party wants out of it then there is no way out of it, the marriage from that point on wards is meaningless, no doubt.

But what the authour very conveniently forgets to mention that the marriage and separation of all communities, except for the Muslim community, is regulated by the law of the land. If a Hindu, Christian or Sikh couple wants to have a divorce, the same is regulated by family courts in the country. What this ensures or who is empowered by this is very plainly clear.

The next argument that is presented is the classic arguments that anyone can make against law regulating a societal practice: that it will be ineffective due to the fact that society will practice it regardless: only a mind-set change can solve the issue. And yes, an example, so easily given by every person who is an apologist for triple talaq is given: the Dowry Prohibition Act.

The argument above is logically sound; that only a change of mind-set can reform a societal practice. But that is no argument that can be used for the retention of triple talaq or that of any practice that violates rights that are guaranteed by the constitution. The law cannot wait for the people to catch up, the law must be the leader for change, after it is the ultimate instrument for it.

The author then proceeds on to the legal side of the debate: that there is no law for the court to rule upon, no statute that has been challenged, and that personal law is not law as per Article 13 (which defines law), due to the curious judgement in The State of Bombay v. Narasu Appa Mali by the Supreme Court.

Yet again, the authour ignores some facts, very conveniently. There is a law that the court can rule open, and that is the Muslim Personal Law (Shariat) Application Act of 1937 which gave application to Islamic Personal Law in India. Section 2 of the act reads thus:

Application of Personal law to Muslims. — Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat).

Through this legislation, Shariat becomes the law governing Muslims in the country, and thus Law as under Article 13 of the constitution, and then, the court can rule upon its constitutionality. (Talaq, of course is mentioned, and triple talaq — or instant triple talaq — is “talaq-i-bidat”, one among the 3 versions practiced by Sunni Muslims in India. To argue then that there is no law for the court to rule upon would be a misrepresentation.)

The author then proceeds to argue that Muslims of India “have a right to practice it [Islamic Law]”

“Islam as a practice is legalistic with detailed rules on conduct. The forms of divorce are part of its religious practice. One may not agree with it, but Muslims have a right to practice it. If the community has differences on codes of practice, it will resolve them itself. Muslims also have the right to question being represented by the All India Muslim Personal Law Board. In fact, there is a Muslim women’s board as well.”

Islam, of course, is a supernumerary entity with detailed rules on political, social and economic life. That much is true. It is the third sentence that one cannot digest in full earnest — that Muslims ‘have a right to practice it’. There is no such right — as I have made clear before, Article 25 does not give you a blank cheque to practice religion and its rules that feels like.

The next sentence is also equally alarming — are we then to allow Child Marriage among the various communities in India, considering the fact that there may exist ‘differences on codes of practice’ and existing statutes? Should conflict then not be resolved by itself?

( One may also be compelled to bring in Sati or so on, and for those thinking that I am using a straw man argument by comparing what is promulgated in a statute (the prohibition of child marriage) to something that is not (triple talaq), do you really think that triple talaq does not fundamental rights? )

I would also not see the All India Muslim Personal Law Board (AIMPLB) as the representative of Muslims. It is merely an NGO, and was formed to oppose Indira Gandhi’s progressive adoption bill, and intends to full promotion of Shariah in the country. I would see the AIMPLB as the voice of a set of conservative and regressive Muslims and nothing more.

The author, later in the article mentions that

“Islamic personal law emanates from a contractual form of marriage that can be terminated by either party (women have the right of khula).”

This is a disingenuous argument, to say the least. The termination of marriage through triple talaq or its cousin’s talaq-i-hasan or talaq-i-ahsan, all are one sided terminations of the ‘contract’ (marriage) with absolutely no recourse in law. Khula is a mutual form of divorce that is allowed under Islamic law and in no other way similar to triple talaq.

The last paragraph repeats something that the author has spoken of before, that of the need for economic empowerment of women. I wholeheartedly accept this proposition, that the economic empowerment of women is of the utmost importance, but pretending that allowing the flourishing of 11th century regressive practices by law in the country is in any way acceptable (in the same outlook) is gory and scary.

The other proposition — that the empowerment of women is to be achieved by the use of legislation, reeks of statism that stifled the country for a good part of 70 years, and continues to do so. Unless the legislation is to deregulate or reduce regulation of the economy, count me out.

This article, which is at the end of the day an article that supports triple talaq and its usage by a well-respected lawyer is appalling and depressing in equal measure. The article, rather ironically concludes with “Justice must be done but it must also seem to be done to Muslim women and their community.” When it advocates that the same not be done!


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