The whole issue of triple talaq is resounding with conversations on gender equality and rights of women and minorities. There is sudden “awakening” about women’s rights and gender equality. It cannot be mere coincidence that this matter was chosen to be heard by Supreme Court in vacation while delaying equally important issues of right to privacy and threatened surveillance by government through mandatory nature of Aadhar card which is likely to be fate accompli by 30th of June 2017.
In Court there are many voices arguing from different locations on both sides of the case. There are apparent “defenders of women’s rights” who have continuously excelled at violations of rights of women and minorities. There are those that are speaking of minority rights by speaking of privileges of men at the cost of women. And then there are others who unequivocally talk about rights of women and minorities in an unequal society, but differ in political perspectives and understanding.
Since everyone is articulating the rights of Muslims or women, as a collective that has been concerned with issues of patriarchy, majoritarianisms of all kinds, and all kinds of structural injustices and inequalities, we write this article to bring forth more nuanced points in the debate.
First of all even though we do engage with law reform very often we wish to state that we believe that law reforms are not substitute for revolution/bringing in drastic changes, and court battles cannot replace movements for justice and equality. The struggle for equality before courts is only one small measure in the overall struggle for justice, equality or even economic rights. And yet we do believe it is vital and we come to it later.
We would like to begin with unravelling the four major contending arguments put before the court and analyse them in the present political and cultural context because court proceedings also have to be understood within it.
The first argument is put forth by the current ruling party and its government, which claims to argue on basis of gender equality while in practice encourages and promotes and harbors injustice and inequalities. This is the most ironical moment when they dare to speak of protection to Muslim women. This government has not stood for justice for anyone ever, let alone women from minorities. This attempt at hitting at minorities or marginalized community by targeting the women through sexual violence or by feigning to support gender rights is not going to fool any of us in the movement, who come from different religions, castes or genders, and even those who do not practice any religion. Even if the court cannot, we must call the bluff of this government to their face.
This government’s lawyers have set free in various courts through STF and NIA perpetrators of crimes against Muslim minorities (whether accused Pragya or Aseemanand), have never provided any relief to survivors of communal carnage and sexual violence, whether in Gujarat 2002, or Muzaffarnagar in 2013. Through promotion of vigilante groups either as gorakshaks or Romeo squads acting against love jehads and for so called gharwapsi, they have not only supported lynching of people from marginalized sections, but they have attacked Muslim women in particular. They have imposed upper caste, Brahmanical food habits on entire populations through beef ban, and particularly destroyed Muslim and Dalit people’s livelihood and right to food. This is the same government which refuses to set aside IPC section 377 which criminalizes and denies equal rights to non-heteronormative citizens and now want us to believe that they stand for rights of Muslim Women.
Enough of crocodile tears by this government which is directly and indirectly deliberately causing pain to Muslim women by putting them under a constant insecurity of being from a minority that has to undergo deprivation of opportunities of education, occupation, infrastructure, or face the all time nightmarish experience of raids and getting falsely identified as terrorist or anti-national and never respected as valid citizens whose human rights need to be protected.
The other set of arguments from the opposite end and in the interest of minority rights are from the view point of AIMPLB who claims to represent entire Muslim community and promises to voluntarily do away with instantaneous triple talaq through use of social boycott, but considers itself the divine authority to lord over all women in the Muslim community. And therefore prays that Courts should not interfere in realm of personal laws which are part of religious faith. In keeping minority rights confined to those of men, they act against the women of the Muslim community thus marginalising them even further.
Between these two opposites, both being as concerned about rights of Muslim women are the others who truly work with Muslim women.
BMMA makes an attempt of supporting gender rights by arguing that the unilateral triple talaq in one sitting is not integral part of religion and hence has to be done away with. It still does not challenge the unilateral nature of the triple talaq, given in multiple sittings, neither does it want to challenge discriminatory religious practices arguing within a constitutional framework and for realisation of gender justice.
It is the fourth view point coming from various women’s organizations working with Muslim community, represented by Bebaak Collective and others, rooted in human rights, which is demanding equal rights guaranteed by Constitution of India. It is based on the understanding that all religions are necessarily patriarchal in nature and exercise gender discrimination in various degrees. Personal lives and rights of persons and citizens in family and community cannot be ruled by such religious practices and hence all personal laws need to be tested against the equal rights guaranteed by the constitution of India.
Apart from these direct arguments for and against judicial intervention in the issue of triple talaq (since the court refused to hear on other matters like halala and polygamy) there was also the argument put forth by Flavia Agnes (which incidentally is being carried forward by AIMPLB counsel Kapil Sibal in the print media) which contends that: “What was most intriguing was that the core concern of the entire litigation — protection of economic rights of women — did not get foregrounded in the marathon discourse…….There was a presumption even among those espousing the feminist cause that the fundamental rights of women under Article 21, the right to a life with dignity, will be protected if the violent and abusive marriage lingers on until a civil divorce on fault grounds is secured.”
To this we respond emphasising that: The struggle for economic rights of marginalized in society, will only be weakened if the unilateral decision making authority of the power wielding sections is not challenged.
By not challenging unilateral nature of talaq, we in fact leave women bereft of any bargaining power in the institution of marriage, which is based on inequality. If marriage is broken down irretrievably then it is not in anyone’s interest to prolong the same. But we can agree to irretrievable break down of marriage only if economic obligations arising out of this unequal marital contract are full filled. We also believe that not only men but women too have equal right to no fault divorce irrespective of which religion they come from (again conditional upon fulfilling economic obligations).
Even in today’s “developed” India marriage is seen as job for many women, especially those who have been denied education and opportunity to earn their own living through other social labour. The institution of marriage is an integral part of the hetero normative, capitalist and casteist, patriarchal society where marriage is defined in religious context and cannot be seen simply as ontract between equals. We have to recognize that in the contract of marriage women have unequal bargaining position, defined by their gender, and hence glorifying the fact that marriage is a contract does not by itself give justice to women. Just like in cases of contract labour we need to provide affirmative laws and ensure rights of workers, we need to extend the same principles to this “domesticated” institution of marriage, irrespective of religion. One only needs to see in practice what happens to contract workers, who can be fired at whims of their employer.
In the early 20th century the Supreme Court of USA struck down all legislations which were beneficial to the labour on the ground that these legislations interfered with the freedom of contract of both labour and capital. It was only in 1930s that the US supreme court recognized that labour and capital are unequal parties in a contract and therefore State intervention through laws and policies is needed in order to reduce the disparity of the contracting parties. It is with this recognition that eight hour working day and provision of minimum wages came about.
In other religions where unilateral nature of talaq does not exist women continue to be exposed to economic deprivation and violence, and hence women’s rights activists have fought to bring in remedies through DV Act, sections like 498A. This legal course of action is available to all women irrespective of religion. Thus by doing away with unilateral talaq one is not lingering abusive marriages but strengthening the bargaining power of women to fight back the inequality embedded in religious practices.
Today for enforcing any kind of economic rights associated with institution of marriage or family whether it is maintenance, matrimonial property rights, or inheritance in disputed cases women, including Muslim women need to approach judiciary. It is true that majority of women irrespective of religion are unable to access judicial system effectively, just as workers do find it difficult to access courts and get verdicts of economic entitlements in their favour. But in the absence of such laws, even sections of marginalized who can access the courts and get justice in their favour would be denied this legitimate avenue of establishing their rights and getting justice.
Lastly we would like to emphasis that as rightly put forth by Senior Counsel Indira Jaising this is a battle for equality on behalf of almost half the citizens of India. To call it anything else would be to divide marginalized sections in their struggle for equality on basis of religion, caste or gender, a great disservice to humanity at large.
Forum Against the Oppression of Women, ‘FAOW’ is an autonomous, voluntary women’s campaign group, consisting of women from varied backgrounds, putting forward an intersectional understanding of women’s lives that foregrounds caste, class, religion, sexuality, and regional realities of women’s oppression in campaigns and struggles.