—Menaka Guruswamy, Fellow, Wissenschaftskolleg zu Berlin and Advocate, Supreme Court of India
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2017, see here.]
35 year old Shayara Bano, a mother of three teenagers, who had been married for 15 years, was unilaterally divorced by her husband Rizwan when she was visiting her parents in April 2015. She has not been allowed to see her children since that time. The only evidence of the divorce was the note that she received from her husband. Shayara’s was hardly the happy marriage, forced to have multiple abortions, beaten routinely, sequestered from her sister who lived close by and always threatened with divorce. She is one among many petitioners in a court case that has captured India’s political, constitutional and social imagination – the constitutional challenge of triple talaq. The practice of ‘triple talaq’ is the unilateral ability of a Muslim man to divorce his wife by thrice uttering the words ‘talaq’ (or divorce), or by sending it as a message even by whatsapp or email or on facebook or through a letter. Social media apparently renders regressive cultural practices, even easier to perform!
Fascinatingly enough, Shayara’s own petition joins a case that a smaller bench of two judges of India’s Supreme Court had initiated suo-motu, and asked that it be heard by a larger constitutional bench of five judges. Therefore, the Supreme Court solicited petitions, and heard arguments over a few days of its summer vacation. Triple Talaq has even become an electoral issue for India’s ruling Hindu Nationalist Bharatiya Janata Party (BJP), making it clear that religion is as political as politics itself.
All constitutional litigation is complex, but in India when faith confronts the constitution, it’s even more so- for judges trained in secular law must reimagine themselves as theocratic experts. Why? The court created this problem for itself. India’s Supreme Court has long adopted the jurisprudential position that a practice that is an ‘essential part of a religion’ is presumed to be constitutional – whether in fact it violates constitutional values such as equality, dignity, fraternity, expression and life, is a secondary inquiry, if at all. This is especially significant in a post-colonial constitutional democracy that retained the system of ‘personal laws’ – where marriage, divorce, inheritance and succession are governed by religious law. Such ‘religious’ law is a codified or uncodified version of a certain interpretation of religious traditions, usually favored by powerful men.
It is undeniable that triple-talaq degrades Muslim women and further disempowers this slice of Indian society that has already has low literacy and socio-economic markers. Yet, it was defended in court as being an ‘essential part of Islam’ – by a prominent non-governmental organization, the mostly all-male, deeply conservative Muslim Personal Law Board (MLPB). Contrary to this position Muslim women — represented through organisations like the Bharatiya Muslim Mahila Andolan (Indian Muslim Women’s Movement) and individual petitioners like Shayara — argued that the practice was unconstitutional.
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