Is Triple Talaq Ordinance Ruling Govt’s Political Opportunism?

Does the ruling govt have a hidden agenda behind this move?

Image used for representational purposes.

(Photo: Rhythum Seth/ The Quint)

(One prominent view is that the Hindutva-majority government is showing only faux concern for Muslim women)

The Modi government – undeterred in its quest to “rescue” Muslim women from the clutches of patriarchy – passed an ordinance on 19 September, to pave the way for criminalising the practice of triple talaq. The Ordinance makes triple talaq a non-bailable offence, that can lead to imprisonment of up to three years, upon conviction.

The bill also envisages granting the custody of minor children to the affected woman and makes it mandatory for the husband to pay maintenance to his wife, and child support.

But one must see how this action has opened up opposing factions among Muslim women’s rights groups. One must see how this ostensibly beneficial move is designed not to come to the aid of beleaguered Muslim women, but to target Muslim men. In sum, it is a wolf in sheep’s clothing.

The Supreme Court’s judgment of August 2017 in the Shayara Bano case, which held the practice of talaq-e-biddat (or triple talaq) unconstitutional, was hailed by many as a step towards the emancipation of Muslim women and a win in the war against institutional remnants of gender inequality.

In criminalising triple talaq, is the present government misusing a judgment delivered to promote gender equality, for ulterior motives? According to many in the Muslim women’s movement, the agenda is clear – to victimise Muslim men in the guise of protecting Muslim women.

Clause 7 of the ordinance mandates that the offence of pronouncing triple talaq is a cognisable and non-bailable offence.

A non-cognisable offence is an offence whereby the police cannot arrest a person without a warrant. Whereas, in cognisable offences, for serious crimes, the police may not have time to get a warrant and can arrest the accused immediately. Private wrongs are usually non-cognisable offences, such as bigamy.

However, by making triple talaq a cognisable offence, the police can arrest Muslim men without any form of judicial oversight to determine whether a warrant should be issued, and the police can take a Muslim man into custody even if the wife does not file a complaint.

Questions in the Wake of Triple Talaq Ordinance

Two critical questions arise at this juncture. First, is the Modi government right in passing the Muslim Women (Protection of Rights on Marriage ) Bill 2017 as an ordinance? All this, just because it could not ram it through the Rajya Sabha in the last parliament session, although, by sheer force of its numbers in the Lok Sabha, it could have it passed in the lower house? Second, what are the motivations behind this action?

Fraud on Parliament: In January 2017, a constitution bench of the Supreme Court had ruled that re-promulgation (or ordinances) is a fraud on the Constitution. While it is true that this is the first time this ordinance on married Muslim women’s rights is being promulgated and approved by the Cabinet, there is no escaping the fact that the government resorted to this step because it could not earn the consensus in parliament.

The ruling government tried its best to carry the Opposition along, and even accused the Congress and its allies of not caring about the plight of Muslim women, but could not have its way.

With 2019 looming ahead, the ruling BJP and its allies are out on a limb to present themselves as ‘friends’ of the Muslims. Is this ordinance yet another move to present a moderate face to Muslims? And perhaps, a way to bypass parliamentary scrutiny? As legal scholar Gautam Bhatia has argued, taking the ordinance route is not exactly a step exuding probity and accountability.

One Community, Many Opinions

Hasina Khan of the Bebaaq Collective, which was one of the petitioners in the triple talaq case, severely criticised this move of the government. She said that by trying to bring in a supposed deterrence for Muslim men, some of whom were still indulging in the practice of triple talaq despite the apex court having outlawed it, this Hindutva- majority government was only trying to scare Muslim men into submission.

“Muslim women want justice, and punitive measures are not justice. And by criminalising this practice and imposing a draconian prison term, this government is only revealing its intention of going after Muslim men,” she told The Quint. “The government’s ordinance does not care two hoots about how Muslim women, whose so called errant husbands would be facing a stiff prison term, would earn their sustenance for themselves or their children,” she continued.

This is purely legislative overkill, Khan asserted, pointing to an op-ed by academic Faizan Mustafa.

On the other hand, Zakia Soman of the Bharatiya Muslim Mahila Andolan, told The Quint that the government’s measure is a step in the right direction, although she and her organisation were disappointed because the amendments they suggested had not been incorporated. A specific legislation, even if it had some criminal provisions (although marriage and divorce and accompanying issues are governed by civil law in India) was the need of the hour to bring recalcitrant Muslim men into submission, she asserted. The BMMA had suggested that the government allow Muslim women to invoke Section 125 of the Code of Criminal Procedure and various provisions of the Protection of Women from Domestic Violence Act, but this was ignored by the government, she rued.

A Need for Nuance

When asked about the opposition to the criminalisation of triple talaq, mostly by women’s groups who were her co-petitioners, she scoffed and said that they were being motivated by divisive political considerations, and asked where they were when innumerable Muslim women were suffering?

When this reporter pointed out that the survey by her organisation, which showed many Muslim women reeling under the burden of triple talaq was flawed, and contradicted the Census data on Muslim divorces, she chose not to answer.

It is thus clear that while some Muslim women do suffer from the practice of triple talaq, it is imprudent and hasty to call it a widespread malaise which can be curbed and eradicated by a criminal law. But the debate has only just begun, and perhaps a sincere reading of anthropologist Lila Abu Lughod’s essay “Do Muslim Women Really Need Saving” would be beneficial to all sides.

(Saurav is a journalist, columnist and researcher based out of Delhi. He tweets at @SauravDatta29. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)