10 unanswered questions after the triple talaq judgement

After the historic triple talaq judgement, it is an important time for all of us to think about its possible ramifications and ask some questions.

1. With the decision to invalidate instant triple talaq, would the Supreme Court maintain a consistent approach toward cleansing the personal laws of other unjust provisions, ranging across all religious communities?

2. Pushing the above question further, will the complexity of the overlapping nature of scriptural and customary usages be dealt with by the Supreme Court or will it be handed over to the legislature for further deliberation? Even in the present case, shouldn’t there be more clarity on till what extent can ‘arbitrariness’ act as a valid point of judicial intervention?

3. Having had made a transformation from ‘non-intervention’ to the ‘careful scrutiny approach’ over the years, does it now open a Pandora’s box for applying the already equivocal doctrine of ‘essential practises’ to the realm of personal laws?

4. In the confrontation between the  scriptural and  the statutory, where do customary usages stand especially in the context of tribal communities whose lives are governed more by certain nature oriented customs than by well codified canonical texts? Moreover, is there even a legal space available for arguing out customary autonomy for various sects and castes within the umbrella of Hinduism, which technically also includes Sikhs and Jains?

5. Given the fact that personal laws has had a dubious history of an eventual ‘brahmanisation’ and ‘Islamisation’ of community laws with hardly any women participation to talk of( Flavia Agnes), how will the balance be sought of maintaining the plurality of practices along with elevating the position of women in safeguarding their  multiple practices from their own vantage points?

6. If the colonial understanding of consulting shastris and qazis for getting rid of the the unholy, uncouth and barbaric elements of local, popular practices holds true even today  in the form of certain self-proclaimed upper caste,upper class protectors of religion, where and how will the space for women’s legal agency open up in matters especially pertaining to ‘family laws’?

7. When and in what context can article 142 dealing with providing ‘complete justice’ be invoked by the Supreme Court, as has been done in the present case of triple talaq? On a broader level, is the slippery slope of judicial overreach a boon, as has been the case for the Muslim women fighting against triple talaq or a bane in terms of granting the SC in particular overwhelming powers in determing what is legal and what is illegal in a respective religion?

8.How is the Shariat Application act of 1937 interpreted when seen in consonance of whether it is a legislation as defined by the use of the word ‘law’ in article 13? As the liberty of interpreting the word ‘talaq’ as ‘triple talaq’ has been taken by Justice Nariman of the Shariat act, are there viable mechanisms for consensus in terms of where this liberty starts and ends?

9. As has been argued by legal scholars, Uniform Civil Code is no guarantee for women emancipation as the condition of Hindu women who are trapped in unauthorised bigamous marriage is a case in point. Even after legally nullifying polygamy and upholding a form of monogamous marriage, Hindu women face the problems of bigamy more than the Muslim women. It has been argued that at the minimum, there at least remains legal provisions of maintenance unlike the Hindu law case wherein there is no binding obligation of similar variety. More than uniformity in codes, consensus for reforms within the community along with more robust access to judiciary for women needs to be strengthened. At this backdrop, will the present political dispensation be willing to talk about the plight of abandoned women for instance in other religious communities? Will they show the political will to acknowledge the loopholes of problems emanating from bigamy within the Hindu community?

10. Further, if at all the debate of UCC does get entertained in a serious fashion, wouldn’t the overweening  Centre’s intervention be antithetical to the principle of co-operative federalism, especially when ‘family laws’have been included under Concurrent list, a list that requires equal participation by the Centre as well as the states? Will the special provisions accorded to the North Eastern state for protection of indigenous traditions and customs  under article 371 be tweaked to realise the purported ‘uniformity’? What does that say of the significance of fifth and sixth schedules which have undoubtedly been provisions which strengthen the collective idea of national integration?

The crux of the matter remains as to how one perceives equivalence between individual and group rights. If,as has been rightly argued, individual rights are important for women empowerment under article 14 to begin with, so are the broad group rights, who do have equal constitutional legitimacy. (Article 25-30). The contentious issue of reconciliation between the two now needs to be pondered upon. A gradual, slow and steady response to matters as sensitive as personal laws seems to be the only viable option in front of us. This, and not the instantaneous knee-jerk reaction for implementing the UCC should be the way forward.

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Raiot

Suraj Kumar Thube Written by:

Recently completed his Masters in Political Science from Jamia Millia Islamia, New Delhi

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