As on yesterday the CJI mentioned that Triple Talaq Is Mentioned Nowhere In Quran. Here are few critical issues being debated.
Personal laws, however inequitable, are considered sacrosanct and cannot be challenged for being in conflict with the Constitution of India without touching a raw nerve. In the absence of steadfast judicial interpretation in various cases where personal laws were disputed, the high-profile triple talaq issue acquires much interest and will give rise to numerous speculations before the specially constituted bench pens its verdict.
The contention whether triple talaq is an inherent part of Islam or not will be central to the ruling. However, amidst all the searing exchange of legal prowess, one hopes the women of the Muslim community, scarred by indignity and hopelessness, have something to celebrate at the end of it all.
The Supreme Court as on today concluded its landmark hearing on triple talaq, reserving its order. A multi-faith, all-male, five-judge bench of the Supreme Court has been hearing blistering arguments in a six-day proceeding that started on 11 May to establish the constitutional validity of triple talaq.
On the final day of the proceedings today, Chief Justice of India (CJI) J S Khehar picked up the Quran and said unequivocally, that the practice is “mentioned nowhere in the book”, and queried how the Muslim community could claim it was fundamental to the religion when they themselves admitted it was ‘sinful’ and ‘worst form of divorce’.
Somebody gave this book to us… it says Talaq-e-biddat is a deviation from the right path. And now this is read and reread during every Friday afternoon prayers. So during every prayer, you say triple talaq is bad, sinful. CJI J S Khehar
Key Contentions
1. The Supreme Court said that the triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims. The court also queried how such a “sinful practice” can be taken as ordained by god and become a law.
2. “If the SC completely strikes down triple talaq, we will bring in a law. We will not leave the people high and dry,” said Attorney General Mukul Rohtagi.
3. Senior lawyer Salman Khurshid said that Islam considered instant triple talaq “sinful but valid in law”.
4. Sibal said challenging the constitutional validity of triple talaq, or instant oral divorce, could lead to a backlash in the Muslim community, which might see its rights as being infringed upon and therefore resort to supporting practices like polygamy and oral divorce.
“It is a 1,400 year old practice… who are we to say it is unislamic?”
5. Senior lawyer Indira Jaising said: “For deciding constitutionality, there is no difference between codified and uncodified law.”
6. The Centre, which wants oral, instant divorce declared unconstitutional, has said “triple talaq isn’t a basic and integral part of Islam.
Why is the SC hearing this matter?
The hearing is rooted in a 16 October 2015 order of the apex court by which it had directed the separate listing of a public interest litigation addressing the question of rights of Muslim women vis-a-vis these three customs. The hearing holds importance as the Allahabad High Court in its verdict pronounced in the last week of April, had held the practice of triple talaq as unilateral and bad in law.
In November last year, the Mumbai-based Bharatiya Muslim Mahila Andolan (BMMA – Indian Muslim Women’s Movement) released a report chronicling nearly 100 cases of triple talaq.
The Supreme Court had on 30 March this year said that the Muslim practices of triple talaq, nikah halala and polygamy are issues that are “very important” and involve “sentiments” and a constitution bench would hear the petitions from 11 May.
The lead petition in the current case is titled “Quest for Equality vs. Jamiat Ulama-i-Hind”. Tagged with the case are six petitions by Khuran Sunnath Society, Shayara Bano, Aafreen Rehman, Gulshan Parveen, Ishrat Jahan and Atiya Sabri.
What are the issues before the SC bench?
Does personal law come under the ambit of Constitution of India? Four questions Supreme Court will address:
1. Whether the impugned practice of triple talaq is protected under Article 25(1) of the Constitution of India?
2. Whether Article 25(1) is subject to part III of the Constitution and in particular Articles 14 and 21 of the Constitution of India?
3. Whether personal law is law under Article 13 of the Constitution?
4. Whether the impugned practices of talaq-e-biddat, Nikaah halala and polygamy are compatible with India’s obligations under International treaties and covenants to which India is a signatory?
5. Whether constitutional morality outweighs religious morality ?
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Steve Ovett, the famous British middle-distance athlete, won the 800-metres gold medal at the Moscow Olympics of 1980. Just a few days later, he was about to win a 5,000-metres race at London’s Crystal Palace. Known for his burst of acceleration on the home stretch, he had supreme confidence in his ability to out-sprint rivals. With the final 100 metres remaining,
[wptelegram-join-channel link=”https://t.me/s/upsctree” text=”Join @upsctree on Telegram”]Ovett waved to the crowd and raised a hand in triumph. But he had celebrated a bit too early. At the finishing line, Ireland’s John Treacy edged past Ovett. For those few moments, Ovett had lost his sense of reality and ignored the possibility of a negative event.
This analogy works well for the India story and our policy failures , including during the ongoing covid pandemic. While we have never been as well prepared or had significant successes in terms of growth stability as Ovett did in his illustrious running career, we tend to celebrate too early. Indeed, we have done so many times before.
It is as if we’re convinced that India is destined for greater heights, come what may, and so we never run through the finish line. Do we and our policymakers suffer from a collective optimism bias, which, as the Nobel Prize winner Daniel Kahneman once wrote, “may well be the most significant of the cognitive biases”? The optimism bias arises from mistaken beliefs which form expectations that are better than the reality. It makes us underestimate chances of a negative outcome and ignore warnings repeatedly.
The Indian economy had a dream run for five years from 2003-04 to 2007-08, with an average annual growth rate of around 9%. Many believed that India was on its way to clocking consistent double-digit growth and comparisons with China were rife. It was conveniently overlooked that this output expansion had come mainly came from a few sectors: automobiles, telecom and business services.
Indians were made to believe that we could sprint without high-quality education, healthcare, infrastructure or banking sectors, which form the backbone of any stable economy. The plan was to build them as we went along, but then in the euphoria of short-term success, it got lost.
India’s exports of goods grew from $20 billion in 1990-91 to over $310 billion in 2019-20. Looking at these absolute figures it would seem as if India has arrived on the world stage. However, India’s share of global trade has moved up only marginally. Even now, the country accounts for less than 2% of the world’s goods exports.
More importantly, hidden behind this performance was the role played by one sector that should have never made it to India’s list of exports—refined petroleum. The share of refined petroleum exports in India’s goods exports increased from 1.4% in 1996-97 to over 18% in 2011-12.
An import-intensive sector with low labour intensity, exports of refined petroleum zoomed because of the then policy regime of a retail price ceiling on petroleum products in the domestic market. While we have done well in the export of services, our share is still less than 4% of world exports.
India seemed to emerge from the 2008 global financial crisis relatively unscathed. But, a temporary demand push had played a role in the revival—the incomes of many households, both rural and urban, had shot up. Fiscal stimulus to the rural economy and implementation of the Sixth Pay Commission scales had led to the salaries of around 20% of organized-sector employees jumping up. We celebrated, but once again, neither did we resolve the crisis brewing elsewhere in India’s banking sector, nor did we improve our capacity for healthcare or quality education.
Employment saw little economy-wide growth in our boom years. Manufacturing jobs, if anything, shrank. But we continued to celebrate. Youth flocked to low-productivity service-sector jobs, such as those in hotels and restaurants, security and other services. The dependence on such jobs on one hand and high-skilled services on the other was bound to make Indian society more unequal.
And then, there is agriculture, an elephant in the room. If and when farm-sector reforms get implemented, celebrations would once again be premature. The vast majority of India’s farmers have small plots of land, and though these farms are at least as productive as larger ones, net absolute incomes from small plots can only be meagre.
A further rise in farm productivity and consequent increase in supply, if not matched by a demand rise, especially with access to export markets, would result in downward pressure on market prices for farm produce and a further decline in the net incomes of small farmers.
We should learn from what John Treacy did right. He didn’t give up, and pushed for the finish line like it was his only chance at winning. Treacy had years of long-distance practice. The same goes for our economy. A long grind is required to build up its base before we can win and celebrate. And Ovett did not blame anyone for his loss. We play the blame game. Everyone else, right from China and the US to ‘greedy corporates’, seems to be responsible for our failures.
We have lowered absolute poverty levels and had technology-based successes like Aadhaar and digital access to public services. But there are no short cuts to good quality and adequate healthcare and education services. We must remain optimistic but stay firmly away from the optimism bias.
In the end, it is not about how we start, but how we finish. The disastrous second wave of covid and our inability to manage it is a ghastly reminder of this fact.