New Age Islam Edit Bureau
23 August 2017
Talaq Verdict: Thin End Of The Wedge
By Bhavdeep Kang
A Divided Verdict: Avoid Politics
Over Triple Talaq
Editorial The Tribune, Chandigarh
Trump Afghan Strategy Is As If Masood
Rules From His Grave
By Amrullah Saleh
Mirwaiz In Kashmir Rethink
By Arati R Jerath
Undoing Injustice: On Instant Triple
Editorial The Hindu
Compiled By New Age Islam Edit Bureau
Talaq Verdict: Thin End of the Wedge
Aug 23, 2017
The spirit of Shah Bano Begum, arguably the
most famous victim of triple Talaq, can finally rest in peace. She has a won a
moral, if posthumous victory, with the Supreme Court verdict declaring verbal
divorce or Talaq-ul-Bidat as unconstitutional. The battle for gender justice,
however, is only half won.
The next phase of the struggle will be
played out, not in courts of law, but in the public domain, when the shape and
form of the Act of Parliament governing Muslim marriage is debated. In this
context, the Congress has the opportunity to erase a shameful 30-year legacy of
appeasing Muslim radicals. The ruling NDA, likewise, has a chance of following
through on the promise it made in its 2014 manifesto, of a Uniform Civil Code
If the triple Talaq case was indeed about
ensuring justice for Muslim women, as NDA leaders have stated, then the
government cannot get away with half-measures. It must expand the scope of the
debate to include all gender discriminatory and retrogressive aspects of
personal laws. The verdict against triple Talaq is the thin end of the wedge.
It can be leveraged towards legal reforms aimed at placing Muslim women on an
equal footing with all citizens, which can be best accomplished through the
enactment of a uniform civil code.
Let’s face it: triple Talaq was
indefensible right from the start. Poor Kapil Sibal, representing the All
Indian Muslim Personal Law Board (AIMPLB) struggled to come up with credible
arguments. He fell back on the dubious contention that it had a religious
mandate. Given that several countries ruled by sharia law do not recognize
triple Talaq, his plea had no traction whatsoever. After all, the
sanctioned-by-religion argument could logically be extended to the practice of
sati, which is banned by law.
So, the critical point is not that triple
Talaq is anti-Islamic – which the Supreme Court has accepted – but that it is undemocratic. Religion cannot
trump human rights. Articles 25 and 26 of the Indian Constitution, which
guarantee freedom of religion, should not overrule either the right to life and
personal liberty, protected under Article 21, or the fundamental rights
recognized in part three of the Constitution.
This segues naturally into the issue of
polygamy, Muslim women’s right to divorce (khula) and control over reproductive
rights. To say that these issues will be addressed through the agency of the AIMPLB
is absurd. It took 70 years and a five-judge Constitution Bench to put an end
to the practice of triple Talaq. The AIMPLB in any case has resisted all
efforts at reform and has zero credibility in this respect.
The other argument, that educated members
of the community will take the lead in reforming personal laws, is equally
doubtful. Education is no guarantor of a progressive outlook. Shah Bano’s
husband was a lawyer, after all. So were the Muslim leaders who in 1986,
prompted the then Prime Minister Rajiv Gandhi to enact a law nullifying the
apex court’s verdict granting right of maintenance to Shah Bano (she filed her
plea in 1978, three years after being evicted by her husband, at the age of
Hindu marriage laws, from 1956 onwards,
have disallowed polygamy and bigamy, child marriage and incest, while the Hindu
Succession Act of 2005 granted women an equal share in inherited properties. No
rational argument can be extended to deny Muslim women the same rights. All
over the world, the practice of polygamy is regarded as being against the
spirit of democracy. The US banned polygamous marriage, practiced by the Mormon
community, back in the 19th century.
Regrettably, many so-called liberals and
even gender activists align with the Muslim patriarchy on the issue of personal
law. They have tolerated the abuse of women on the plea that any attempt to
force reforms in personal law will allow the state to interfere in the affairs
of minority communities and impinge on their religious freedoms. Yet, every opportunity
at internal reform was rejected and ultimately, it had to be forced. The
increasing atmosphere of Wahhabism (conservative Islam) worldwide narrows the
scope for voluntary reform.
A Uniform Civil Code (UCC) will have no
impact on India’s pluralism or on the secular nature of its polity. In fact, it
can be argued that personal laws are discriminatory in themselves, denying
equality before law on the basis of creed and gender. The NDA now has the
numbers to make a serious push for a uniform civil code. All it takes is
political will and Prime Minister Narendra Modi has shown that he has it, in
spades. The man who demonetised four-fifths of India’s currency overnight,
cannot balk at the idea of introducing progressive legislation, however
controversial it may be.
A Divided Verdict: Avoid Politics over
Aug. 23, 2017
The long-drawn battle over triple Talaq should
now end with the Supreme Court, through a 3-2 majority, declaring it as
unconstitutional and banning it for six months, hoping Parliament would pass a
law by then. The apex court has wisely set a time limit and resisted the
temptation to create a law itself, which is not its job. The judgment provides
relief to Muslim women fighting for equality. A verbal divorce, which lately
has gone to the ridiculous level of being delivered on the Skype or through a
WhatsApp message, is plainly arbitrary and retrograde. Several Muslim countries
have outlawed it. Triple Talaq gives men an unfair advantage over women. In an
instant a divorced woman is thrown out in the street. The threat of divorce
leads to her subjugation and denial of equal rights as an individual.
Opposition to the judgment from
conservative Muslims is understandable. However, the Supreme Court itself was
split over certain issues. The majority view on the Constitution Bench,
consisting of all-male judges drawn from different faiths, is that triple Talaq
is not sanctioned by the Koran, hence it cannot be part of the fundamental
right to religion. It is not “integral to religious practice and violates
constitutional morality”. The dissenting
opinion expressed by Chief Justice JS Khehar and Justice S Abdul Nazeer is that
triple Talaq “may be sinful”, but the court can’t interfere in personal laws
which have the status of fundamental right under the Constitution.
Even though lower courts in the past have
given judgments on similar lines against triple Talaq, the issue this time has
been politicised and blown out of proportion. This is partly because of noisy,
polarising debates in TV studios and partly because BJP spokespersons have
shown unusual interest in the subject. Muslims have apprehensions about the
BJP’s gender politics. The party, they fear, might try to divide them for
votes. Lynchings and mob violence over beef and cows have strengthened that
fear. The fact that it is a court verdict and not a BJP government’s order
should set at rest their worries. They can draw comfort from the court’s
interpretation that triple Talaq is not backed by the Koran.
August 23, 2017
There are six encouraging and bold pillars
in the new US strategy on Afghanistan as outlined by President Donald Trump.
First, it is an acknowledgement of the fact
that Pakistan has been playing a destructive and dubious role in Afghanistan by
providing support and sanctuary to terrorists and agents of chaos and that a
diplomatic solution must be found for this problem.
The US has never been this open and frank
on Pakistan’s duplicity. As a global power, the US shouldn’t escape from its
words and policies and must follow up until Islamabad and its powerful army and
intelligence stop nourishing the Taliban and other terrorist groups.
Second, recognizing India as a strategic
partner for security and economic development in Afghanistan is also a bold and
fresh statement. The US has never in the last 40 years openly portrayed India
as a partner. The partnership with India will reduce the cost and burden for
the NATO-led alliance and increase the cost of interference and disruption for
spoilers and masters of the proxy groups. This also tears apart the suffocating
and false notion that the US has no ally in the region should it go tough with
Third, reiterating the centrality of the
Afghan National Defense and Security Forces (ANDSF) in defense of Afghan
values, and safeguarding the space for democratic & constitutional play by
keeping the Taliban and other terrorists at bay with military and financial
assistance of the US.
The clarity in this message brushes away
and kills the notion as often propagated and promoted by apologists and
cynics, that the cost of peace will be a
compromise of Afghan achievements and institutions. The ANDSF will remain a
constant and the Afghan political and democratic process will not be derailed
by deals and decisions outside the country and by the strength of the Taliban
insurgency. A grand bargain won’t mean a grand collapse and shouldn’t.
Fourth, by stating a clear division of
labor between the Afghan state and its international allies, the US has made it
clear for good and noble reasons that it is not here to change the fabric of
Afghan society and its culture or impose alien values. There is a convergence
of interest in the area of security and stability and there are areas of
divergence on how Afghans want to deal with the complexity of their society.
This creates a lot of ease on how Afghans
pursue their political ambitions as long as they stick to the constitutional
order. It also elevates the US to a partner of all, not just the ruling
faction. It asks the National Unity Government of Afghanistan to be honest,
serious and sincere in its fight against corruption and the building of key
institutions by looking beyond factional interest and sub-national politics.
Fifth, the new strategy, in contrast to the
previous one, respects the principle of strategic hierarchy of conduct and
operational silence. It gives a broad, yet secret, set of authorities to Gen.
Nicholson, the commander of US troops in Afghanistan as well as his future
successors the authority to make tactical judgments without constantly
referring to Washington.
The restrictive caveats are apparently
removed. This will enable the Resolute Support Mission (RSM) to have a
justifiably freer hand in conducting its day to day activities. Simplifying the
command structure and respecting the authority of the highest ranking general
on the ground is a welcome move. It shows that the Trump administration has
adhered to age-old precious military principles and texts to ensure victory and
Sixth, the commitment to stay long enough
to achieve the desired outcome and prevail, and reverse the Taliban strategy by
taking the time from them and giving them watches instead. A negotiated
settlement has not been ruled out, however, talks under duress and at gunpoint
has been ruled out.
If Washington stays focused to this part,
it will send a signal to regional spoilers that there won’t be any need for a
rainy day and that it would be better if they bet on a stable and successful
Afghanistan instead of on non-state actors and spoilers. That there will never
be an Afghanistan of the shape they desire.
As an Afghan I welcome the new strategy and
commit myself to contribute to its success. After all it is in conformity with
the vision of my late and slain leader Ahmad Shah Masood, who always advocated
the strengthening of Afghanistan alongside political, economic and diplomatic
pressure on Pakistan to find a good lasting solution for terrorism in our
region and beyond. After billions of dollars spent, nearly two decades of
thinking and studying, the world’s only superpower endorses his vision. I feel
as if Masood rules from his grave.
Hurriyat leader Mirwaiz Umar Farooq’s
instantaneous positive response to Narendra Modi’s Independence Day speech has
set off speculation that a meeting between government representatives and the moderate
Kashmiri leader may be in the offing.
Although Farooq is under arrest and his
main aides are also in jail and are being questioned, his reaction indicates
that a back channel is open with the hope of bringing him to the table for
talks. A senior government source hinted that there is no option but to talk to
the moderate faction of the Hurriyat represented by Farooq to lower
temperatures in the Valley.
This is a 180 degree turn from the
government’s earlier position of shunning all Hurriyat leaders, including the
moderate ones. It suggests a rethink on the hardline policy adopted so far in
view of repeated Chinese threats and attempted incursions into Ladakh. Farooq
had tweeted immediately after Modi’s speech.
He welcomed the PM’s remarks, saying that
if Insaniyat and Insaaf replace Goli and Gaali, then resolution can become a
reality. The tweet was the main topic of conversation at the President’s At
Home reception on Independence Day with officials, media and political leaders
all expressing surprise and satisfaction that Farooq had responded so
positively to the PM’s appeal to embrace Kashmiris.
However, skeptics feel that the resumption
of a dialogue with the Hurriyat can only happen if the Modi government does
more spadework to soothe frayed nerves in the Valley. A key stumbling block is
the current controversy over petitions filed by BJP and RSS workers in the
Supreme Court demanding the repeal of Article 35 (A).
This article gives teeth to Article 370
which gives special status to Jammu and Kashmir. The sceptics recall that when
Atal Behari Vajpayee opened talks with the Hurriyat in 2013 with Insaniyat as
the guiding principle, a lot of behind-the scenes groundwork preceded the move.
It included secret meetings between top Indian and Pakistani intelligence
Cause For Concern
Narendra Modi’s appeal to embrace the
Kashmiri people and eschew Gaali and Goli was the big buzz at the
new President’s first Independence Day At Home reception.
While guests were of course eager to catch
a glimpse of the newly elected President, Ram Nath Kovind, it was Modi who was
the cynosure of all eyes, at least the eyes of the media. As the PM walked down
the red carpet greeting guests and chatting with them, he was hailed by several
journalists wanting to congratulate him for his message of peace to the people
of Kashmir. The shower of praise from the media tickled Modi who has often
blamed journalists for being antagonistic to him.
If the media is praising my speech so much,
it is a cause for concern, he joked after he was stopped yet again by a group
of eager journalists waiting to congratulate him.
The hierarchy at the President’s
Independence Day At Home reception was clearly marked. The inner room was
reserved for the VVIPs, including union ministers, diplomats and senior
politicians. The outer room was for the rest of the crowd which included top
bureaucrats of the government, journalists, friends and leaders of the BJP and
RSS and other invitees.
It was into this outer room that Sushma Swaraj
mistakenly strayed only to find foreign secretary Jaishankar surrounded by
media persons pressing him for insights into government thinking on the
India-China standoff at Dokalam, the PM’s remarks on Kashmir, Pakistan, etc.
Jaishankar is suave and experienced enough to sidestep questions from the media
and he was doing a wonderful job of chatting to everyone without saying
As Swaraj passed him on her way to the VVIP
room, she jokingly told the foreign secretary that he should beware of the
media and stay away from it.
Message for China?
Was there a message for China in the Modi
government’s decision to make Ladakh the first destination for President
Kovind? The President visited Ladakh on his maiden outstation tour beginning April
21. The choice of destination was significant in the light of recent Chinese
threats on Ladakh.
On Independence Day, there was a stand-off
as well between Indian and Chinese soldiers. The Chinese tried to enter Indian
territory but were pushed back by Indian troops. The Chinese retaliated by
throwing stones at Indian soldiers. Although the President refrained from
making a chest-thumping speech when he met Indian troops stationed In Ladakh,
the government seems to be sending a strong message to China through his visit
not to mess with India by extending territorial claims in the western sector.
Interestingly, Rashtrapati Bhavan did not
invite any media representatives, official or private, on this important visit.
This is in stark contrast to Pranab Mukherjee who always took a media
contingent with him on his travels, both domestic and foreign.
In The Limelight
It is clear that despite speculation about
their rocky relationship during ten years of UPA rule, Manmohan Singh remains
Sonia Gandhi’s most trusted Congress leader.
Sonia was unable to attend the opposition
convention organized by dissident JD(U) leader Sharad Yadav in the Capital.
Significantly, she sent Manmohan Singh as her representative, not other senior
leaders who aspire to become Rahul Gandhi’s chief advisor and mentor when he
finally takes over as Congress president.
It is equally interesting that Ahmed Patel
was also present and that he delivered a speech at the convention.
Patel has always preferred to be a backroom
boy and usually shies away from public presence. His deft victory in the recent
Rajya Sabha election in Gujarat, in which he outmaneuvered BJP master
strategist Amit Shah, seems to have encouraged him to step out of the backroom
and take a frontline position.
By declaring the discriminatory practice of
instant triple Talaq as unconstitutional, the Supreme Court has sent out a
clear message that personal law can no longer be privileged over fundamental
rights. Three of the five judges on the Constitution Bench have not accepted
the argument that instant Talaq, or Talaq-e-Biddat, is essential to Islam and,
therefore, deserves constitutional protection under Article 25. The biggest
virtue of the two opinions constituting the majority judgment is that they do
not have to undermine any religious tenet to make their point. On the contrary,
as Justice Kurian Joseph says, the forbidden nature of triple Talaq can be
gleaned from the Koran itself. Justice Rohinton Nariman, writing the main
judgment, locates the practice in the fourth degree of obedience required by
Islamic tenets, namely, Makruh, or that which is reprobated as unworthy.
The main ground on which the practice has
been struck down is a simple formulation: that “this form of Talaq is
manifestly arbitrary in the sense that the marital tie can be broken
capriciously and whimsically by a Muslim man without any attempt at
reconciliation so as to save it.” In fact, the final summation is so simple
that the court did not even have to elaborate on how triple Talaq violates
gender equality. On the contrary, Justice Nariman says that having held the
practice to be arbitrary, there is really no need to go into the element of
discrimination. The court deserves commendation for undoing the gender
injustice implicit in the practice so effortlessly, within constitutional
parameters as well as the Islamic canon.
The present case was initiated suo motu by
the court, but opinion against triple Talaq could not have gathered critical
mass and the case against it significantly bolstered if it weren’t for a few
women standing up to the community’s conservative elements and challenging it.
Any other outcome would have been a great injustice to them.
the judges in the minority have had to concede that their reasoning is based
mainly on the fact that this form of Talaq is a matter of personal law, and
therefore entitled to constitutional protection. “It is not open to a court to
accept an egalitarian approach over a practice which constitutes an integral
part of religion,” writes Chief Justice J.S. Khehar in his minority opinion.
Interestingly, even his view segues into a somewhat egalitarian position,
restraining Muslim men from pronouncing triple Talaq until Parliament enacts a
law to regulate it.
The All India Muslim Personal Law Board,
and all those who supported its regressive opinion that even an unworthy
practice should not be dislodged by judicial verdict, should now accept the
verdict in the interests of a modern social order. And there is no reason to
contend that their faith has been unduly secularised. For, as Justice Joseph
concludes, “what is bad in theology is bad in law as well.”