The Supreme Court’s judgement in the triple talaq matter, which was brought before it by a group of courageous Muslim victims of the outrageous and inhuman practice, is to be welcomed as a step in the right direction to complete gender justice within all religious communities and in society in general.
The issue of gender justice is often sidetracked by raising the of issue of the ‘common civil code’. While such a code seems an attractive option, there are several problems that constant reference to this as a panacea for all women, both create and avoid. There has been absolutely no attempt to define what this code would actually contain, nor what provisions it would make for marriage, divorce, maintenance, custody of children, inheritance and matrimonial property rights. These are issues on which debates are raging within all communities and there seems to be very little possibility of any community being willing to part with what it considers to be its own inviolate laws, ordained and sanctified by religion, tradition and custom. For instance, would members of the Hindu community agree to give up the Hindu Undivided Family law that gives them huge tax concessions? This is just one of many questions. In any case, the promise of a perfect uniform civil code somewhere in the very distant future cannot come in the way of launching campaigns and struggles for gender justice and social reform.
The women’s organisation to which I belong, the AIDWA (All India Women’s Democratic Association), along with many others in the women’s movement, have long advocated equal rights and equal laws to guarantee gender rights within all communities, as well as the extension of secular laws guaranteeing various rights and protection of women. We have campaigned extensively for the removal of patently unfair laws that affect different communities. We supported the massive struggle launched by Mary Roy for the rights of inheritance of women belonging to the Syrian Christian community, and the campaign by large sections of the Christian clergy and community to change the laws pertaining to divorce, inheritance and the like. We conducted signature campaigns against triple talaq, halala and polygamy, in which lakhs of Muslim men and women participated.
Some of the secular legislation that we, along with many in the women’s movement, have fought for and won, are the law against domestic violence, the law against sexual attacks in the workplace, the amended anti-dowry and anti-rape legislation. These are all laws that have passed after tremendous opposition. While they are in force today, we are witnessing more violation than compliance with their provisions. Entrenched patriarchy is a great stumbling block that repeatedly comes in the way of the implementation of even the best designed legislation. Patriarchy infects not only most of our citizens but also institutions like the government, administration and judiciary, which are invested with the responsibility of implementing these (and other laws). While there is a great rise in the incidence of rape, dowry violence, domestic violence and sexual assault in the workplace, laws dealing with them are being whittled down in some cases or are simply not being implemented in others.
Recently, the Supreme Court talked about ‘false cases’ filed under Section 498A of the Dowry Prevention Act and proceeded to issue instructions that will actually render this section – the only one that gives some relief to lakhs of suffering women – completely toothless. This, even as police records tell us that only 10% of cases registered under this section have been found to be false. The real truth is that most cases of marital and domestic violence still go unreported, their prosecution is tardy and lax and the conviction rate is very low.
As far as the law against domestic violence is concerned, while it does give protection to many women, most governments have not appointed protection officers as mandated by the act and the situation in police stations still remains extremely unfriendly to women seeking justice. The act against sexual assault in the workplace is treated as an unwanted orphan not only by most employers but by the government itself. The strict instructions of the Supreme Court are regularly violated by both and in many cases, like the recent case of a five star hotel in Delhi, it is the complainant who loses her job.
A very important legislation like the law against honour crimes is languishing in government departments. It has been drafted and finalised by women’s organisations in consultation with the ministry of Women and Child Welfare and sent to the government more than five years ago. It is a much-needed law in a situation wherein nearly 30% of all murders are alleged to be ‘crimes of honour’. But governments that are dependent on votes from the dominant communities are extremely reluctant to place and pass this essential piece of legislation.
Those in government, in fact, have a long history, stretching back to the days of the constituent assembly, of opposing gender justice. Some of those who are gloating over the Supreme Court judgment on triple talaq and claiming it as ‘their’ victory were at the forefront of a vicious campaign against the Hindu Code Bill drafted by Babasaheb Ambedkar. In fact, India’s first president threatened to resign if the Bill was passed. It could only be passed piecemeal over decades and the reform of Hindu law to protect and enhance the rights of Hindu women has still not been completed.
The recent Supreme Court judgment itself falls short of much expectation. While the odious practice of triple talaq in one sitting has been declared ‘unconstitutional’, what is the relief given to the women victims of this practice who went to the court in the first place? From what one has understood so far, there is no punitive action prescribed against someone pronouncing triple talaq either. Most unfortunately, the barbaric practice of halala, a concomitant of triple talaq, has not been outlawed. If the judges, in their wisdom, had opined that any couple wishing to reconcile after triple talaq had been pronounced could do so without any conditions like halala being imposed, it might have given some relief to many.
This is not to, in anyway, minimise the importance of the triple talaq judgment. The courts have, over the years, removed some of the disabilities suffered by women of the Hindu, Christian and Muslim communities. This process of reforming and striking down unjust and unequal laws of various communities must be taken forward while secular legislation ensuring gender justice is also expanded and strengthened. They must also do much more to ensure implementation of gender just laws instead of whittling down their stringent provisions as they have, unfortunately, started doing.
What is of utmost importance, however, is the strengthening and prioritising of social reform movements that challenge orthodoxy and patriarchy. This cannot be done if the Supreme Court itself cannot protect a 26-year-old woman who marries someone from another community. This cannot be done when the most regressive, anti-women ideologies are promoted by those in power at the Centre and in most states. This cannot be done if millions of child marriages are allowed to take place on ‘auspicious’ occasions like Akshay Teerth. This cannot be done if marital rape is sanctified. This cannot be ensured by those who are determined to see that Section 377 remains in place. This cannot be done if ‘anti-romeo’ squads run amok and moral policemen occupy constitutional posts. It cannot be done by those who refuse to implement laws that protect women in their homes, in their work places and in the public sphere. It cannot be done as long as a statue of Manu continues to adorn a high court.
Subhashini Ali is a former member of parliament from Kanpur and politburo member of the Communist Party of India (Marxist).