JANUARY 5, 2019
NDA’s Idea of Gender Justice
It will be a mistake to hastily endorse the government’s move to pass the Triple Talaq Bill.
T
he National Democratic Alliance (NDA) government looks
content with its heroic move of passing the Muslim Wom-
en (Protection of Rights on Marriage) Bill, 2018, in the
Lok Sabha. The move might look quite progressive in the eyes of
many. However, it will be a mistake to endorse it only on its face
value. The government’s refusal to send the bill to a parliamen-
tary select committee, for example, goes against the democratic
spirit of deliberation and involvement of all stakeholders in
such a legislation. More annoyingly, the union law minister’s
analogy that the “government had not consulted with the rapists
before passing the ordinance to ensure the death penalty for
rape of children under 12 years of age,” is rather bizarre. More-
over, the provision to criminalise the accused in the Triple Talaq
Bill is deeply problematic. Since marriage is a civil contract,
violation of this contract demands civil action, but the bill
makes it a cognisable non-bailable offence.
The government’s argument that it has brought the bill in
response to the Supreme Court judgment delivered in 2018, is inad-
equate. It was only the minority judgment that had exhorted the
government to bring a legislation to annul the practice of triple ta-
laq as it was deemed to be a matter pertaining to personal law and
religious practices. If the government was driven by the concerns
of justice for Muslim women, it could have considered the private
member’s bill moved by a Congress member of Parliament (MP),
which dealt with the codification of talaq and the evolution of a fair
procedure of dissolution of marriage. Despite the demands from
women’s groups, particularly those who had intervened in the peti-
tion to the Supreme Court for broader consultation, the govern-
ment has chosen to steamroll this legislation with its singular pre-
occupation of criminalisation overriding the concerns for justice.
Furthermore, as the majority judgment has set aside the prac-
tice of triple talaq and pronounced it to be unconstitutional and/
or un-Islamic, what is the purpose of further criminalising the
practice of triple talaq? As pointed out by MPs from the opposi-
tion as well as activists working with Muslim women, the bill,
which prescribes up to three years’ imprisonment, is silent on
the provision of sustenance for the affected woman and her fam-
ily. This further defeats the purpose of ensuring the well-being
of Muslim women. Instead of criminalisation, the pronounce-
ment of triple talaq could have been defined as infliction of do-
mestic violence and brought under the purview of the domestic
violence law of 2005. This could have opened up ways to address
Economic & Political Weekly EPW JANUARY 5, 2019 vol lIV no 1
the problem of married women’s abandonment which is preva-
lent across religions. The bill under discussion criminalises
triple talaq by a Muslim man, but there is no corresponding
penal provision for a non-Muslim man abandoning his wife.
This goes against the universal principle of equality before law
and is, hence, unfair towards non-Muslim women.
However, these considerations would have been taken up by
the government if, indeed, its intention was to ensure gender
justice. This intention was always suspect, as the ideological
orientation and the resultant practices of the ruling party and
its patrons in the Sangh Parivar consistently uphold patriarchal
values. The Hindu Code Bill drafted by B R Ambedkar in 1951
faced vitriolic opposition from Hindutva forces and the Sangh
Parivar. This was in line with M S Golwalkar’s opposition to
personal law reform. When Prime Minister Narendra Modi
argues that the Triple Talaq Bill is a matter of gender justice, but
Sabarimala is a matter of tradition, he is effectively suggesting
that the supposed Hindu traditions are to be upheld even if they
violate the principle of gender justice. The claims by such political
forces of championing the rights of women are on shaky ground
to say the least. Their claims of being the saviours of Muslim
women are even more vacuous considering their track record of
heaping suffering, indignity, and violence upon them. During
the Gujarat communal carnage of 2002, the most barbaric
atrocities were perpetrated against Muslim women. As if this
was not enough, Hindutva forces have shielded or even valor-
ised the perpetrators under the then state government in power.
Such a scrutiny of the track record and intentions of the present
government and ruling party becomes all the more important as it
arrogates upon itself the role of social reformer of the Muslim com-
munity. It does so even as its patronage to acts of mob violence and
systematic targeting of Muslims continue to foster their sense of
insecurity and fear. Social reform initiatives cannot find receptivi-
ty in the prevailing atmosphere of social insecurity that engulfs
minority communities today. However, it should be noted that
cynical attempts of the likes of the All India Muslim Personal Law
Board to use their genuine sense of insecurity to stall any social
reforms need to be opposed. The necessity for reforms initiated
from outside the community should be put on hold. Nevertheless,
who holds the moral capacity to initiate such reforms remains a
valid criterion just as it is resoundingly clear that the present
government/ruling party falls woefully short in this regard.
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