Triple Divorce and the Political Context of Islamic Law in India

The recent passing of ‘The Muslim Women Protection of Rights on Marriage Act 2019’ in India’s two houses of Parliament—the Lok Sabha and the Rajya Sabha—has been actively debated both in India and abroad. Is the Act a much-awaited victory for the Muslim women of India who have suffered the consequences of instantaneous and irrevocable divorces? Or is the Act another sign of the increasing marginalization of the Muslim community and the willingness of the Indian government to encroach upon their rights as a distinct religious community? In order to understand the current controversy over the passing of the Act, one must understand the status of Muslims in India and the longstanding debates surrounding triple-ṭalāq.^[1]

This article will provide an overview of (1) the place of Muslim Personal Law in India; (2) the various Muslim institutions and players that have historically shaped the Law; (3) the debates on Muslim Personal Law by Muslim and non-Muslim activists in the past decade; and (4) the circumstances behind the passing of the Muslim Women (Protection of Rights on Marriage) Act 2019 that has outlawed triple-ṭalāq. Though the Indian Muslim community has not yet felt the social and legal ramifications of the Act, given that it does not provide women with any additional rights that many have been advocating for, and it criminalizes men for pronouncing triple-ṭalāq, the Act has the potential of leaving Muslim women even more vulnerable.

Current Status of Muslims in India

            Based on the 2001 Indian Census, the 140 million Muslims living in India comprise 13.4% of India’s population.^[2] According to more recent data, India’s Muslim population has increased to 14% and is only expected to grow further. Indeed, Pew Research Center estimates that by 2050 India will have the largest population of Muslims in the world, surpassing Indonesia, with a projected 311 million Indian Muslims.^[3] Despite steady growth of the Indian Muslim population, Muslim representation in government has declined. In the 2019 election, only 27 Muslims were elected representatives into the 545 seat lower house of parliament, the Lok Sabha, an increase of only five since the last election in 2014. As such, there is mounting concern that India’s largest minority population is not adequately represented in Parliament.^[4] This concern is further exacerbated by Hindu nationalist polices and rhetoric of the ruling party, the Bharatiya Janata Party (BJP), and the Prime Minister, Narenda Modi.^[5]

Saloni Bhogale, a Research Fellow at Ashoka University in Delhi, examined the extent to which issues directly affecting the welfare of Muslims were addressed in parliament. She analyzed a set of 276,000 parliamentary questions raised in the Lok Sabha from 1999 to 2007.^[6] Her findings reveal that Muslim MPs asked far more questions about the Indian Muslim population as compared to the non-Muslim MPs. However, when Muslim MPs raised concerns, they focused on specific issues such as the Hajj and Muslim education. On the other hand, when non-Muslim MPs raised concerns related to the Muslim population, they focused on questions related to domestic terrorism. What Bhogale’s research reveals is that not only are Muslims under-represented in Parliament, but issues related to their welfare are not adequately addressed. Furthermore, when questions about Muslims do arise, they concentrate on a narrow subset of issues of concern to the national government. Bhagole’s research also reveals something particularly illuminating for the current debate of triple-ṭalāq. She finds that over the eight-year period, only 1.5% of all questions about Indian Muslims surveyed pertain to Muslim women. If historically both Muslim and non-Muslim MPs in the Lok Sabha paid little attention to questions of gender and the welfare of women, then why was the triple-ṭalāq Act the first bill to be passed in the new parliamentary session?

The urgency in passing the Bill would suggest that triple-ṭalāq is a widespread practice afflicting Muslim women, but data provided by the Center for Research and Debates in Development Policy (CRDDP) in Delhi seems to suggest otherwise. Before the 2017 landmark Supreme Court decision—discussed below—the CRDDP reported the results of its survey on triple-ṭalāq. The Center surveyed 20,671 Muslims (16,860 men and 3, 811 women). From the 20,671 respondents, 311 divorces were reported, and only 1 of the 311 noted an oral triple-ṭalāq was used.^[7] If this sample is reflective of the population, why has the government made triple-ṭalāq its signature legislation to enhance the welfare of Muslim women? And why has it dominated the public and legislative discourse about the Muslim community in India? To answer these questions, we must understand the complex history of Islamic family law in India.

The Introduction of Islamic Family Law in India

            The current architecture of Islamic family law in India is often assumed to be a vestige of India’s colonial past wherein the British recognized the personal religious laws of Muslims, Hindus, Christians, and other minority religious groups. Generally, post-colonial states supported legal monism as opposed to legal plurality, overseen by centralized organs of state, the legislature and the judiciary. However, normative unification failed in certain post-colonial states such as India. Some scholars have attributed this failure to the inability to disinherit the colonial legacy, but others have noted that for certain post-colonial states, it was politically exigent to continue to accommodate the legal needs of minorities.^[8] In the case of India, it was likely a combination of both—the colonial legacy established the foundation for legal pluralism, but the bloody partition of 1947, with its heavy evocation of religious sentiment, made religious accommodation of Indian Muslims a political necessity.

            Accommodation of certain Islamic laws were enshrined in the constitution by Articles 13 and 372.^[9] Article 13 states, "All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void."^[10] Though the constitution ensured the legal validity of the religious laws of Muslims prior to independence, Article 13 added an important qualification—laws were only recognized to the extent that they did not violate the Fundamental Rights of the constitution as outlined in Article 15. These rights include: the right to equality, the right to freedom, the right against exploitation, the right to freedom of religion, the right of culture and education, and the right to constitutional remedies.

The constitutional recognition that religious laws could be restricted on the basis of their violation of Fundamental Rights provided an important legal opening for activists to argue against certain religious laws. However, in reality, courts unevenly exercised this authority. In 1952, in the State of Bombay v. Narasu Appa decision,^[11] the Bombay High Court ruled that the personal laws of religious communities are not subject to the Fundamental Rights enshrined in the constitution. This decision was challenged in 1956 in the Bhopal High Court in Abdullah Khan v. Chandi Bi, ^[12] and again in 1991 in the Bombay High Court in Smt. Amina v. Unknown.^[13] In both cases, the courts ruled that personal laws were subject to the Fundamental Rights, however the judiciary was always keen to note that the ultimate redress should be legislative and not judicial.^[14] In addition to qualifying personal laws on the basis of the Fundamental Rights, personal laws could also be qualified by the Constitution’s ‘Directive Principles of State Policy.’ One of these principles, stated in Article 44, is that "The State shall endeavor to secure for the citizens a uniform code throughout the territory of India."^[15] While a Uniform Civil Code (UCC) was supported by many during constitutional discussions and debates, it was vehemently opposed by minority groups, with Muslims being especially vocal.^[16] As a result, instead of enforcing the establishment of a UCC as a justiciable article, drafters of the constitution made it a non-justiciable aspirational clause, demonstrating that despite the adoption of legal pluralism, the aspirational intent during the drafting of the constitution was a uniform code, regardless of religious affiliation. This means Articles 13 and 372,^[17] which recognize the religious laws of communities, were qualified both by the Fundamental Rights of each individual, and by the desire to eventually have a uniform civil code. Those opposing the legal accommodation of religious minorities, or advocating for the reform of religious laws, were therefore given two constitutional grounds for their arguments.

            Muslim religious laws governing marriage, divorce and property are preserved in the Muslim Personal (Shariat) Application Act of 1937, passed during British rule. This act, which is recognized under Articles 13 and 372 of the constitution, continues to form the basis of Muslim personal law today. In an attempt to move towards a more uniform code, the government passed a series of laws that citizens can opt into that circumvent religious laws on personal matters. For example, the Special Marriage Act of 1954 is a civil code for citizens to register their marriages voluntarily at civil registries. While this and other acts give a nod towards the Directive Principle of fashioning a uniform civil code, Muslim personal status laws continue to function. This creates a tension between certain laws that attempt to harmonize and unify the existing laws, and the constitutional legitimacy of pluralism which facilitates the creation of legal precedents compelling the judiciary to recognize multiple legal groups. Important questions arise regarding interpretation—is it the secular government of India that has the final word on the interpretation and adjudication of Islamic laws, or are certain Muslim institutions also legally sanctioned to operate in this space? And if there is a desire to change certain religious laws, what is the process whereby these changes are legally recognized?

Muslim Institutions and Muslim Personal Status Law

            Though the constitution recognized the Muslim Personal (Shariat) Application Act of 1937, no additional provisions were made with regards to the interpretation and adjudication of the laws preserved in the act. It was assumed that the secular judiciary of India would assume the responsibility of interpreting and adjudicating matters of Muslim personal law just as British judges adjudicated Muslim personal status law during the colonial period. Though this was accepted by Muslim groups, Muslims set up institutions that could provide legal and religious guidance for individuals outside the formal organs of the state. The State of India did not expressly sanction any of these institutions or bodies; the government nevertheless encouraged and conferred protection to them under the Fundamental Rights of the Constitution which states "All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice."^[18] Notwithstanding that these educational institutions were subject to the same laws governing all other institutions, the right to establish such institutions was enshrined by the constitution.

            The most lasting institution connected to Muslim personal status law in India has been the All India Muslim Personal Law Board (AIMPLB).^[19] Though it has never received formal state recognition, and its power has been increasingly contested with the rise of new institutions representing the Muslim community, it has played a crucial role in the history of triple-talāq. The AIMPLB was founded in 1972 by Muhammad Tayyab, the then director of the madrasa at Deoband (Darul Uloom Deoband), in response to growing lobbying in parliament for a uniform civil code and an adoption bill that would override certain Islamic laws.^[20] Though the AIMPLB never received formal status or authority as representative of the will of Indian Muslims, their vocal outrage at the attempt to override Muslim personal law with a uniform civil code quickly generated support and endorsement by Indian Muslims, especially more conservative ones. The group was thrust into public debates surrounding the Shah Bano case between 1985-6, where they resisted changing elements of Islamic personal status law, in this case spousal maintenance and divorce laws. In the decision, the Supreme Court ruled in favor of Shah Bano, extending her spousal maintenance beyond the period required by Islamic law.^[21] This upset the AIMPLB and other conservative groups who saw it as judicial encroachment on the personal laws of Muslims. In response, the AIMPLB staged protests, increasing pressure on the government to promulgate legislation that would annul the Supreme Court decision.

Eventually, the government passed the Muslim Women’s Protection of Rights on Divorce Act^[22] which exempted Muslim women from maintenance rights. The Act was instrumental in cementing the position of the AIMPLB; the government had succumbed to the lobbying of a non-state group that was not considered entirely representative of Indian Muslims. In the late 80s and 90s, the AIMPLB, recognizing the social and religious power they held, commentated on various legal issues related to Indian Muslims and facilitated the creation of the Islamic Fiqh Academy, a council of legal scholars devoted to discussing and reaching consensus on various legal issues. Though the AIMPLB made some attempts at inclusivity, their scholars remain primarily affiliated with the Deoband madrasa. Further, they adopt rigid and conservative opinions on most matters of Islamic personal status law. Consequently, resistance to the AIMPLB persists through the creation of parallel Muslims institutions that challenge their authority as the de facto representatives of the Muslim voice.

Challenges to the Authority of the AIMPLB

            The greatest challenge to the status of the AIMPLB came in 2005 when a private attorney, Vishwa Madan, petitioned the Supreme Court to shut down the network of Muslim dispute resolution centers, dār ul qazas,^[23] which were established by the AIMPLB.^[24] Madan argued that these alternative ‘courts’ undermined the legislative sovereignty of the state and thus, the rule of law. Beyond issues of state power and rights, Madan also took umbrage with a series of fatwas that had been issued, arguing that they violated the Fundamental Rights of women and subverted the broad constitutional commitment to justice. Central to his complaint was the fatwa issued in the Imrana rape case of 2005. The case involved a young woman, Imrana, who was raped by her father-in-law. After filing a police report, the madrasa at Deoband released a fatwa stating that Imrana’s marriage to her husband was no longer valid. The AIMPLB, supported the fatwa. In addition to outrage at the fatwa, many were angered because the litigants involved in the case did not actually request a fatwa either from the madrasa or from the AIMPLB. Both institutions chose to intervene despite the absence of a request from the litigants. Madan saw the social and legal power of the AIMPLB and other institutions as encroaching on the sovereignty of the state and interfering in the rights of individuals to pursue legal recourse as they saw fit. To address both of these concerns, he demanded that all dār ul qazas be closed.

            In 2014, the court finally ruled, dismissing Madan’s plea to formally ban all dār ul qazas. Speaking directly to the verdicts of dār ul qazas, the court judgement refers to them as "an informal justice delivery system with an objective of bringing about an amicable settlement of matrimonial disputes between the parties…. It is within the discretion of the persons or the parties who obtain Fatwas to abide by it or not."^[25] The judgement classifies the dār ul qazas as an informal ‘alternative dispute resolution’ mechanism whose judgements are non-enforceable and non-binding—emphasizing that individuals always have recourse to the formal judicial system if they desire. Then speaking of the fatwas directly, the Justices state, "We would like to advise the dār ul-qaza or for that matter anybody not to give any response or issue fatwa concerning an individual, unless asked for by the person involved or the person having direct interest in the matter."^[26] The Court did not challenge the authority of the dār ul qazas or the AIMPLB, but it emphasized that neither had any formal legal status.

            As for the practice of triple-ṭalāq, the perspective of many legislators and members of the judiciary is that it primarily disadvantages women, violating their Fundamental Rights enshrined in Article 15 of the constitution. However, given the constitutional recognition of the personal laws of Muslims, of which triple-ṭalāq is considered a part, the most that the judiciary and legislators can do is exert pressure on Muslim organizations, such as the AIMPLB, to undertake the task of reforming these laws. The most widely-cited case of ṭalāq heard before the Supreme Court of India after the Shah Bano case involved Shahmim Ara.^[27] She and her husband, Abrar Ahmed, were married in 1968. In 1979 she filed a complaint against him in the Family Court in Allahabad under Section 125 of the Criminal Procedure Code on the basis that he failed to provide her with financial marital support.^[28] Mr. Ahmed rebutted her claim in a response in 1990 by arguing that he divorced her in 1987. He further produced a written court affidavit attesting to the divorce. The Allahabad Family Court ruled in 1993, fourteen years after Ms. Ara filed her complaint, and dismissed her demand for maintenance on the grounds that she had been divorced. Ms. Ara contested the divorce and appealed the subsequent higher court rulings, which only gave her partial maintenance, until her case landed before the Supreme Court.^[29]

According to Jeffrey Redding, the Supreme Court eventually had to rule on the very narrow question of "whether or not a Muslim husband’s written submissions to a state court indicating his clear desire to be divorced can—from the date of their filing in the state court—effectuate a talaq."^[30] If the Court ruled in the affirmative, it would mean that Mr. Ahmed’s court affidavit would be considered a formal divorce and Ms. Ara could not claim financial martial support. The court, however, ruled in the negative, effectively leaving the practice of ṭalāq as a non-state matter that should be resolved using the religious institutions available to Muslims. The court did, however, make certain clear suggestions about ṭalāq, stating, "The correct law of ṭalāq as ordained by the Holy Quran is that ṭalāq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters—one from the wife’s family and the other from the husband’s; [only] if the attempts fail, ṭalāq may be effected."^[31] Beyond this, in the obiter dicta, the judges noted that triple-ṭalāq was commonly referred to as ṭalāq-e-biddat (an innovated divorce)—indicating that the practice was an aberration.^[32] If the name of the ṭalāq itself acknowledges that it is an aberration, then it can be assumed to be antithetical to the Sharīʾa and should not be upheld by courts. However, because the discussion on triple-ṭalāq was obiter dicta and the primary matter of the case was of maintenance and court petitions for divorce, the critique of triple-ṭalāq had no legal consequence. The judgement was careful not to pronounce certain forms of ṭalāq legal and others illegal while still laying down parameters for ‘correct ṭalāq.’ On Redding’s reading, this is because any interference by the government or courts would have been seen as contravening the image of a secular and modern state that the Indian government wished to project.^[33]

A few years later, in 2005, the AIMPLB adopted a model marriage contract (nikahnama) that echoed the court’s recommendations in the Shamim Ara decision. The model marriage contract contained a clause that made it mandatory to approach a qazi or dār ul qaza in the case of marital discord before pronouncing divorce.^[34] However, this did not stop men from pronouncing a triple-ṭalāq in contravention to the recommendations of the AIMPLB. In 2007, a high-profile case on triple-ṭalāq surfaced, this time in the High Court of Delhi. In this case, Masroor Ahmed v. State (NCT of Delhi) 2007, Masroor Ahmed claimed to have thrice-divorced his wife in the presence of his brother-in-law and another man. In the ruling, the High Court of Delhi relied upon the obiter dicta in Shahmim Ara noting that the pronouncement of ṭalāq is not sufficient to effectuate a divorce and both reasonable cause and attempts at reconciliation must be demonstrated. The court also went further to rule that the utterance of a triple-ṭalāq is considered one revocable ṭalāq and allows for spousal reconciliation. Though the judgement directly addressed the triple-ṭalāq pronounced by Masroor Ahmed, the judgement was limited to the case and did not go further to challenge the legality or constitutionality of triple-ṭalāq. As cases continued to emerge in the courtrooms, activist groups called for legislative intervention and pointed to other countries that outlawed triple-ṭalāq, especially neighboring South Asian countries such as Pakistan and Bangladesh. Throughout this time, the judiciary remained reticent to encroach on the personal laws of Muslims; the Parliament deemed passing legislation on the matter unnecessary; and the most powerful Muslim legal institution, the AIMPLB, hesitated to speak directly on immediate triple-ṭalāq.

            Given that the model nikahnama was not effective in reducing the cases of triple-ṭalāq, these cases continued to find themselves in the courtroom. Zubair Abbasi has noted that in 2016 alone, at least ten judgements were issued by the High Courts in which they rejected the validity of triple-ṭalāq. ^[35] The mounting pressure on the AIMPLB led them to issue a series of statements regarding triple-ṭalāq. In April 2017, the most emphatic of these statements, stated:

The stand of the Shariat is clear about divorce, that the pronouncement of divorce without any reason, and that three divorces in one go, are not the correct methods of pronouncing divorce. Such a practice is strongly condemned by the Shariat. That is why the All India Muslim Personal Board will start a grand public movement desisting the people from pronouncing divorce without any reason and that in case of necessity only one divorce should be resorted to and in any case three divorces in one go should not be resorted to.^[36]

AIMPLB continued on to claim that those who are discovered to have invoked the triple-ṭalāq will be ‘socially boycotted.’ For some, the statement did not go far enough to actually establish that this method of divorcing was invalid. For others, though they were satisfied with the wording of the statement by the AIMPLB, they recognized that the lack of the Board’s formal legal status meant that their censure of triple-ṭalāq had little legal consequence. And the social consequence of ‘boycotting’ would not act as a sufficient deterrent for men who wished to pronounce the triple-­ṭalāq.

            This complex history formed the backdrop for the decision by the Supreme Court in 2017 in Shayara Bano v. Union of India. At the time of adjudication, numerous courts had already ruled on the invalidity of the triple-ṭalāq and the AIMPLB recognized it as a detrimental practice; yet the legislature remained conspicuously silent, attempting to balance between the fundamental rights enshrined in the constitution and the legal autonomy given to religious groups by that same constitution. The task of the court was to somehow navigate these competing needs and put an end to the longstanding stalemate regarding the issue of triple-ṭalāq. The first question the court had to address was whether triple-talāq was considered codified into statutory law by the 1937 Shariat Act. If it was codified, then it was subject to the fundamental rights enshrined in the constitution. If it was not considered codified as statutory law, then the judges had to rule on whether uncodified law was subject to the same constitutional texts, namely the Fundamental Rights, as codified law.

            On August 22^nd, 2017, the Supreme Court published its judgements. The court was divided—two of the Justices upheld the validity of triple-ṭalāq, and the other three argued for its unconstitutionality. The dissenting judges, Chief Kehar and Justice Nazeer argued that triple-talāq was not codified by the 1937 Act and is classified as uncodified Muslim personal law. As a result, it cannot be measured against the Fundamental Rights and moreover, it is protected by Article 25. Justices Nariman and Lalit argued that triple-talāq is considered codified and can thus be measured against the Fundamental Rights. Moreover, because it is not an essential religious practice, and not Quranically sanctioned, it is not protected under Article 25. The final Justice, Justice Joseph, agreed with Justices Kehar and Nazeer that triple-talāq was not codified by the 1937 Act, but agreed with Justices Nariman and Lalit that it was a non-essential law that can be measured against the Fundamental Rights enshrined in the constitution. As a result, in the final account, he voted with Justices Nariman and Lalit that triple-talāq was justiciable according to the constitution. In the 397-page judgement, the Justices reviewed Islamic scriptural sources, the experiences of other countries in addressing triple-ṭalāq, and previous judicial judgments regarding triple-ṭalāq in India.

In the final account, the majority decision notes that the practice of triple-ṭalāq is in violation of the Fundamental Rights enshrined in the constitution. Speaking more directly to the 1937 Shariat Act, in the decision penned by Justices Nariman and Lalit, they state, "In our opinion, therefore, the 1937 Act, insofar as it seeks to recognize and enforce Triple Talaq, is within the meaning of the expression ‘laws in force’ in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces Triple Talaq."^[37] In the minority opinion, penned by Justices Kehar and Nazeer, they emphasize that any reform to the personal law cannot be through the judiciary but rather through the legislature. Later in their judgment they emphatically state, "Interference in matters of ‘personal law’ is clearly beyond judicial examination. The judiciary must therefore, always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem."^[38] Taking cue from the examples of other countries wherein Muslim personal status law is practiced, they argue that the practice of triple-ṭalāq was addressed ‘by way of legislation’ and therefore the parliament should ‘consider appropriate legislation, particularly with reference to ‘ṭalāq-e-biddat.’" Recognizing, however, that legislative changes are laborious, Justices Kehar and Nazeer suggested a six-month injunction on triple-ṭalāq, stating,

Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘ṭalāq-e-biddat’ as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months. If the legislative process commences before the expiry of the period of six months, and a positive decision emerges towards redefining ‘ṭalāq-e-biddat’ (three pronouncements of ‘ṭalāq,’ at one and the same time)—as one, or alternatively, if it is decided that the practice of ‘ṭalāq-e-biddat’ be done away with altogether, the injunction would continue, till legislation is finally enacted. Failing which, the injunction shall cease to operate.^[39]                       

The deeply divided decisions of the Supreme Court led to the final ‘Order of the Court’ stating, "In view of the different opinions recorded, by a majority of 3:2 the practice of ‘talaq-e-biddat’—triple talaq is set aside."^[40] The final decision of the Supreme Court that the triple-talaq be "set aside" remains vague at best. Effectively, the Supreme Court decision placed the responsibility for legal and permanent change to the laws of triple-ṭalāq on the legislative branch. The challenge confronting the legislature was that historically Muslim institutions, like the AIMPLB and others, actively resisted legislative reforms to Muslim personal status law, and larger attempts to create a uniform civil code—exemplified best by response to the Shah Bano decision. Though the social and religious power of the AIMPLB decreased by the time of the Supreme Court decision, and other advocacy groups supported legislative reforms to Muslim personal law,^[41] the divided Supreme Court decision provided grounds for resistance to any attempts at reform. This left legislators in a precarious position—if they were to pass a bill that made triple-ṭalāq illegal, how would this change be received, and what mechanisms of enforcement would be introduced to ensure that unwilling parties assented to the law?

The 2019 Muslim Women Protection of Rights on Marriage Bill

            Almost immediately after the 2017 Supreme Court decision, the legislature began to address the issue of triple-ṭalāq. From 2017 until 2019, various Executive Ordinances and Bills were promulgated before the final Bill was successfully passed in both the Lok Sabha and the Rajya Sabha, making it an official Act of Parliament. In India, an Executive Ordinance is a law that is promulgated by the President when the Parliament is not in session. It allows for immediate legislative action, but still requires Parliamentary assent within six weeks of the Parliament resuming their sessions. A Bill on the other hand is a draft of a legislative proposal that is proposed in one of the two Parliamentary houses—the Lok Sabha or the Rajya Sabha. Once it passes both houses, the Bill becomes an Act of Parliament.

Below is the timeline of legislative interventions after the Supreme Court decision:

            What is evident in the legislative history of the Act is the continuous intervention of Prime Minister Modi when the bill faced resistance in the Rajya Sabha.^[42] At the time of the Supreme Court decision, the BJP party, the party of the Prime Minister, had a majority in the Lok Sabha, but in the Rajya Sabha, they were vulnerable to the opposition party. Thus, while the Muslim Women Protection of Rights on Marriage Bill easily passed the Lok Sabha, it was met with resistance in the Rajya Sabha. Opposition party members in the Rajya Sabha argued that given the gravity of the Bill, a special committee should be assembled to scrutinize it. On this basis, the Rajya Sabha would not pass the Bill and the parliamentary session would come to an end. Not wishing to remove the Bill from the legislative docket, the Prime Minister would take it upon himself to issue an Ordinance thereby pressuring the Rajya Sabha to eventually concede.

The three ordinances enacted by Prime Minister Modi were essentially stop-gap measures to address the issue of triple-ṭalāq until the Bill was passed by both houses of Parliament. Executive Ordinances are typically used in emergency circumstances where the Prime Minister needs to take immediate action while the Parliament is not in session. However, in the case of triple-ṭalāq, the Ordinances were a way to supervene the opposition’s directive in the Rajya Sabha. After the 2019 election, and the sweeping mandate given to Prime Minister Modi and the BJP in the Lok Sabha, not only did opposition numbers in the Rajya Sabha decrease, but the willingness of the oppositional minority to resist the desires of the ruling party also decreased. Thus, in the first parliamentary session of the Lok Sabha after Prime Minister Modi’s victory, all Executive Ordinances were ratified, including the Muslim Women Protection of Rights on Marriage Bill. The Bill then went on to the Rajya Sabha where it also passed with a narrow margin of 99 for, 88 against. Aside from the problematic politics surrounding the passing of the Act, Muslims advocating for a reform of the laws on triple-ṭalāq also had cause for concern owing to the substance of the Act itself.

            As noted in the court cases above, both the Supreme Court and the High Courts have historically ruled against the efficacy of the triple-ṭalāq. This has usually led to re-establishing a marital relationship between the litigants, or at least awarding the women financial restitution. The Act, on the other hand, goes beyond declaring triple-ṭalāq ineffective to declaring it a criminal act that is punishable by the state with up to three years’ imprisonment and a monetary fine.

By criminalizing triple-ṭalāq and potentially imprisoning men who pronounce it, women may be left in a situation in which their husbands are imprisoned and the women are both unable to remarry and unable to secure financial support for their family—leaving them potentially even more economically and socially vulnerable than before. Here, it is important to note that the Act does attempt to mitigate the possibility for malicious prosecution by three mechanisms: (1) limiting prosecution of the husband to the wife or a blood relative; (2) allowing for bail if the Magistrate deems it is appropriate after listening to the wife and; (3) allowing for the woman to stop legal proceedings. But, despite instating these safeguards, there is still worry that women who pursue a litigious route will be further ostracized and could find themselves in a situation where they are considered religiously divorced, but are considered married according to state law. And while advocates point towards other elements of the Act as empowering and safeguarding Muslim women, such as the clause on the custody of minors and a subsistence allowance, activists are quick to remind them that these rights are already available to Muslim women under previously passed legislation. Moreover, the Act does nothing to afford Muslim women the right to divorce, nor does it introduce procedural mechanisms that place a check on the husband’s unilateral right to divorce. After the passing of the Act, Prime Minister Modi tweeted, "An archaic and medieval practice has finally been confined to the dustbin of history! Parliament abolishes Triple Talaq and corrects a historical wrong done to Muslim women. This is a victory of gender justice and will further equality in society."^[43] However, the Act does nothing to give women the equal right to divorce; in fact, it problematically equates gender justice with the criminalization of Muslim men, which can in effect leave women in a worse situation.

            Long before the criminalization of triple-ṭalāq, the courts had enacted limitations that sought to alleviate some of the harms of both unilateral and irrevocable divorces. Importantly, in Shahmim Ara, the Supreme Court held that for a divorce to be valid, it needed to be reasonable and evidence of attempts at reconciliation must be presented. This decision was upheld by Lower Courts, as evidenced in Masroor Ahmed vs. State (NCT of Delhi). This latter case went even further to establish that triple-ṭalāq would be treated as a single revocable divorce. As Zubair Abbasi has noted, "the legislature should have passed a procedural law to provide an institutional mechanism for the process of reconciliation before divorce"^[44] instead of passing a law criminalizing triple-ṭalāq without affording women any substantive rights. Furthermore, the Act does not address any of the procedural restraints that the courts had placed on divorce, regardless of whether it was an irrevocable triple-ṭalāq or not.

            If the Act does not in fact deliver on gender justice as it was heralded to do, why is Prime Minister Modi so committed to passing the legislation? The answer lies in the manifesto of the BJP party which argues for a Uniform Civil Code (UCC) as one of its key goals. The manifesto points to Article 44 of the Constitution, the Directive Principles, which notes that it is a ‘duty of the state’ to establish a Uniform Civil Code.

In 2016, under the direction of the Prime Minister, the Ministry of Law and Justice enlisted the Law Commission of India to investigate the potential of a UCC in India. The Law Commission took two years to investigate and delivered their report on the 31^st of August 2018—just weeks before the Prime Minister issued his first Ordinance regarding triple-ṭalāq. In the published report, the Commission discouraged the establishment of a UCC.^[45] The report states,

In the absence of any consensus on a uniform civil code the Commission felt that the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India. In order to achieve this, it is desirable that all personal laws relating to matters of family must first be codified to the greatest extent possible, and the inequalities that have crept into codified law, these should be remedied by amendment.^[46]

Addressing the reform of religious personal law, the report states,

The State is ‘an enabler of rights rather than an initiator,’ particularly in sensitive matters such as that of religious personal laws. At this stage one can conclude with conviction the Commission’s initiative towards reform of family law is driven by civil society organisations, educational institutions, and vulnerable sections of the society themselves, rather than by legislative mandate.^[47]

In summarizing the position on a UCC, the report states,

While diversity of Indian culture can and should be celebrated, specific groups, or weaker sections of the society must not be dis-privileged in the process. Resolution of this conflict does not mean abolition of difference. This Commission has therefore dealt with laws that are discriminatory rather than providing a uniform civil code which is neither necessary nor desirable at this stage. Most countries are now moving towards recognition of difference, and the mere existence of difference does not imply discrimination, but is indicative of a robust democracy.^[48]

After these remarks, the report addressed specific issues of family law that have been the subject of sustained debate, and triple-ṭalāq was one such issue. The commission noted that triple-ṭalāq is "already outlawed (emphasis in original)" and "has no effect on marriage."^[49] The report then emphasized the need for women to have the same rights and grounds for divorce as men and highlighted that unilateral divorce is already a penalizable offense under the provisions of the Protection of Women from Domestic Violence Act of 2005.^[50] The report also engaged with the nikahnama promoted by the AIMPLB and emphasized that "the issue of family law reform does not need to be approached as a policy that is against the religious sensibilities of individuals but simply as one promoting harmony between religion and constitutionalism (emphasis in original)."^[51]

            However, against the advice issued by the Law Commission in August 2018, further Ordinances and Bills criminalizing triple-ṭalāq were promulgated. It is thus no surprise that the AIMPLB and women’s activists alike are questioning the motives of the legislators and pointing to the hidden BJP agenda of a uniform civil code that by all accounts, is "neither necessary nor desirable."^[52] If the data gathered by Abusaleh Shariff which reveals just 1 in 300 divorces are achieved through triple-ṭalāq is reflective of the usage of triple-ṭalāq in India, one must wonder if criminalizing triple-ṭalāq is indeed the most pressing issue affecting the welfare of Muslim women.^[53]

For many women’s welfare activists, the current administration has actually failed in its efforts to improve the most pressing concerns for women such as proportional representation in Parliament,^[54] adequate education and healthcare for rural women, and justice for victims of sexual violence. In fact, in the 2018 poll by the Thomson Reuters Foundation, India ranks as the world’s most dangerous country to be a woman.^[55] The survey notes that India is the worst when it comes to human trafficking, sexual violence and gender discrimination, and attacks based on culture and religion. In light of the general plight of women in India and the clear judicial precedent established by the courts against the efficacy of triple-ṭalāq, the fixation on the triple-ṭalāq Act and its hurried passage through Parliament is confounding at best. Especially so because the Act provides women with no additional rights or protections, and it does so while marginalizing Muslim organizations and activists, undermining directives of the law commission, and pushing forward legislation that only further diminishes the rights and standing of an already vulnerable minority population. Heralding the recent Act as a victory for women, or a victory for gender justice, is to obfuscate the truth which is that the legitimate concerns of women have been manipulated to advance the political agendas of a party that is unconcerned with the plight of Muslim women and is all too ready to encroach upon the rights of its growing Muslim minority population.^[56]