New legislation on triple talaq should focus on Muslim women's rights rather than criminalising practice

Editor's note: In light of the fact that the Centre is planning to introduce a new legislation to outlaw triple talaq, Firstpost sought opinions from various experts about how the legislation should be drafted and what are some of the issues that the government should keep in mind.In August 2017, the Supreme Court changed the landscape of triple talaq, in 3:2 majority judgement, as a valid practice by declaring it discriminatory, regressive and unconstitutional. It put a six-month stay on the practice, directing the Parliament to enact a law within the stipulated time period. The practice of triple talaq involves a Muslim man having the power to unilaterally divorce his wife, by merely pronouncing the word ‘talaq’ thrice.According to media reports this week, the government is planning to introduce a new draft legislation to outlaw the practice of talaq-e-biddat in the Winter Session. The government has formulated a ministerial panel to frame a draft bill and invite suggestions before the Winter Session. The committee is slated to include Home Minister Rajnath Singh, Finance Minister Arun Jaitley, Law Minister Ravi Shankar Prasad, External Affairs Minister Sushma Swaraj and Minority Affairs Minister Mukhtar Abbas Naqvi. It is not yet certain whether any representatives from the civil society or human rights organisations, who have grassroots experience with the issue, will be a part of the Committee. A few reports also suggest that the government plans to legislate this bill in a way that would make this practice a criminal offence.[caption id="attachment_4223937" align="alignleft" width="380"]

Representational image. Reuters[/caption]While the decision to draft a bill and to abide by the Supreme Court’s suggestion is a great move on part of the government, it should also be kept in mind that the government is doing so without any prior experience legislating controversial religious practices. A draft legislation introduced to the Parliament without specific intent or purpose, may go through the same life-cycle as the ‘Trafficking of Persons (Prevention, Protection and Rehabilitation) Bill, (2016)’ introduced by the Ministry of Women and Child Development.The draft legislation, if it does not have the best interests of the aggrieved community in mind, might be trapped in a series of perfunctory debates like the Transgender Persons (Protection of Rights) Bill of 2016, resulting in a legal vacuum for addressing the needs of the community. Therefore, it is very important to draft a bill that becomes a device to allay the plight of Muslim women. Otherwise, it will just be another piece of legal policy with “implementation issues”.For starters, the draft bill should adhere to a human rights framework – keeping Muslim women’s human rights at the centre of the law is imperative. This would mean examining the issue of triple talaq, and providing redressal measures, through the lens of a Muslim woman’s right to life with dignity, equality and her right against discrimination on the ground of sex.The Supreme Court judgment in August put out very succinctly that the freedom of religion is not absolute and practices and traditions that are gender-discriminatory will be not protected under this right. The judgment, however, refused to look at talaq-e-biddat from the point of view of the victims who face a sort of double discrimination on the basis of religion as well as sex. And this is what the law must avoid doing – it must not limit the debate to the fringes of the issue, such as religion or state power; instead, it must frame the issues keeping in mind the dual victimisation that most Muslim women go through because of the arbitrary practice that provides men the authority to absolve from a matrimonial relationship, while not giving women the same privilege.

For the Parliament, it is easy to prepare a legislation that would criminalise the practice, but would criminality solve the underlying problem of violence and insecurity that these women face?

A human rights framework in the legislation would cut through the long-winding interpretations of the Quran and hadith, and the applicable judicial precedents. It would do what the apex court judgment failed to do – it would recognise Muslim women as human, and identify how a practice such as triple talaq violate their legal, economic and social rights. The “fulcrum” of the legislation must be the discrimination of Muslim women and ways to address them, while applying constitutional principles of equality, non-discrimination and the right to life.It should be mentioned that there may be significant challenges in the application of the human rights framework – the age-old ‘universal human rights versus cultural relativism’ debate might come up. Radical cultural relativists may state that human rights are a product of Western political history, and they cannot be universally applicable. It might be argued that human rights are culturally dependent, and that Muslim women’s rights are in fact not violated at all by triple talaq.

The legislation should steer clear from such debates because in a secular democracy, the morality of religion cannot be stated as a reason to deny women equal rights and dignity.

So, what is the way forward? In my opinion, complete criminalisation is not a remedy for women who have no support or child care, and are sometimes not adequately educated for employment. Moreover, deterrents are double-edged swords — a punitive fine or throwing men in jail would end up causing trauma to the women themselves, in essence a human rights violation.Mere criminalisation will not achieve desirable results of social change – for example, child marriage is illegal and yet, the practice continues with impunity all over India. In light of this fact, civil remedies must be available to the women, such as protection orders, the right to the matrimonial home, maintenance – remedies that already exist in the Protection of Women against Domestic Violence Act, 2005 (PWDVA). At this time, it is important to work for changes that are feasible and for this, remedies for securing Muslim women’s rights are more significant than putting their husbands behind bars.