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[This is a guest post by Kieran Correia.]
Towards the end of January, the Supreme Court began hearing challenges to the constitutionality of the Muslim Women (Protection of Rights on Marriage) Act 2019. The Act was signed into law after the Court’s 2017 Shayara Bano verdict, which declared the practice of triple talaq unconstitutional.
Triple talaq – or talaq-e-biddat more properly –refers to the practice of a man uttering “talaq” thrice to unilaterally and irrevocably divorce his wife. The theological origins of this practice are dubious. However, there was enough evidence to suggest that it was an acceptable form of divorce in some quarters – with important legal consequences for a Muslim woman’s maintenance and custody rights.
After a brief stint as an ordinance, the criminalization of the practice was enacted into statute via the 2019 law. This was challenged within a month of the law’s existence. However, those petitions lay in cold storage till the Court began hearing them this year. To be clear, Petitioners are not litigating the constitutionality of the practice itself. Their challenge is limited to the Act – and its criminalization of deserting one’s wife after uttering the word “talaq” thrice. This post identifies and works through some of the legal issues in this case.
The 2019 Act’s Background: Shayara Bano and the 2018 Ordinances
The 2017 judgment was rather convoluted. Justice Nariman authored the plurality opinion, joined by Justice Lalit (as he then was). Justice Kurian issued a concurring opinion. And Chief Justice Khehar and Justice Nazeer were together in dissent.
Gautam provided an excellent rundown of the three opinions at the time. We need only remember that despite the ambiguity surrounding how the Court saw the legal nature of triple talaq, both Nariman and Kurian JJ agreed that the practice was unconstitutional. The operative order of the Court – which the entire bench signed onto – was simply that “by a majority of 3:2 the practice of ‘talaq-e-biddat’ – triple talaq is set aside.”
The government soon after attempted to pass legislation criminalizing the practice of uttering the word “talaq” thrice. The bill, despite being passed by the Lok Sabha, was stalled due to a lack of support in the Rajya Sabha. Therefore, the government issued an ordinance giving effect to the then-current version of the bill, subsequently repromulgated till the government gained support in the upper house. The ordinance’s language was carried over unmodified to the 2019 Act.
The Impossibility of “Talaq”
The justification for the 2019 Act lay in cases of triple talaq persisting despite the Supreme Court’s outlawing it. Following the two ordinances, the Act criminalizes the pronouncement of “talaq” in any form by a Muslim man upon his wife. “Talaq” is defined by the Act to include any form of talaq “having the effect of instantaneous and irrevocable divorce” (emphasis added). (I will proceed to use the words “talaq,” “triple talaq,” and “instant talaq” interchangeably.)
If you think this seems wrong, you are on to something. After all, did the Court, in 2017, not void the ability of saying “talaq, talaq, talaq” to instantiate divorce? Here, it might be helpful to familiarize oneself with the concept of “performatives.” As the philosopher JL Austin argued, “to utter the [performative] sentence (in, of course, the appropriate circumstances) is not to describe my doing of what I should be said in so uttering to be doing or to state that I am doing it: it is to do it.” Before the Court struck down the practice of triple talaq in 2017, to say “talaq, talaq, talaq” to your wife was to do it. Of course, it had to be in the “appropriate circumstances” – both of you had to be Muslim, and you had to belong to a sect which accepted it as a form of divorce. The point is, however, that it was sufficient.
The law is suffused by performatives. Think about when a judge, in open court, sentences a man to death. In that very moment, a man’s life becomes bound by certitude: he is now on death row – he knows that he is going to die at the hands of the state (bracketing away the possibilities of review, pardon, and commutation). The judge, by saying it out loud, brings this into existence.
The pronouncement of triple talaq continues to be – on Parliament’s account – such a performative. The 2017 judgment, however, knocked the wind out of this claim. By finding triple talaq unconstitutional, the Supreme Court ensured that no legally recognized court of law could respect a triple talaq divorce (forgive the redundancy). Consequently, the husband’s (or wife’s) obligations would remain intact. Moreover, the classic consequences upon divorce would not follow – a wife would not be able to seek maintenance nor could either party engage in a custody battle.
In other words, the 2019 Act fundamentally errs in its understanding of what talaq is – it prohibits something that is impossible (rendered so by a Supreme Court judgment). I do not point this out merely for pedantry’s sake: Chapter III of the Act confers certain rights on Muslim wives at the receiving end of talaq. These rights – maintenance and custody – look awfully close to those to which a divorced woman might ordinarily be entitled. The Act, then, entrenches the very thing it purportedly seeks to disavow. This alone should be grounds to strike it down – whether for absurdity or vagueness. It is, however, possible to read the statute more charitably – as the Court would doubtless do. On a different reading, the Act does not intend to prohibit instant talaq, as it is legally understood, but rather desertion. This, too, does not fare very well constitutionally.
The Act’s Equality Problem
Triple talaq is not an act sui generis. It might be either desertion or divorce. The latter is clearly ruled out in the Indian context, as we have seen above. The Act singles out talaq “divorces” – desertion more properly – for criminal punishment. No criminal provision in India penalizes the desertion or abandonment of one’s spouse; it only constitutes grounds for civil remedies. Whether one deserts one’s wife by saying “talaq” thrice or not, the consequences and remedies remain the same: a wife could, among other things, request for restitution of conjugal rights or seek divorce (along with maintenance and custody rights)
The entire Act, therefore, violates article 14’s mandate of formal equality. A Muslim man deserting his wife may be incarcerated for three years under section 4; a Hindu or Christian man doing so would not. Neither of these cases, to be sure, automatically results in divorce (or anything legally significant). Formally speaking, then, they are the very same act. The act of desertion is certainly “uncivilized,” as the Solicitor General put it. The 2019 Act, however, brings civilization to bear differently based on the religious identity of the individual doing it.
Formulated in article 14 language, the Act’s classification here – ie the distinction between Muslim and non-Muslim men deserting their wives – is not founded on any intelligible differentia. It “creates an artificial dichotomy,” as Justice Malhotra observed of section 377. Therefore, the Court ought to strike down the entire Act for breaching the right to equality.
A Fit Case for Deploying Intersectional Discrimination Law
The article 15 inquiry is more fascinating. We confront a case where an individual is punished because of his Muslim and male identifications. It might seem odd – in our times of substantive equality – to argue discrimination against men. It is even more puzzling to do so using the vocabulary of intersectional discrimination; the experiences of white women and Black men were the typical cases of discrimination law that intersectional theorists were attempting to decentre. However, “patterns of group disadvantage and harm” – the conceptual infrastructure of discrimination law, per O’Regan J of the South African Constitutional Court – can also coagulate and be suffered by those at the intersection of advantaged and disadvantaged group identifications.
This is somewhat verbose and abstract, so let us unpack this through a real-world example. Consider the case of Johnny Kimble, a Black man in the United States who brought a discrimination claim against his employer. This discrimination, he said, occurred on the basis of his race and gender. A US court accepted Kimble’s claim. It held:
[S]cholars have long recognized that black males are subject to distinct stereotypes. For example, some white Americans believe that black males are less intelligent than other groups, including black females. As a result, black males are sometimes monitored more closely than members of other groups. (citations omitted) (pp. 770–71)
Without remaining hostage to a fixation on the anti-stereotyping principle – as US discrimination law does – this understanding of the uniqueness of Black male disadvantage is useful for our purposes. The case of Muslim men is similar. Muslim men, in India, face disadvantage that neither Muslim women nor non-Muslim men confront (at least at the same levels): they are lynched for consuming beef, incarcerated for dating Hindu or Christian women, suspected of terrorism, and subjected to police brutality.
More relevant to our case, Islam is often branded as misogynistic par excellence – an accusation that grounds itself in the erasure of the patriarchal violence found across society. Muslim men, therefore, face the charge of being particularly cruel to their wives. This also has consequences for Muslim women, the flip side of this stereotype being that Muslim women need saving – an idea that deprives Muslim women of any agency.
We cannot meaningfully comprehend the discrimination that the 2019 Act causes in the terms of single-axis discrimination; we need the conceptual tools of intersectional discrimination. One hopes that the Court takes this opportunity to flesh out intersectional discrimination theory in India and cement it firmly in law.
The Possibility of Community-specific Reform
There is one juridical barrier to the equality challenge that we must examine. In Narasu Appa Mali, the Bombay High Court looked at Bombay’s Hindu Bigamous Marriages Act 1946, which criminalized bigamous marriages among “Hindus” (defined broadly to also include Sikhs, Buddhists, Jains, and so on).
Petitioners had challenged the differential treatment of Hindus and Muslims. Section 494 of the Penal Code, which criminalized bigamy, did not apply to Muslims either. The argument was that polygamy was prevalent among Muslims at the time; still, “the Hindu community in Bombay has been picked out for this legislation prohibiting polygamy” (paragraph 11, Chagla CJ’s opinion). This was grounds, in their view, for an equality challenge.
The High Court did not see it that way. Now, there was no doubt that this was prima facie a case of discrimination; the question was whether there was a “reasonable basis” for excluding Muslims from the purview of the law (paragraph 11). Chagla CJ – who authored one of the verdict’s two opinions – drew on the theological differences between Hinduism and Islam on the issue of marriage, educational disparities, and receptivity to social reform. He does not spell out how exactly the latter two factors played – or ought to play – a rôle in social reform legislation. Nevertheless, these three are – to Chagla CJ’s mind – the “reasonable basis” for excluding Muslims from the prohibition on bigamy.
The Chief Justice went on to hold that article 14 does not require laws to have an “all-embracing character”: “[t]he State may rightly decide to bring about social reform by stages and the stages may be territorial or they may be community wise.” Nevertheless, any uneven treatment should not be “arbitrary or capricious, but […] based upon reasonable grounds” (paragraph 12).
Returning to the 2019 Act, we have already seen how the target of the law is not instant talaq – rendered void by the Court – but desertion. In other words, the 2019 Act does not deal with an issue that is otherwise regulated by personal law – and therefore constrained by the factors Chagla CJ relies upon. This was not the case with the Hindu Bigamous Marriages Act: that was an attempt “to introduce social reform in respect of a particular community having its own personal law.” In prohibiting spousal desertion, the 2019 Act is somewhat akin to domestic violence legislation – something that regulates the “private” sphere, even as it does not remodel personal law.
Narasu was careful in its laying down of the classification doctrine – under-classification was permitted so long as it was based upon reasonable grounds. There are no reasonable grounds that the government has relied on with evidence to single out Muslim men for punishment for desertion.
The (Possible) Article 15(3) Defence
An interesting question is whether the Act is saved by article 15(3): “Nothing in this article shall prevent the State from making any special provision for women and children.” On the face of it, the Act exists – in its preamble’s words – “to protect the rights of married Muslim women.” This is an important consideration because the Court has previously held, in Om Narain Agarwal, that article 15(3) creates an exception to the articles 14 and 15(1).
The possibility of this provision being invoked is not nil. A cursory glance at the parliamentary debates on the introduction of the Muslim Women (Protection of Rights on Marriage) Bill reveals the Treasury bench’s reliance on article 15(3). Moreover, the Opposition also engaged with the government on these terms – only confirming its plausibility as an argument.
There are several issues that follow: is a criminal law within the scope of “special provision”? Is article 15(3) an exception or clarification to articles 15(1) and (2)? If it is an exception to articles 15(1) and 14 extend to cases where discrimination does not exist only on the basis of sex? Can laws that traffic in stereotypes – as the 2019 Act does – still benefit from the protection of article 15(3)?
Let us first address the subject-matter scope of the provision. Article 15(3) has been understood – in more than one decision – as an affirmative action–enabling clause. In the Court’s decision in Government of Andhra Pradesh v PB Vijayakumar, it held that “ ‘special provision’ […] can be in the form of either affirmative action or reservation” (paragraph 8). However, in other cases, the clause has been invoked in a wider set of cases. Indeed, “affirmative action,” as the Vijayakumar Court used it, was taken to include a host of laws that positively discriminate in favour of women in Independent Thought.
Seemingly, then, penal measures can be “special provision” for women. But what about the relationship between article 15(3) and the rest of the Equality Code? Does clause (3) override article 15(1) or article 14 altogether? Courts have understandably been reluctant to allow complete derogation from the non-discrimination guarantee, holding that it must be “reasonable.” However, this is not based in principled reasoning, leaving the relationship between rule and exception/clarification nebulous. The Court should take up this opportunity to coherently read together articles 14, 15(1), and 15(3), grounded in its substantive equality jurisprudence, and clarify the nature of the clause.
Further, there is no direct engagement on the question of the relationship between “special provision” and discrimination on grounds other than sex. In Agarwal, for instance, the Court held that “in case any special provision is made for women, the same would not be violative on the ground of sex which is prohibited under clauses (1) and (2) of Article 15 of the Constitution” (paragraph 13).Does clause (3) then only allow the State to positively discriminate in favour of women at the cost of men, to put it reductively? Or does it also allow such discrimination at the cost of X (being a non-sex/gender oppressed group)? Case law so far leans towards the former, but it has not been decisively answered. One can only hope that the Court does not allow the non-discrimination guarantee to fall by the wayside.
Even if the Court accepts that article 15(3) is an exception to the religious discrimination argument we have flagged, there is another obstacle before the government. A principle that the Court has read into the Equality Code is the “anti-stereotyping principle,” as Gautam has previously argued. In Anuj Garg, a provision prohibiting the employment of women in liquor stores was struck down. The law, the Court held, “suffer[ed] from incurable fixations of stereotype morality and conception of sexual role” (paragraph 46). Now, we have already seen how the 2019 Act rearticulates stereotypes about Muslim men and women. The Court must, therefore, attend to how stereotyping – for ends which are “benign” or otherwise – perpetuates patterns of group disadvantage. This case also presents a chance to flesh out the interplay of the anti-stereotyping principle, religious discrimination, and article 15(3). One thing, however, should be non-negotiable: a law which traffics in harmful stereotypes cannot be shielded by article 15(3).
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