By Dr Vivek Kumar Srivastava
August 23, 2017
The decision of Supreme Court by declaring the Triple Talaq as unconstitutional and with its immediate stoppage of the practice is landmark in every aspect as it has established the dignity of the women at par with others. It is landmark decision in the sense that it has proclaimed that in India nothing is paramount except the Constitution. The decision is also noteworthy as it paves a way for further reforms in the country. It is direct blow to the patriarchy which has been practiced in the country unhindered as women were never in position to challenge the male domination. Supreme Court is always right. It was right when it had given the historic Shah bano decision which was upturned by Rajiv Gandhi and which led to downfall of Congress which is still continuing.
The decision of today has certain good points as well which have been elaborated by learned judges who found the practice unconstitutional. The new principles evolved after this decision may be interpreted as-even if a practice is practiced since long time but is wrong then it should be discarded. The decision explicitly brought into open the relationship between a social practice and its relation with time and its non acceptability on the ground of its illegal unconstitutional status. As the decision points out that merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.
Another principle which saw the light of the day is that reconciliation is must in marriage system otherwise it violates the fundamental rights of the Indian Constitution- as from the decision it emerges that it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken at will without making efforts for saving the marriage. Anyone can do it on any ground. Therefore such action will violate the Article 14 of the Chapter three of the Indian Constitution. The process of saving the marriage is therefore required. It cannot be annulled on whim.
The interpretation of Supreme Court decision establishes that discrimination on the ground of the gender cannot be practiced and any religious practice if wrong or retrogressive cannot be protected under article 25 of the constitution which provides freedom to profess and practice and propagate the religion. The belief that any activity how much against to the equality of the people can be protected under this article has now failed as the constitutional morality believes in equality. The supremacy of the constitutional morality has been validated by the decision. Anything which goes against the soul of the constitution cannot be treated as acceptable.
The impact of the decision is multifold. Not only it has established the constitutional values but also has established the true status of the women. It is not case of a particular class or religion but it is a case of all the women of the country who in different platforms face several problems. The problems which emerge from the patriarchal mindset of their counterparts or family members who attempt to dictate their lives in every sphere of existence. This decision emboldens the women to seek redressal if none is in theirs support then it is the Supreme Court which can come forward for their help with legal measures. When the legislative interventions are failed or not implemented or restricted due to appeasement of the male vote ` banks then the solution holder is Supreme Court. This decision therefore establishes Supreme Court as the institution of the social reformation.
The fight against Triple Talaq was fought by women and media was in their support and final support sprang from the Supreme Court thus they are never alone. All sane people and institutions are in walk with them. This reality is great achievement for the country. Now time arrives for political parties to feel the winds of changes.
It is observed that in India the political regimes usually remain reluctant to carry on the social reforms; mainly in those areas where they have stake of their vote banks. This is highly regressive approach to run a country but Indian political system tried to put the exploited ones at the carpet. In fact these should have been strengthened. Why is it so that Courts have to come forward to resolve this discrimination of social inequality? The political leadership should take notice of such practices and without any consideration of power or election; should pass the reformative legislations. Otherwise the history will not judge them in positive manner.
Now the new phase of the feminist struggle starts in the country. Women of different culture, background and status need to come forward and join the hands to make the required change. They are bound by only one bond that is their identity at the gender level. They all are women. They need to understand that solidarity among the partners create the laser force which can penetrate any system but this is huge task and its burden lies on the women at large; mainly the intellectual women need to come forward to forge such solidarity.
The decision will have generational impacts and its true impact will be visible soon. The politics of appeasement is dead now. Patriarchal approach is weaker and women empowerment is on rise. The India moves forward with the efficient function of its institution of law. When institutions become efficient and full of capacity then country becomes modernized. Indian Supreme Court has emerged as the most efficient among all. Hence needs to be saluted and those who stood in support of this change also needs to be respected, mainly women.
Dr. Vivek Kumar Srivastava is Vice Chairman, CSSP, Kanpur