‘Top-down’ approach on triple talaq the way out

Satya Prakash

There are two ways to deal with discriminatory social practices — to leave it to the society to evolve and get rid of such practices or to use law as a tool to achieve desired social change.

The first one follows a “bottom-up” approach in which the objective can be achieved without much social upheaval, but it would take decades. The second is known as “top-down” approach requiring state intervention to push the society in a direction away from practices rooted in gender discrimination and to bring them in sync with constitutional objectives of equality and dignity.

This approach accelerates the process of change. However, it creates social tension as status quoist elements resist it, for they may not be comfortable with the manner and pace of the change sought to be pushed through by the state. Abolition of “sati” and untouchability, Hindu personal laws and criminalising the practice of dowry are good examples.

Analysed from this perspective, the legislative experiment on instant triple talaq appears to be a step in the right direction as government figures show a sharp decline in incidents of Muslim women being subjected to instant divorce after the enactment of the Muslim Women (Protection of Rights on Marriage) Act a year ago.

As against 3,82,964 cases between 1985 and 2019 i.e. 11,263 cases per year, only 1,039 incidents were reported since the enactment of the law. The issue remained on the backburner for decades as the Indian state and the political class had an unwritten understanding with conservative elements of the Muslim society that viewed any change in their personal laws as an attempt to interfere with their religious practices.

However, some brave Muslim women, including victims of instant triple talaq, managed to disturb this understanding by asserting their right to equality, right to non-discrimination and right to live with human dignity before the Supreme Court.

Ironically, while the Muslim women asserted their fundamental rights guaranteed under the Constitution, majority of the judges in the five-judge Constitution Bench decided the case on the basis of the Quran, though in their favour.

But the Supreme Court's verdict and the subsequent law enacted by Parliament vindicate the 'top-down' approach to deal with gender discrimination.

Join Whatsapp Channel of The Tribune for latest updates.