Did you know that triple
talaq is not a Muslim practice but limited to Sunni Muslims? Which is, of course, why it is not permitted in Shia Iran or secular Turkey. Indeed, there are
three forms of triple talaq:
Ahsan (best),
Hasan (good) and
Bidat (oldest). And while the four different schools of Sunni jurisprudence - Hanafi, Maliki, Hanbali and Shafii - are agreed on the theological validity of triple
talaq at one sitting, ever since the time of the thirteenth century Ibn Taymiyyah (1263-1328), the Hanafi school has held that three
talaqs at one sitting constitutes not three pronouncements but only one. Most Indian Sunnis are followers of the Hanafi school. Moreover, the strictest school of Sunni jurisprudence, the Salafi, holds that triple
talaq "is not in keeping with the Quran and the hadith", according to none other than the leader of the Indian Salafis, Maulana Asghar Ali Imam Mehdi.
The purpose of this potted summary of Islamic jurisprudence is only to stress that Sunni Muslims have been arguing among themselves over the question of triple
talaq for over 800 years and need no assistance from the saffron brigade to reform their own practices. Outside interference only has negative consequences on the internal debate.
The concept of
ijtihad (interpretation) is central to Islam. So, while the words of the Quran and the sayings of the Prophet cannot be changed or challenged,
ijtihad allows the true follower of Islam to reinterpret the meaning of the words to be compatible with current requirements. While initially
ijitihad could be exercised only by a highly qualified
mujtahid (male) or
mujtahida (female) steeped in scholarly Islamic studies, and particularly proficient in classical Arabic, increasingly it has to come to mean "independent reasoning" that, according to a Pakistani scholar, Anwar Iqbal,
writing in Dawn "allows Muslims to interpret their beliefs according to the time and place they live in". Since Islam's earliest days, both men and women have had an equal right to exercise their "independent reasoning".
What is happening in the on-going discussion among Indian Muslims on triple
talaq is a good example of
ijtihad in practice. Indeed, it is the women of the Bharatiya Muslim Mahila Andolan who have taken the lead in demanding an end to the practice of "instant divorce" implicit in Talaq-e-Bidat. Under the leadership of Begum Noorjehan Safia Niaz, the Andolanhas collected 50,000 signatures demanding an end to triple
talaq. Equally, another Muslim lady, Asma Zaheer of the All-India Muslim Personal Board (AIMPLB), argues that as "the incidence of divorce in Muslim communities is much lower compared to other ones", the immediate need is to refute outside interference in interpreting the Shari'ah. (She could also have pointed out that the share of triple
talaq in Muslim divorces is very small). She argues, "As citizens, Indians need to decide whether we want to follow the Constitution which gives us religious rights, or some vested saffron agenda."
Thus, when Modi takes it upon himself to claim that "getting Muslim women their rights as per the Constitution is the responsibility of the government and the people of the country", he is actually derailing the process of
ijtihad that is already rallying a substantial section of the Muslim community to the Salafi position on triple
talaq. Even the Salafis, who may be extremist in their views on other aspects of Islam, are at their liberal best on triple
talaq. So why not let the Muslim community get on with their internal debate instead of thundering, as Modi did, "I am surprised that some political parties of the country, in their lust for vote-bank, are hell-bent upon continuing injustice to women in the 21st century".
Let us just deconstruct that sentence. First, who is bringing in "political parties" and separating "some" of them from others? Modi, of course. And he seems to forget that the Muslim community detests him and all he stands for. They have neither forgotten nor forgiven what happened under his watch after Godhra. Estimates are that some 77 per cent of Muslim voters have consistently voted against him in Gujarat, leave alone elsewhere. He has no credentials to speak of but for the few quislings he has co-opted. And the reason the community distrusts him is his "lust" for the Hindu vote-bank. Every time an election is in the offing (as in UP in the present context), he and his cohort do all they can to vitiate the communal atmosphere. What saves our national unity is that it is only a minority of Hindus who listen to his siren call. Most Hindus are not turned on by Hindutva.
Third, "continuing injustice to women in the 21st century" is not confined to Muslim women. What about his party in Haryana that by bringing educational qualifications and toilet restrictions into the panchayat elections debarred 85 per cent of the women elected in the last panchayat elections from even contesting the panchayat elections this time round? Is this "justice for women in the 21st century"? And there is at least one Hindu woman that all of us know who remains cruelly neglected by her husband despite that husband holding high office.
Moreover, when Modi invokes the Constitution to say it is "the responsibility of the government" to get "Muslim women their rights as per the Constitution", why does he not underline that the Constitution unambiguously protects the right of all Muslims - men and women - to their personal laws, and leaves it to each community to determine its personal law? It is not for the ruling party to deploy its brute majority to ram through changes in personal law. That is left to communities themselves to do. When there is such churning within the Muslim community on triple
talaq and they themselves are seized of the question, what need is there for Hindutva extremists like the saffron brigade to tell the community what they must or must not do? In any case, the courts are there. Currently, the issue is before the Supreme Court. There is also already case law, such as Shamim Ara's 2002 case, where the courts have pushed forward the cause of Muslim women in such a manner as to have it become part of Muslim usage and custom.
When Modi makes triple
talaq into a political football, he is doing the greatest disservice to Muslim women like Begum Noorjehan who are bravely fighting their cause. He is also muddying the waters of the judiciary at a time when the Supreme Court is seized of this issue. Indeed, his intervention can only render sterile the efforts of the Law Commission, for while the All-India Muslim Personal Law Board have refused to answer the Law Commission's questionnaire on triple
talaq and been joined by at least five other major Muslim organizations in not taking cognizance of the questionnaire, many other individual Muslims and Muslim bodies like the All-India Ulama and Mashaikh Board are not only interacting with the Law Commission but also convening a national convention of "leading
muftis and experts in Islamic law and Hanafi jurisprudence" to thrash out this subject and work out a consensus. Why then not allow democratic discourse within the community to enable the building of a consensus - that is, afterall, the objective of the Law Commission exercise. Hindutva heads like Modi's are simply not required.
Proof positive of the validity of leaving Muslim law to the Muslim community is to be found in Muslim non-participation in the agonized debates that lasted for several decades since before Independence and into the first decade of freedom over the Hindu Code Bill (that was eventually enacted as five separate Acts). I have tried going through the records of the debates on this subject both during the making of the Constitution and thereafter, without however the benefit of a Google search because the records are still being digitized. As far as I have been able to discover, not one Muslim or any other non-Hindu MP intervened. Only Hindus spoke. Many were in favour; many were against. The intra-Hindu argument reached Rashtrapati Bhavan. The President, Dr. Rajendra Prasad, tried to escape his constitutional duty by refusing to sign the bills passed by parliament despite the recommendation of the cabinet. He had to be read the riot act to consent.
If, therefore, only Hindus worked out the consensus of Hindu opinion on changes in Hindu personal law, surely it is for Muslims - and for Muslims alone - to work out their community's consensus on what changes to effect in Muslim law. It also needs to be stressed that while there was an overwhelming Hindu majority in parliament to determine the outcome of bills relating to Hindu personal law, it is impossible to imagine an Indian parliament with a Muslim majority. Are a handful of Muslim MPs to determine changes in Muslim personal law to raucous cheers from the overwhelming majority of non-Muslim MPs?
Leave this to the Muslims. They have a long, long tradition of internal debate and discussion going back to the earliest days of Islam. Indeed, Omar Khayyam wrote of the "two and seventy jarring sects confute" - for 72 is the traditionally recognized number of disputant sects among Muslims. A Muslim Amartya Sen should write a book on "The Argumentative Muslim". Secular India would be best advised to leave it to thinking Muslims to work out their own way of life. They have been doing so for 1,400 years. Trust them. They will themselves find the right answer.
(Mani Shankar Aiyar is former Congress MP, Lok Sabha and Rajya Sabha.)Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of NDTV and NDTV does not assume any responsibility or liability for the same.