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Thursday, May 25, 2017

The Muslim Law Board has proposed a social boycott of men who use triple talaq – but is this legal?

The Supreme Court in 1962 struck down a law banning excommunications. But Maharashtra criminalised social boycotts last year.

The Supreme Court is expected to pronounce its verdict on the constitutional validity of triple talaq soon, having concluded hearings in the case on Thursday. The All India Muslim Personal Law Board – an NGO that claims to represent India’s Muslims – is doing all it can to convince the court not to ban the practice.
In one of its latest strategies, the board on Monday called for the social boycott of Muslim men who divorce their wives through the controversial method of uttering the word talaq, or divorce, three times at one go. Women are not allowed to access to this method of divorce.

Instantaneous triple talaq has been under legal and political scrutiny since February 2016, when some Muslim women and rights organisations petitioned the Supreme Court against it, on the grounds that the practice violates their right to equality before the law. In October, the Central government, too, moved the court, asking that it do away with the practice.

On Monday, the All India Muslim Personal Law Board submitted an affidavit in the court promising to fight triple talaq in its own way, at the socio-cultural level. It stated in the affidavit that it would incorporate safeguards against triple talaq in the nikahnama (marriage contract) and urge qazis (priests) to advise couples against the practice before solemnising marriages – what most Muslims would consider positive strides towards bringing change on the ground.

The board also stated in the affidavit that Muslims should socially boycott men who resort to “triple talaq in one go”, as this would help decrease instances of divorce. This proclamation has triggered a mixed response from the community and from legal experts. Some have questioned the effectiveness of such ostracism.

But the board’s submission to the court also raises a range of other important questions. How constitutional is the concept of social boycott? What forms can social boycott take, and are some forms more acceptable than others? And how will the Supreme Court respond to the board’s proposition, given its own history with a law on excommunication and Maharashtra’s recent law criminalising social boycott?

Legal history of excommunication
The demand for social boycott as a tool for mob social justice is not new. Many rights movements have called for its use at various points of time. “In the 1980s, women’s groups often demanded the social boycott of families that were responsible for dowry deaths or even rape,” said Flavia Agnes, a feminist lawyer from Mumbai.

However, India’s legal stand on social boycott – and the closely-linked practice of excommunication – has a fraught history.

In 1949, Bombay province (present-day Maharashtra and Gujarat) passed the Bombay Prevention of Excommunication Act to protect the civil, social and religious rights of those excommunicated by their own communities. The law was enacted in response to a request for redressal from members of the small Dawoodi Bohra Muslim community, who had been refused access to religious places and cemeteries and had been denied other rights after being boycotted.

In 1951, however, the leader of the Dawoodi Bohra community challenged the law in the Bombay High Court, saying it infringed upon his constitutional freedom of religion. He contended that as a religious leader, he had the right to discipline the community by casting out errant members.
After the high court upheld the law, the Bohra leader appealed in the Supreme Court. In 1962, a five-judge bench of the apex court delivered a divided verdict that continues to be questioned today. The minority view on the bench came from Chief Justice BP Sinha, who linked the prohibition of excommunication to the abolition of untouchability “in any form” under Article 17 of the Constitution, and held that social ostracism deprived individuals of human dignity. But the chief justice was overruled by the majority judgement that declared the Prevention of Excommunication Act as unconstitutional, because Article 26 guarantees all religious communities the right to manage their own religious affairs.

The Maharashtra law
Fifty five years after that judgement, a review petition filed by the boycotted Bohras is still pending in the Supreme Court. Meanwhile, the Dawoodi Bohra community in Mumbai was reported to be practising excommunication and social boycott as recently as 2014.

Today, three years later, such excommunication could be considered illegal in Maharashtra, under the state’s Prohibition of People from Social Boycott (Prevention, Prohibition and Redressal) Act. The law was enacted in April 2016 in response to growing complaints of rural caste panchayats issuing diktats to ostracise individuals or groups for transgressing social or caste norms.

With this law, Maharashtra became the first Indian state to criminalise acts of social boycott, which include preventing individuals from observing religious practices, cutting off social or commercial ties, and discriminating against anyone on the basis of morality.

In Maharashtra, then, would the All India Muslim Personal Law Board’s demand for the social boycott of triple talaq practitioners be considered illegal? And at the national level, where would such social boycott stand in relation to Article 17 (abolition of untouchability) and Article 26 (right to manage one’s own religious affairs) of the Constitution?

Triple talaq and social boycott
According to Sunni cleric Maulana Mehmood Daryabadi, the All India Muslim Personal Law Board does not intend to violate any man’s “human rights” by calling for the social boycott of husbands who pronounce triple talaq.

“We cannot stop anyone from entering a mosque or going to a funeral, because these are basic religious rights,” said Daryabadi, general secretary of the All India Ulema Council, which is affiliated to the board. “Social boycott here means people would stop talking to the man, not invite him to social events and make it difficult for him to marry again. Those who support him would also be boycotted. If this happens to a few people, others will be scared to pronounce triple talaq and the problem will be solved.”

Other Muslim organisations, however, view any form of social boycott as unacceptable.
“Social boycott is an abhorrent, racist concept that cannot have any connection with Islam or any religion,” said Zakia Soman, co-founder of the Bharatiya Muslim Mahila Andolan, one of the organisations that has petitioned the Supreme Court against triple talaq. “Caste-based untouchability is already abolished by law, and one day it will be abolished in all contexts.”

According to Soman, the board’s invocation of social boycott is a desperate attempt to remain relevant at a time when many Muslims are challenging its self-proclaimed authority.

However, even Muslim organisations that accept the authority of the board – such as the Qaume Majlis-e-Shoora – do not approve of social boycott. “Will the courts accept the practice of social boycott?” asked its secretary Rais Sheikh. “In India it is not considered as an acceptable form of social justice, just like the boycott of Dalits would be illegal.”

A wife’s perspective
Away from these legal postulations, what would the boycott of a husband mean to a Muslim woman who has been given triple talaq?

Zeenat Sheikh, a housewife from Mumbai whose husband left her in this manner after 20 years of marriage, during which she suffered extreme domestic violence, considers the ethics and effectiveness of social boycott in practical terms. “I do not know whether social boycott for triple talaq is right or wrong,” she said. “But I guess it is wrong when people from lower castes are boycotted, or when Muslim women are not allowed in public places like ATMs unless they lift their veils.”

Sheikh also said a social boycott of husbands would be ineffective, whether in towns, cities or big villages. “His family and relatives will not boycott him, even if mine do,” she explained. “His Hindu friends will not boycott him. If he is not allowed in the mosque, he can still pray at home. If the local bania [grocer] does not give him ration, he will just go to another area.”

She added, “Besides, in my case, I have not accepted the triple talaq my husband gave me because I still love him. Why would I want him to be boycotted?”
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