Talaq! Talaq! Talaq! These three magical words today possess the power to rob a Muslim woman in India of her marital rights. While there is a lack of consensus as to whether triple talaq is valid in a single sitting, it has been an issue of contention in civil society. The apex court, with the view of amending the situation, has now taken centre stage. This is with the view of resolving the conflict between personal law and constitutional rights, with the intention of protecting human rights.
The constitutional bench, comprising of JS Khehar (Sikh), Kurian Joseph (Christian), RF Nariman (Parsi), UU Lalit (Hindu) and Abdul Nazeer (Muslim), constituted by Chief Justice Khehar, will adjudicate on the matter. When read with the religious backgrounds of its constituents, the bench provides a promising image because of the religious diversity inherent in it.
An essential point that strikes one like a bullet when one considers the bench is, where are the women? The sole woman judge in the apex judiciary is Justice R Banumathi. The dearth of women in the judiciary, especially the Supreme Court, which has seen only six female judges since independence, has long been recognised. However, it still remains a mystery as to why Banumathi’s inclusion into the panel was not considered – especially when adjudicating on an issue that affects the lives of Muslim women.
Given that anyone can perpetuate patriarchy regardless of their gender, the inclusion of a woman judge cannot be the sole accounting factor towards the delivery of justice to women. The same argument, however, shall then continue to stand when one considers the religious background of the judges. Then the argument that the religious diversity in the panel will ensure a secular approach towards the issue, will be on a slippery slope.
In this context, a fairer matrix for analysis and evaluation of the judges may take into account their judgments with reference to issues concerning gender. This matrix can be useful across differing contexts by just changing the evaluative factor, depending on the issue in question.
This idea is based on the premise of the inevitable biases, inherent, or formed during the course of an individual’s experiences, as suggested by historian EH Carr, which work behind the scenes to give effect to one’s judgments. In the context of judges, they form the foundations for their judgments, which they attempt to justify by assigning a legal value to it.
Another point of consideration here can be about the effectiveness of a single woman’s voice. In this regard, the views of Sheryl Sandberg, in her acclaimed book, “Lean In”, become pertinent. According to the book, the presence of a single woman in a boardroom is a token representation, having two is to have them in minority, and it is when the number exceeds three that their representation becomes substantial.
Such an application in the SC, currently, can be countered by logistical constraints due to the presence of only one woman judge in the panel. However, given the position of authority that Banumathi holds, the possibilities for her contribution are worth considering (where she can also give a dissenting judgment).
The primary idea here is not to suggest incompetency of the male judges of the judiciary. They are currently the torch bearers of justice because of their number. The primary contentions here are two-fold – first, to address the need for the creation of agency and representation of women in the judiciary and elsewhere; second, to also emphasise the creation of a culture of scrutiny from within society, towards the functioning of the judiciary (and also the state).
While the former can be achieved by increasing the representation of women judges in the judiciary, the latter can be ensured, as suggested earlier, by scrutinising the backgrounds of the power holders in question. This value-based approach of gender-inclusivity and vigilance will help guide Indian society away from prejudices and ignorance and towards development.