What It Means When An All-Male Jury Pronounces The Triple Talaq Verdict

Posted by Saquib Salim in Society
August 29, 2017

With Supreme Court (SC) delivering a historic judgement on the practice of instant triple talaq, i.e. divorce by uttering the word ‘talaq’ thrice in one sitting, diverse reactions are pouring in from different sections. Most people have hailed the judgement as a blow to patriarchy and have gone on to claim it as a feminist decision. A number of media houses have pointed out to the fact that all five judges on the bench belonged to different religions. This is being used as an example to prove the secular and progressive nature of the Indian judiciary.

While going through all these reactions, a couplet from the famous Urdu poet and Bollywood lyricist Sahir Ludhianvi kept echoing in my head;

Mardo ne banayi jo rasme
Usko haq ka farmaan kaha

(The traditions and laws set by men
were termed as a righteous and heavenly verdict)

Sahir has rightly called out to the patriarchal nature of all religions. All the religious and social laws, which are being legitimised in the name of God, are given to the society by men. Be it Manu or other sages of the Hindus, Muhammad and the later successors of Muslims, Buddha and the disciples of Buddhists and Christ and the later saints of Christians, all law formulators and religious leaders were men.

It was hoped that with modern ideas of secularism, democracy and equality, women would get out of these shackles of male enslavement. However, has that actually happened?

This instant triple talaq verdict shows the opposite. Men formulate the laws and women have no say of their own with these patriarchal structures still governing them. Five male judges of the honourable Supreme Court have decided over an important woman centric issue. This can be compared to the situation when men in Saudi Arabia gathered without a single woman present to discuss women’s issues and the entire world laughed at them.

The situation becomes even more depressing when you realise that nobody is pointing out this anomaly. Women’s rights groups and members of the civil society are busy hailing the decision and failing to ask the tougher question; where are our female judges?

It must be understood that representation is the first step towards equal treatment. The judiciary has to deal with several women centric cases such as rape, sexual harassment, dowry deaths, domestic violence, etc. To have a fair judgement, we need a gender inclusive judiciary. However, the truth is that we have a male biased judicial system in our country.

As a matter of fact, at present only one of 28 SC judges is a woman. Since independence, 229 judges have been appointed to the SC of which only six were women. It took 42 years after independence for a woman to become an SC judge when Justice M Fathima Bivi was appointed in 1989.

This is not the first time that an all male bench decided upon a major woman’s issues. A 5-member male bench had decided the famous Shah Bano case while three male judges ruled for the Hindu female’s right to maintenance in 1977. These judgements might give an impression of being pro-women, but the very fact that women do not have a voice in these judgements is a serious flaw that is not very different from religious jurisprudence.

Recently some scholars in the West, have identified that the judiciary and its authority is gendered. According to Baroness Hale, the ideal of a judge being anonymous, dehumanised, impartial, and authoritative is ‘intrinsically male’.  She writes, “We have to challenge the notion that the only person who can be taken seriously as a neutral and fair-minded person is the judicial equivalent of a tall man in a suit.” In our society, the judiciary is synonymous with authority and that in turn is associated with masculinity.

The image of a judge in arts, poetry, literature and films is also usually of a man. Recently the “Jolly LLB” series was admired across circles. The early 90s courtroom drama “Damini” made Sunny Deol a household name. “Mohan Joshi Hazir Ho” is a milestone in offbeat cinema.  A man sitting in a judge’s chair connects them all. As a society, we cannot imagine a woman taking decisions.

A misogynistic society that wants to act as a guardian of women in the real issue. Religions, across the board, in bits and pieces, provided women something that can be called progressive. However, they never allowed them a voice.

Women remained subjugated with no decision-making agency. Religious leaders drew legitimacy through religious texts, while the modern state does it through the constitution and legislations, but both of them are agencies of men. Women are infantilised under the guardianship of men.

It is high time that we take notice of this flaw in our society. After almost 70 years, women still need to break the shackles of patriarchal guardianship. Let women take decisions alongside men.

Eight decades ago, an Urdu poet Kaifi Azmi urged the women by saying :

Shatter these resolve breaking suspicions of sermons
these vows that have become shackles
this too, this necklace of emeralds
these standards set by the wise men
You have to turn into a tempest, bubble and boil over

Let’s follow her words.

The author is a researcher of History and a freelance socio-political commentator, with a special interest in Muslim issues

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