Triple Talaq- The courts, the politics, the society and the media.

Yesterday, the Supreme Court of India finished hearing arguments in a case challenging the constitutionality of the practice of ‘instant triple talaq/talaq-ibidat’, Nikah Halala and polygamy. The issue needs an intersectional analysis. It cannot and should not be seen from the sole perspective, either of law, gender, politics or religion. It is also critical to evaluate the role and quality of discourse.

First, I say this with great respect that in refusing to evaluate the constitutionality of Nikah Halala (Loosely described as a religious requirement that a divorced woman first marry and sleep with another man before returning to her husband) and polygamy and restricting itself only to triple talaq, the Apex Court has abdicated its duty. Despite being urged to do so by the government as well as the All India Personal Law Muslim Board (AIPLMB), the court has also refused to rule on whether all personal laws should come within the ambit of the Constitution of India. Instead, it chooses to continue with analysing whether a practice is essential/fundamental to the religion. This is most disheartening.

The court is not a panchayat, and it is not a priest. I am guessing that the reasons behind the court’s approach to this are (i) the court not wanting to open floodgates of litigation and causing ‘chaos’ in society and, ii) the belief that such changes must happen incrementally. The chaos reason makes no sense especially since the government itself is willing to take the responsibility of maintaining ‘order’. It is rather cruel that women must once again bear the burden of ‘preserving order’ because the court refuses to uphold their rights which are otherwise guaranteed in the constitution.

Secondly, the reasons that are being put forward against abolishing triple talaq. The AIPLMB shamelessly said that the court’s interference might revive a ‘dying practice’. This is tantamount to saying that don’t impose reform or we will wreck even more cruelty on our own brethren. Shame. Some argue that in such situations reform must come ‘from within’. There is (and reasonably so) a certain amount of anxiety being felt by a part of the Muslim community because of the timing of these developments. Is a majoritarian government on a rampage? What if this attempt at ‘liberating Muslim women’ is just a charade to fool people into believing that it is indeed secular and liberal? Flavia Agnes points out in her book Family Laws and Constitutional Claims that in such times religion becomes an even more important marker of identity. She argues that the intended reforms are rendered ineffective because such imposition pits women against their community.

The obvious question is, why didn’t these regressive practices get abolished when other governments were in power. If the intentions of the BJP are indeed mendacious, who is to be blamed for letting things coming to such a pass? The formula of incrementalism has only led to more chaos. It has only led to all political parties pandering to the regressive clergy of all religions.

Third, some people have also expressed pain at the discourse painting Muslims as this regressive, primitive community which abandons women at the drop of a hat. They ask, are there no inhumane practices in other religions? Why aren’t they being dealt with first/together? In her book, Agnes reminds us of the long, painful and continuing journey that is the reform of Hindu Personal Law. Sardar Patel, Rajendra Prasad, and the RSS opposed the right of women to divorce, the abolishing of coparcenary and inheritance to daughters amongst Hindus. Until 1955, polygamy was permitted amongst Hindus. Until 2005, daughters had limited rights in the ancestral property. Marital rape and child marriages are still pervasive across religions. These are, however, arguments in favor of abolishing all regressive laws and practices.

Fourth, the sensationalist approach of the media. The media would have everyone believe that an average Muslim man is a regressive adulterer at best and a terrorist at worst. Tragically, an average non-Muslim rarely interacts with Muslims. Again, all communities, the government, and the courts share blame for this. For instance, there is zero movement on housing discrimination being outlawed. Everyone loves their ghettos. An average non-Muslim learns about Muslims through the media which paints an astonishingly ridiculous picture. The media has failed to educate people about the reform of the personal law in every religion. It has failed to point out that instant triple talaq is not the only way (and by some accounts not even the prevalent) mechanism of divorce. It has failed to inform people that Islam and Muslims are not monoliths. It was duty bound to do so. It must reflect on the damage this failure is resulting in before it is too late.

Finally, instant triple talaq must be abolished pronto. Obviously, these are not the ideal set of circumstances in which this should have happened. But they will have to do. The society, courts and the government already compel women to bear too many cruel burdens. No more.

This article was first published in Mumbai Mirror


Courts and religion. A very short story.

In a mythical land called supremistan, the following series of events happened. We begin, for obvious reasons, from the middle of the story.

C: No we don’t want to do this Article 13 business. All we want to talk about, is ERP. All five chant: *ERP! ERP!*.

L: But mygods, the constitution..

C: Boooooringggggg. Do you want to talk about ERP or not? We are ready to write judgment. My minion has taken out 377 quotes!

L: Sure mygod. ERP it is. So mygod this focus on ERP raises some preliminary jurisdictional issues.

C: Huh?

L: Yes. You see the book only recognises a,b,c and d sources of law. There is no mention of mygods. It appears that it is essential to the practice of this book that no one cares about anything a bunch of people sitting in something called Supremistan say. In fact, I think it is essential that supremistan and ummm the offices held by mygods cease to exist.

C: What nonsense. We are not at the mercy of this book. We only understand and interpret.. *awkward moment*.. oh.

L: Sorry mygods I think I have misunderstood. I think mygods said essential constitutional practice…?

C: Yes of course. Please proceed.

The Great Betrayal

The govt has, for all practical purposes, final veto over the appointment of judges.

Judges of High Courts across the country and the Supreme Court are appointed by a ‘collegium’ consisting of the Chief Justice of India and four senior-most judges of the Supreme Court. This system was a creature of three judgments passed by the Supreme Court, popularly known as the Three Judges Cases. In 2014 the National Judicial Appointments Commission Act and the Constitution (Ninety-Ninth Amendment) Act, 2014 were passed by Parliament, thus replacing the collegium system with a commission comprising of 3 Supreme Court Judges, the Union Minister of Law and Justice, and two ‘eminent persons’. Suffice to say that the NJAC act was a horrible legislation that claimed that the collegium system gave excessive and unchecked power to the judiciary and to remedy this, the act simply gave unchecked and excessive power (over the appointment of judges) to the Parliament.

One of the many common threads running through the Three Judges Cases and the NJAC case was the question that in the event the executive and the court reach a deadlock over a prospective appointee, which organ of the state will get primacy (final veto)? This is a question not just about a procedural conflict, but also one deeply impacting independence of the judiciary. Why is the independence of the judiciary important? Because it keeps the Parliament and the Executive in check and protects citizens from excesses by these organs. Various cases decided by the Supreme Court, including the NJAC case, concluded that independence of the judiciary could not be achieved without judicial primacy over the appointment of judges. In the NJAC case, the Supreme Court held that since independence of the judiciary is an un-amendable feature (part of the basic structure) of the Constitution of India and since this independence cannot be achieved without judicial primacy over appointment of judges, a law which takes away this primacy (the NJAC act) is unconstitutional and is therefore struck down.

The judgment in the NJAC case, however, concluded by saying that the government should draft a Memorandum of Procedure (MOP) to suggest changes in the collegium system and that M.O.P would be vetted by the apex court. This was most bizarre because the changes the government wanted to suggest were being reflected in the NJAC Act. Secondly, why did the Supreme Court not bring about these ‘changes’ and ‘reforms’ in the process of deciding the case, or in the final judgment passed by the court? Your guess is as good as mine. The Union Government, which initially seemed to be reluctant to participate in this exercise, enthusiastically began the process and a to-and-fro over the MOP began. There was much that the judiciary and the government disagreed over.

Meanwhile (presumably a tactic of the government to pressurise the court) appointment of judges to various courts was more or less put on hold by the government much to the anguish, at least of the previous Chief Justice of India, T.S. Thakur, who reportedly broke down in tears over the government’s obstruction and arrogance.

One of the many clauses that were the subject of this deadlock over the MOP was the ‘national security’ clause. The government wanted a veto to reject any judges if it felt ‘national security’ was at risk. This assessment of the government was not open for discussion. The 87th report of the Parliamentary Standing Committee on Law and Justice said that this clause was a bad idea and tantamount to a veto being given to the government. Thakur said as much and expressed concern that this clause would be misused by governments. Ravi Shankar Prasad reportedly gave assurances in Parliament that the government was not seeking a veto.

According to a report in the Times of India, the deadlock over this clause has suddenly been resolved, and the court has conceded with the caveat that the government must give reasons for rejecting someone under the clause. This may look like a compromise at first glance, but the fact is that the government now has the final veto over appointment of judges. This development is contrary to the judgment of the Supreme Court itself in the Second Judges Case and the NJAC case (and therefore violative of the constitution). What was the point of long disputes over decades and especially the entire NJAC case if, finally, primacy was to be given to the executive? We are now in a bizarre situation in which a lengthy, detailed judgment was passed only for a MOP to go against the said judgment, all behind closed doors. There is no provision in the constitution of India which allows for judgments to be altered in this manner. Will this now become a custom? Each time the government is upset with a case, will it be allowed to have closed door discussions with the court, which will end in the judgment being changed? Another fact that casts a shadow over the matter is allegations of corruption against certain judges of the SC (among others) made by Kalikho Pul, the former CM of Arunachal Pradesh, in his suicide note. In an ideal world, all judges named should have recused from all work, including drafting of the M.O.P. We don’t live in an ideal world. The summary is that once again, we have been thoroughly and collectively betrayed by all the organs of the state.

This article was first published in The Mumbai Mirror

The farce of women’s day.

A lot of things have remained unchanged between the last Women’s Day and the one that just went by: marital rape, triple Talaq…

It lasted twenty-four hours. I suspect these twenty-four hours must be torturous for so many. It wasn’t like brave souls didn’t raise their voice against the oppression, so powerful was the onslaught, they were summarily crushed. I am talking about International Women’s day, which was recently celebrated all over social media, by several brands, and in several restaurants and bars.

While there were those who weren’t worried, some people rightly expressed apprehensions that it was unfair for women to have one special day for themselves, while men didn’t. Well, to be fair, it’s possible that in the early days of patriarchy, men must have felt special but they soon got used to and bored of all the oppression they perpetrated, and now there’s nothing special about the remaining 364 days.

I mean, are men really wrong when they complain about stores offering discounts to women? So what if men enjoy far bigger ‘discounts’ in the form of much higher wages? (A 2010 report of the World Economic Forum claims that even in the corporate sector, women are paid one-third of what men in the same position are paid.)

There is a school of thought, which believes that if things get out of hand, one day could soon increase to two and maybe even a whole month. We must not get carried away. I believe that all such concerns are unfounded, because men march on as gloriously as ever and nothing really changes.

To reassure other men I have made a list of the things that remained unchanged in India between the last women’s day and this one:

1) Marital rape continues to be legal. Several studies show that it is also commonly prevalent. Rape is legal in India, as long as the person doing it happens to be your husband. Yes, there are many countries in the world where marital rape is a crime (including Nepal) and there is no significant abuse of law. Yet, people continue to raise the spectre of the institution of marriage and family getting destroyed if marital rape is criminalised in India. Women being raped is a small price to pay for the long life of these institutions.

2) Adultery continues to be a crime. If a married woman sleeps with a man who isn’t her husband, her husband has the right to sue the said third man. The woman’s consent in filing this case, or the fact that she chose to do as she pleased with her body is irrelevant. Her body is not her own. The law’s origins can be traced to the 16th century (four hundred years ago), a time when it was cool to openly acknowledge that women were the property of men. Those were the days.

3) Women’s reservation bill, originally tabled in Parliament in 1996, has still not been passed. The bill is futile anyway, because there is still a lot of confusion over what women should be allowed to eat and wear and who they should have sex with.

4) “Sex against the order of nature” continues to be a crime under Section 377 of the Indian Penal Code. This is simple. We are regressive and cruel by nature, so members of the LGBTQ community having sex is against our nature. Indians have tremendous clarity when it comes to sex- we are busy either arguing that we must be allowed to forcibly have sex, or arguing that someone else must not be allowed to have any sex.

5) The government has not come out with a law that prohibits housing discrimination – and the society takes care of the rest by ensuring that single working women find it difficult to rent houses. They are getting discounts once ayear, though, and one shouldn’t be too greedy.

6) While there is plenty of debate around the matter, Triple Talaq continues to be legal. When it is otherwise clear that men own women, why is there so much conversation around whether they can be summarily dumped and abandoned?

7) On Twitter, the Prime Minister of India continues to follow people who threaten and abuse women. In case you’re not a Twitter person, ‘follow’ here does not mean he is monitoring them, it actually means that he finds them interesting.

8) The government continues to make a mockery of the Nirbhaya Fund, with a large part of the funds lying unused. Also, the government had initially planned to have 660 one-stop centres, which would provide medical, legal and psychological assistance to rape survivors. The number has now been scaled down to 36. The government clearly came to its senses and realised that not all men are rapists and so, we don’t need these many centres. Modi marked the occasion of women’s day strangely not with an acronym, but by saying that he ‘salutes nari shakti’. This is large-hearted of him, because we all know that while oppressing a group of people, it is helpful to tell them that they are very brave and full of shakti. There was this slogan doing the rounds during the 2014 national elections. Was it ‘Bohot hua naari pe vaar, abki baar discounts in bar’? No, I don’t think so.

This article was first published in the Mumbai Mirror

On Police Reforms

If you love conspiracy theories, I have one. February has been designated as ‘beat up someone for not being patriotic enough month’. Last year it was Kanhaiya Kumar, this year self-proclaimed patriots are beating up students and professors in Delhi University. Patriotic people are also threatening Gurmehar Kaur with rape and murder for basically saying there should be peace between India and Pakistan. Many people are also claiming that Gurmehar is, in fact, an agent of the ISI. The ISI has a very simple recruitment policy. All you need to do is express an opinion different from the currently popular brand of patriotism.

But worry not, because we have a proactive government in power and the matter is being dealt with at the highest level. Kiren Rijiju, minister of state for home affairs, has expressed anguish. I am no longer sure what the home ministry’s job is, but Wikipedia says it is responsible for the maintenance of internal security and domestic policy and is also the cadre controlling authority for the Indian Police Service. Therefore you will be satisfied to know that the anguish Rijiju expressed was about how Gurmehar’s mind is being polluted. Priti Gandhi, a spokesperson of the BJP, tagged Gurmehar and told her that Gurmehar’s deceased father would be ashamed of her. All is well. I, however, agree with Rijiju. Anyone who wants to talk about peace and interrupt a country in the middle of an orgy of rage certainly has a polluted mind.

I am not going to launch into yet another rant about crazy ideas like freedom of expression or fascism that no sane person cares about. Instead, I have another radical idea: that the police should prevent/promptly hold accountable anyone engaged in violence regardless of the emotions in the mind of the person committing the violence. Even a motive/emotion as exalted as patriotism. To ensure that the police do this, it needs to become professional and free of political control. Politicians survive on popular opinion, if popular opinion is murderous, or if politicians provoke people to become murderous then they often direct the police to look away from people committing violence. Sometimes they also direct the police to frame people who haven’t committed any crime.

Even in matters free of political ramifications/crimes that the average Joe/Jill often becomes a victim of, the common perception is that the police are corrupt. That access to influence and/or wealth is critical to ensure that the police will treat you with respect /discharge its duty well. A friend whose car got stolen went to the police station only to be told by a head constable that he had two options: a) leave twenty-five thousand rupees in a packet, and the car would be delivered to him the next morning b) Scream and shout about this demand of bribery and get the FIR for car theft registered and wait for justice. He paid, and the car was duly delivered.

In 2006, in a PIL filed by Prakash Singh, who retired as the Director General of the BSF, the Supreme Court of India delivered a judgment directing the State and Central governments to bring about police reforms. The judgment, inter-alia, directed governments to ensure that the function of investigation is handled by a part of the police force free of all other duties (this would radically improve the quality and pace of investigation); form a police establishment board that would decide on transfers below the rank of Superintendent of Police; fix a minimum tenure for police officers etc. All this was intended to free the police force of political interference. More than ten years later no government has seriously implemented these reforms. Yesterday even the Supreme Court seemed resigned to this fate. During a hearing in the case seeking implementation of the judgment, the court observed: “Nobody listens to our orders”.

The BJP, which rode to power promising to remove all corruption, overhaul all institutions, and is being led by the greatest prime minister in the world, has also done zilch to implement these reforms. Which is understandable because the home ministry is occupied with the urgent task of identifying each and every anti- national person in India. The police can stay the way it is, patriotism will cure everything.

To be fair, Narendra Modi has done one thing: coined an acronym. In 2014, he said the police need to become S.M.A.R.T. = Strict and Sensitive, Modern and Mobile, Alert and Accountable, Reliable and Responsive, Techno-savvy and Trained.

Unless we enjoy being distracted by this frenzy of patriotism, maybe it is about time we become smart too.


This article was first published in Mumbai Mirror

Lipstick under my burkha

The Central Board of Film Certification (popularly known as the Censor Board), which exists because there are no adults in India who can think for themselves, is being unfairly attacked. I, for one, will not stay silent while this injustice continues. However, I do advise that you stop right here and take this article to someone in the Censor Board and ask them if it is OK to read it.

With that out of the way, here’s what is happening: the board has refused to certify Prakash Jha’s upcoming film Lipstick under my Burkha. I saw the trailer and the movie seems to be about four independent-minded women who have sexual desires sans the objective of having a child/independent of marriage. If only the filmmakers had argued that the movie is fantasy fiction like the Lord of the Rings, then maybe the movie may have made some sense, but they did not do that. More importantly, and this is an act of deceit no one seems to have noticed, the title of the movie is Lipstick under my Burkha.

CBFC refuses to certify Prakash Jha’s film Lipstick Under My Burkha

This was clearly done to fool the Censor Board, because going by the trailer there is more lipstick outside the burkha than inside it, and even the women seem to want to get out of the burkha, or any clothes at all, without appropriate permission from the society/their husbands/boyfriends/fathers/men.

The Censor Board, it must be known, does not take the responsibility of controlling the minds of crores of Indian citizens lightly, and therefore the movie was rejected for the following reason: “The story is lady-oriented, their fantasy above life. There are contanious sexual scenes, abusive words, audio pornography and a bit sensitive touch about one particular section of the society.”

Many people are saying that this line of thinking is regressive but they are wrong. I am yet to read an order of the board, which is this honest, compassionate and forward-thinking. The board bravely calls out the movie for being lady-oriented. Pray, tell me, what is lady-oriented in this country?

Not public spaces, not marriages (dowry, marital rape, viri locality), not employment inside or outside government, not the judiciary, which hardly has any women judges, not the Supreme Court of India, which recently held that women are duty-bound to live with their in-laws, not religion for sure.

Why must such unrealistic ideas be perpetuated? The board also rightly identifies their fantasies as being ‘above life’. This has more depth and wisdom than is apparent at first glance. Firstly, the very idea of women fantasizing is unknown in our society except for a few victims of western culture.

Secondly, it is well-known that women fantasizing about choosing who they want to marry, or forgetting that they are merely a part of someone’s ‘honor’ -— often costs women their life. The board is therefore simply saving lives. The order states that the movie contains sexual scenes. The problem is that the film seems to be about women who want sex without any reasonable goal. They don’t want it to bear a child who will take the name of his/her father forward. They are neither married nor sex workers. Why else would women want to have sex?

Despite rumors to the contrary, Indians know that women don’t masturbate. There are no women who want to have sex just for the sake of sex. No women who want to pick up men, have sex and say thank you, goodbye. (Men do this but women don’t.) Everything that women wear each day of their lives is to either please men or provoke them. Women don’t have a body independent of how it exists in the minds of men. Every aspect of a woman’s life exists for consumption by men. Coming to the board’s beef with women using abuses/expletives, I can’t believe that experienced filmmakers can be this naive.

Women don’t use expletives. Women are expletives. How else would men insult/humiliate each other? There would hardly be any expletives if there were no women (which is something many Indian families tried very hard to achieve — kill before being born, kill immediately after birth, kill after marriage, and so on).

Similarly, women don’t watch pornography; they are the subject of pornography. Thousands of women have been destroyed for these ideas to be clearly understood by the society. I am sure that the board believes that their sacrifice must not be in vain. I leave you with an anecdote that a friend shared, but I obviously did not believe. My friend said she walked into her mother’s room to find her masturbating with a radish. She was shocked, and the first and only word that came out of her was Mooli!

Her mother calmly responded: “Kela naazuk hai, jaldi toot jaata hai.” (The banana is delicate, it breaks very quickly).


This article was first published in Mumbai Mirror


National media’s silence on Kalikho Pul’s suicide note is deafening

First, the facts. A former Chief Minister of a state commits suicide. He leaves behind an emotional suicide note running over 60 pages. The suicide note contains allegations against several politicians, including a sitting Chief Minister, sitting Supreme Court Judges and senior lawyers/legal officers (to the effect that he was asked to pay bribes by people claiming to act on behalf of these judges to swing a decision in his/his party’s favour).

Also Read: Late CM Kalikho Pul’s Tainted SC Judges and Fixed Vetting Process

In any other democratic country, with even an iota of shame, nay, pretence of shame or even notions of integrity, this event would have shaken the country. Everything else would have stopped. Television news channels would have been debating the matter day and night. This would have been a front page news for months in any newspaper which continues to believe that speaking truth to power or demanding accountability is still fashionable.

At least one politician or a judge would have resigned fearing outrage. The government would have probably sanctioned an inquiry headed by a lame-duck pliable person out of need, just to show that something was being done. One would expect nothing less than 2.5 years after so many people came on the streets protesting ‘corruption’ and of course, a Lokpal.

The Brazen Impunity of Ignoring Pul’s Suicide Note

Is any of this happening?

Jaane bhi do yaaron.

What is happening can only be described in two words: brazen impunity. The person who committed suicide was the former Chief Minister of Arunachal Pradesh Kalikho Pul. According to a report here, his wife has petitioned the Chief Justice of India, seeking that a FIR be registered and investigation into the allegations against judges be commenced. The permission of the Chief Justice of India (CJI) is necessary before any FIR can be registered against a Supreme Court Judge.

Also Read: ‘Receipt’ Could Nail SC Judges Who Took Bribes From Late CM Pul

She has reportedly also requested the CJI to place the petition before another judge “in accordance with the judgment in the Veeraswami case for consideration of my request.” The Veeraswami judgment inter alia says that if allegations are being made against the Chief Justice herself, then they must be placed before his brother/sister judge to decide whether the allegations prima facie merit investigation.

Also Read: Exclusive: Kalikho Pul’s Wife Says She’s Lost Faith in Judiciary

Suicide Note Doesn’t Mean an Investigation Can’t be Launched

At the center of this controversy is the suicide note. What is the evidentiary value of this suicide note?

In this case, while the note by itself cannot be a decisive clincher for the allegations contained therein, the first step, (if anyone is interested in investigating the matter that is) is would be to prima facie establish the authenticity of the note. The note is reportedly signed by Kalikho Pul.

Also Read: Late CM Kalikho Pul Blames Corrupt Law Officers in Suicide Note

At the very minimum the authenticity of his signature can be easily established. The second step would be to begin investigation insofar as the allegations are concerned. For instance, the note talks about Pul having met x/y person at x/y Five Star Hotel, this can be easily verified by obtaining the CCTV footage of these hotels.

There are just examples and I’m giving them to counter a narrative which says merely because a sentence is written about someone somewhere does not mean that an investigation should be commenced; especially when senior constitutional functionaries are involved.

Let me make this clear: the fact that today, all we have is a suicide note, is no bar against an investigation being launched. It would be incorrect for anyone to hold that an investigation cannot be commenced merely because there is nothing else, besides the suicide note.

SC Should Take the Lead

While it is important to understand, and discuss the evidentiary value of such a note in strictly legal-technical terms, in my opinion that in an ideal world, a world where the dignity of the highest court of the land was considered sacrosanct and precious, the Supreme Court would, especially in the facts of the case, take the lead in saying that to preserve this dignity we don’t need to wait for enquiries.

In an ideal world, the judges named would want to set extraordinary standards of probity and would resign or recuse from further judicial work. The Supreme Court will not be seen doing justice if all continues as usual despite the dark cloud of those allegations hanging over its head.

They would do this to uphold and practice the principle of natural justice that “Not only must Justice be done; it must also be seen to be done.”

When the Lokpal ‘movement’ was at its peak, many people expressed concern and said the authority of the parliament was being undermined. They said that populist sentiment and mobs should not be dictating the parliament.

Many lamented that if only people at large believed that the Parliament was doing its job and had faith; then maybe things would not have come to such a pass and would have urged elected representatives to reflect.

I say this with complete humility; perhaps there is a lesson in this for the judiciary as well.


This article was first published on Quint