First published on Firstpost with different headline and slightly edited:
A woman facing violence may take various roads to justice – legal-illegal, justified-unjustified, civil, criminal, constitutional. Shayara Bano decided to eliminate the root cause. Her writ petition before Supreme Court seeking a ban on triple talaq, nikah halal and polygamy poses a challenge to the prevalence of religious personal laws over constitution, and threatens the power and position of All India Muslim Personal Law Board (AIMPLB) as the sole custodian and interpreter of Sharia law in India.
Following her, Ishrat Jahan raised her head from Bengal and challenged Section 2 of the Shariat Act 1937, the law that gives AIMPLB its powers. Another woman emerged from Jaipur and posed similar challenges. Earlier this year 50,000 Muslim women signed an online petition to abolish triple talaq and polygamy. Media is flooded with opinion pieces, journalistic stories and personal narratives by Muslim women questioning several religious practices. There is an uprising, angry Muslim women from all corners are coming together as organizations and associations to proclaim, “Enough is enough. We would no longer be treated as lesser human by the self-appointed male custodians of religion. We are tired of adjusting, tip-toeing and manoeuvring around the male ego and privileges, making peace with small mercies. We shall take this fight to the street now, head on. This is a full blown war.”
But Flavia Agnes wants them to slow things down and go easy on the whole ‘right to equality’ thing. She would rather women do not rub equality at patriarchy’s face too much. Don’t risk getting isolated by the community, she says. Why rush to Supreme Court, she asks.
One of India’s most revered feminist, Agnes has expressed her discomfort with Shayara Bano’s petition, a stand that has left Indian feminists bewildered. It is getting increasingly difficult to digest her views but openly criticizing her is some sort of feminist blasphemy.
In an EPW article in May 2016 Agnes questioned the positive media coverage of Bano’s petition and maintained the same view in another piece published last week highlighting the “few positive aspects” in the affidavit filed by AIMPLB. She claimed the petition is useless and serves no purpose in helping Muslim women gain equality. Citing various judgements and laws she argued that the negative media narrative that Muslim women are suffering under personal laws and need rescuing is not true. That there are several relief options already available to them and therefore Shayara Bano should not have rushed to Supreme Court, a move Agnes suspects would potentially “isolate her family that belongs to a conservative social milieu.”
One really hopes that a woman of Agnes’s stature would be able to keep legal nuances and personal attacks separate, but she couldn’t. She insinuated that the petition is a “strategy” by a “little known lawyer” to gain “instant fame” effectively implying that Shayara Bano cannot think for herself and it is the lawyer who is calling the shots. She tried to portray Bano as a woman of insufficient intelligence making arbitrary inconsistent statements. She uses patronising statement like, “a victim of domestic violence cannot be criticized for her answers” and in that she falls into her own trap. She argues Muslim women do not need rescuing but the underlying thought seems to be that it is only she who has the legitimate authority to rescue Muslim women, not some random lawyer with evil plans.
Ms Agnes relies upon Muslim Women (Protection of Rights on Divorce) Act, 1986 as the existing legal recourse available to Muslim women. The said Act merely gives women a few ‘reasonable’ and ‘fair’ entitlements ‘on divorce’ and doesn’t talk anything about women’s right to divorce. Divorce in Sharia Law is unilateral. How could this law have helped Shayara Bano and other petitioners whose demand is to end the practice of unilateral divorce by husbands at their whim.
Ms Agnes calls the petition futile because Supreme Court in Shamim Ara case of 2002 has already made instantaneous triple talaq invalid unless husband can prove “reasonable cause” and “prior reconciliation.” But the question remains, why should women be first shown the door by triple talaq, and then fight it out in the Court? How many women in India even have the means to access justice? Where the wife has no financial stability or family support she would have no option but to accept a triple talaq.
Shayara Bano’s petition however might drastically change this power structure. Her success would give out a strong message to Muslim men and religious leaders that their very power and privilege is now illegal.
Comparing AIMPLB’s present response with the one previously held in Danial Latifi Case, Agnes puts emphasis on the seeming fact that the deeply misogynist AIMPLB is after all warming up to the sad and bitter reality that Muslim women are also humans. She thinks it is jolly splendid that the Board now ‘progressively’ urges Shayara Bano to approach the lower courts rather than settle disputes in some Kangaroo Courts like Darul Qazas. Unfortunately, far from being splendid, this sounds eerily similar to saying ‘triple talaq is at least better than killing the wife.’
Truth be told, Muslim women in India live in a dark isolated space treated as lesser human by their own community and disowned by the Constitution in name of religious autonomy. Flavia Agnes wants them to remain in their dark ghettos and not reach out to the Supreme Court seeking Constitutional rights.
Through her various articles however, Ms Agnes fails to show what is there to lose by Shayara Bano’s petition? There may not be a significant change overnight but are things likely to get worse?
Through the annals of time Courts have altered power structure and status quo through historic judgments. If nothing else, a Court order is a massive endorsement that women lives matter, homosexual lives matter, black lives matter. Petitions such as Bano’s or those by Trupti Desai’s seeking equal right to pray are symbolic wars and signpost moments for the women’s movement. Sure, it is not an easy road and there are more pragmatic alternatives. But if few brave women chose to take the difficult road, how do they deserve anything else but applause, is a question Indian women would like to ask honourable Madam Agnes.
Dr Sanjukta Basu 
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