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A case to withdraw the triple talaq Bill

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The Prime Minister’s lament to the outgoing RajyaSabha MPs that they missed out on an opportunity to debate important issues such as the triple talaq Bill — the Muslim Women (Protection of Rights on Marriage) Bill, 2017 — due to disruptions is an indication that despite widespread public opinion against it, the Centre is inordinately keen on making it a law.
What defies comprehension is the refusal of the Central government to appreciate the legal point that no person can be jailed for an act that is not a crime. The Supreme Court, in ShayaraBano v. Union Of India (2017), had set aside the validity of instant talaq (talaq-e-biddat), thus rendering its pronouncement ineffective in dissolving a marriage. Yet this Bill makes the pronouncement punishable with a three-year imprisonment without realising that such an arbitrary exercise of legislative power is liable to be judicially reviewed and struck down for violating the principles of natural justice and rule of law.
Interest in the triple talaq Bill has also been sustained by the erroneous belief held by some women’s organisations that the pronouncement of talaq-e-biddat could be brought under the definition of emotional abuse mentioned in Section 3 of the Protection of Women from Domestic Violence Act, 2005 (PWDVA).
This view is as legally untenable as the obsession to criminalise inconsequential words. The PWDVA brings “verbal and emotional abuse” under domestic violence and defines it as: “a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.”
After its invalidation by the apex court, instant talaq comes nowhere near this definition. It will constitute abuse only if it is accompanied by the forcible removal of the wife from the matrimonial home, or her abandonment. But the Bill criminalisestalaq-e-biddat even if it is not followed by eviction or desertion of the wife.
And as per Section 31 of the PWDVA, a person who indulges in domestic violence to the prima facie satisfaction of the magistrate can ultimately be punished with imprisonment which may extend to one year, or with a maximum fine of ?20,000, or with both if he violates the “protection order” issued by the magistrate under Section 18 of the Act.
A protection order is meant not only to prohibit the accused from committing any act of domestic violence, it can also stop him from entering the place of employment of the aggrieved person, or attempting to communicate with her in any form. In addition, the magistrate can also pass a “residence order” under Section 19 inter alia directing the accused to remove himself from the shared household and restraining him or any of his relatives from entering any portion of the shared household in which the aggrieved person resides.
Most importantly, Section 32 declares that a breach of the protection order is a cognisable and non-bailable offence which the magistrate may conclude to have been committed by the accused on the “sole testimony of the aggrieved person.”
Indeed as per Section 4, “any person” who has reason to believe that an act of domestic violence has been, or is likely to be, committed can give information about it to the Protection Officer concerned. No liability, civil or criminal, shall be incurred by that person for giving the information in good faith.
It is astonishing that those who want talaq-e-biddat, which can no longer be used to threaten a wife into submission, to be declared an act of “domestic violence” fail to realise that innocent men could be forced to undergo the aforementioned humiliating punishments reserved for cognisable and non-bailable offences. Can any recommendation be more unjust and anti-therapeutic in nature?
But the most significant ground on which the triple talaq Bill fails the test of constitutionality is found in Article 21 which states that “no person shall be deprived of his life or personal liberty except according to procedure established by law.”
In Maneka Gandhi v. Union of India (1978), a seven-judge Constitution Bench ruled that fairness is implicit in the phrase “procedure established by law” and therefore, the procedure should be “fair, just and reasonable, not fanciful, oppressive or arbitrary”; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. The court also clarified that “law” means reasonable law, not any enacted piece.
Endorsing this view, the Supreme Court, in Justice K.S. Puttaswamy v. Union of India (2017), said that “a law which provides for a deprivation of life or personal liberty under Article 21 must lay down not just any procedure but a procedure which is fair, just and reasonable” and that “the validity of a law which infringes the fundamental rights has to be tested not with reference to the object of state action but on the basis of its effect on the guarantees of freedom.”
Earlier, the same was emphasised in stronger words by Justice V. Krishna Iyer in Sunil Batra v. Delhi Administration (1978): “True our Constitution has no ‘due process’ clause or the VIII Amendment; but, in this branch of law, after Cooper and Maneka Gandhi the consequence is the same. For what is punitively outrageous, scandalizingly unusual or cruel and rehabilitatively counterproductive, is unarguably unreasonable and arbitrary and is shot down by Art. 14 and 19, and if inflicted with procedural unfairness, falls foul of Art. 21.”
Seen in the light of these categorical pronouncements, the procedure imposing penal imprisonment for talaq-e-biddat in the proposed Bill is not just unfair and unreasonable but is also, to paraphrase a view of the U.S. Supreme Court (quoted in Law, Hermeneutics and Rhetoric by Francis J. Mootz III), so totally without penological justification that it would result in the gratuitous infliction of suffering on a person for doing nothing more than utter words rendered harmless by the Supreme Court.
This unwarranted punitive deprivation of personal liberty also runs afoul of Article 19, especially clauses 19(1)d and 19(1)g which allow all citizens “to move freely throughout the territory of India” and “practise any profession, or to carry on any occupation, trade or business.” Thus, if a man is unjustifiably jailed under the proposed law even for a few weeks, he will be denied of these rights for that period, to say nothing about the dim prospects of securing a job after the stigmatising confinement.
Given these procedural and legal infirmities, the chances of the triple talaq Bill being judicially challenged when it becomes law are high. This apart, the Centre has completely ignored the fact that the passage of the Bill in the LokSabha has unwittingly pushed Muslim women towards the All India Muslim Personal Law Board if one were to go by the recent massive demonstrations against it across India.
The only way to remedy the situation is for the government to withdraw the Bill.
(The Hindu)

 

 
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Opinion

Easter Sunday Massacre in Sri Lanka

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By Lukman Harees

What happened in Sri Lanka on this black Easter Sunday, in a series of well-orchestrated and coordinated terror attacks on churches and other locations, is an unforgivable and brutal tragedy of catastrophic proportions. A deadly wave of suicide bombings ripped through many churches and few leading hotels in the capital Colombo, as well as in many other parts of the country, making, an otherwise serene, ‘Easter Sunday’ the darkest day in recent history. At least 290 people were reported killed, with 500 injured in this dastardly terror attack. The spate of senseless killings and terror attacks on innocent civilians, on a day when Christians were engaged in reflection and prayer, deserves severe condemnation by people of all faiths, which brought back ugly memories of the bloody chapter of an inhumane war which engulfed Sri Lanka for over three decades in its recent history. It is the height of depravity to target worshippers on their holiest days, proving that terrorists have no race or religion, and that perpetrators of these terror attacks speak for no one but themselves.

The Easter Sunday massacre was certainly a shocking tragedy. Sri Lanka appears to be heading towards another chapter of terror and violence after a period of relative peace and calmness since the end of a bloody war in 2009. However, what causes much concern and fear is that the potency of terror lies not in the act but in the aftermath. The act is death and destruction, horrendous in itself. The response is what gives it political traction. All that the terrorists want is the oxygen of publicity and for the nation to go berserk, declare emergencies, tear up freedoms, and organise attacks on the people at the grass-root levels who have nothing to do with the massacre, thus, creating mayhem in the already wounded nation by the scars of war. By capitulating to these desires, the country would vastly increase the power of terror – and the likelihood of imitation.

 

The government has imposed a state of emergency and a curfew to maintain law and order, as well as to prevent communal tensions, as there are fears that the Easter Sunday bombings could spark fresh sectarian violence. The state of emergency will grant police and the military extensive powers to detain and interrogate without court orders and was in force at various times during the civil war that raged from 1983 to 2009. As well as this, there are bans placed upon social media to prevent any dissemination of conspiracy theories and misinformation. Still, the government and intelligence services are being blamed for ignoring many prior warnings regarding preparations for an operation of this magnitude. One of the local militant groups immediately accused of orchestrating the massacre was National ThowheedJama’ath (NTJ), which was reportedly warned of by local Muslims, according to a top Sri Lankan police officer.

However, the more worrying aspect is rather the very nature, patterns, timing, planning, and execution of these despicable attacks. They clearly show tell-tale signs of a greater machination at work beyond mere cat’s paw involvement, aimed at creating further mayhem and disharmony among people who are recovering from the wounds of war and post-war communal violence. There are many factors which cause concern: the fact that many churches and members of one religious group were targeted; the manner in which the attacks had been orchestrated simultaneously across Sri Lanka (the level of ‘sophistication’ of which was not seen even in the days of the ruthless Tamil Tigers); and the targeting of leading tourist hotels in the capital. They bear the hallmarks of expertise and professionalism, perhaps with international affiliations and a vested political and economic agenda, rather than the work of ordinary lone wolves, psychopaths, or a small hate group; which raises much suspicion about the possibilities of many ‘outside’ interests.

‘Terrorism’ is far from a new phenomenon – neither in Sri Lanka nor elsewhere in the world. ‘Terrorism’ is nothing but the random murder of defenceless non-combatants, with the intent of instilling fear of mortal danger amidst a civilian population as a strategy designed to advance political ends. A philosopher Ted Honderich, in his controversial book ‘After the Terror’, says, “their (victims) deaths were not the first intention of their killers, but necessary in the carrying out of another intention, a justified one. Their very first intention may indeed be, achieving their political ends.” Thus, there is no doubt that terrorism, as Honderich suggests, is a subset of politically motivated violence that falls short of conventional war, and is both internationally illegal and, to say the least, morally questionable. It is, therefore, not possible to discount the possibility of political scheming too in carrying out this despicable Easter Sunday massacre, in order to gain narrow political ends and stay in power, especially when talks of another round of elections are in the air.

In the backdrop of these untoward developments, Muslims of Sri Lanka, who have also been regular victims of terror in the post-war period, are now in a renewed state of fear and insecurity. With media sensationalism playing both locally and globally—borrowing ideas from a powerful Islamophobia industry—the emerging situation shows signs of a social volcano waiting to erupt. It is too early to find out the intricate details of what led to this shameful chapter in the history of this Island, the Pearl of the Indian Ocean. However, in this confusing scenario, the peaceful mainstream Muslims now wake up to the reality that it is imperative, even belatedly, that they stand up to and confront the evil of a small fringe group amongst them. For the moment, both Muslims in Sri Lanka, as well as Muslim diaspora groups worldwide, are expressing their solidarity and offering support with their grieving Christian neighbours and other victims of this tragedy. This is undoubtedly the most challenging chapter in Sri Lanka’s recent history, and there is now an increase of public activism Sri Lanka, which asks the country’s political and religious leaders to follow the example of New Zealand Prime Minster Arden, whose calmness, compassion, and tough leadership style were praised by observers in the wake of the worst mass killing in her country’s modern history.Something must also be said about the stark contrast between the global reaction to the destruction of symbols of European Christianity in the form of the Notre Dame fire and the destruction of non-European dark-skinned Christian bodies and lives. Let this be food for thought.

Sri Lanka will have to figure out how to move forward so that events like this one do not recur. Things like ‘terrorism’ are complex issues of our time, and as other countries around the world have seen, they lack clear solutions: gun bans do not end violence; cracking down on social media does little to deter racism or hatred, and stigmatisation and demonising communities do not work. On the contrary, it is a concerted plan of action and public activism, across racial or religious divides that is needed. They will do the right things: avoid emotional outbursts, ensure people are alert to the evil elements amongst them, expose this evil, and forge unity among people to confront it, all whilst ensuring common values of humanity are protected at all costs. For the mainstream Muslims of Sri Lanka showing solidarity and resoluteness in healing the scars of the wounded nation, the foremost challenge is to project the real message of Islam in the public domain, confronting false propaganda media narratives from the clutches of radical and ‘extremist’ elements. As MuizBukhary, a well-known Sri Lankan scholar, says: “we need to work hard to put things right”.

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Opinion

Faith and Enlightenment Should Go Hand In Hand

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By Zafar Aziz Chaudhry

In the early part of this month, during my sojourn to the Holy Land, the question which perplexed me most was whether there was a real connection between enlightenment and faith, and whether in their genesis these two are all-embracing or mutually exclusive. My deep reflections on various texts of the Holy Quran, and some references gathered from history did reaffirm my belief that they are mutually inclusive and do not conflict with each other. In fact for the future survival of Muslim nations with grace and dignity in competition with the rest of the world, it should be clearly understood that there is no schism between these two concepts. Rather an enlightened world-view is likely to rub off the accumulated centuries-old rust on the other-wise pristine fabric of Islam.

The European intellectual movement of the late 17th and 18th centuries emphasized reason and individualism rather than tradition. It was heavily influenced by philosophers such as Descartes, Locke, and Newton, and its prominent figures included Kant, Goethe, Voltaire, Rousseau, and Adam Smith. It was a revolt against Man’s self-imposed tendency not to use his own understanding and only to follow tradition. It stressed reason, logic, criticism, and freedom of thought over dogma, blind faith, and superstition. In a broader sense, Enlightenment applied scientific reasoning to politics, science, and religion. Its followers were typically humanists who supported equality and human dignity, and it is wrong to suppose that enlightenment is in any manner opposed to religion. On the other hand, it acts as a bulwark against superstition, intolerance, and bigotry which have brought bad name to religions.

 

Despite their different approaches, science and religion are also complementary. It is said that science can help you diagnose and treat your cancer, but it cannot touch the despair and dismay and terror you feel when you get the diagnosis, nor can it help you to die well. For that people turn to religion, which answers the deeper questions of our human predicament.

The survival of religion in the 21st century, according to Karen Armstrong, largely depends on its capacity to create compassion for the fellow human beings which is the ultimate object of religion.

But unfortunately religion is mostly misunderstood in our time due to our inability to take historical perspective of the social, cultural, intellectual, and emotional settings that shaped people’s lives and actions in the past. Such an understanding which is often termed as “historical empathy” helps us to understand the vast differences between us in the present and those in the past. Compassion also teaches us to transcend our limited world-view and place ourselves in the cultural and social environments of the past.

The Holy Prophet by his conduct and precepts has been admittedly one of the greatest and most influential personages in history and we Muslims believe that the Holy Quran, his revealed message to humanity, is a marvel of wisdom for the mankind. But the fate of Muslims everywhere is most pathetic, the responsibility for which can be traced in Islamic history.

The first shock after the death of the Holy Prophet on the question of his succession resulted in the tragic split between the Sunnies and Shias which also in due course divided the Islamic countries into two blocks.. The next significant setback which reversed the Islamic clock occurred during the Abbasid period when philosophers like al-Ghazali (1058-1111 AD) fiercely opposed the Mu’tazilites practice of subjecting Islamic theology to rationalism which led the Abbasids to ban the Mu’tazilites. Islam’s vitality and appeal was gravely affected by the resurgence of literalist interpretations of Sharia (that treats man-made laws as divine) and the worsening of sectarian cleavages within Islam which has set in motion a perpetual cycle of violence that directly endangers the lives of ordinary Muslims everywhere.

Within a century of Holy Prophet’s death his followers had built an empire that stretched from Spanish Europe to Central Asia. The Rashidin caliphate can be credited for military expansion, but It was not until the Umayyad Dynasty-from 661 to 750-that Islamic and Arabic culture began to truly spread. The Abbasid Dynasty-from 750 to 1258-intensified and solidified these cultural changes.

The Golden period of knowledge in Islam began during the reign of the Abbasid caliph Harun al-Rashid (786 to 809) when he invited scholars from various parts of the world with different cultural backgrounds and mandated them to gather and translate all of the world’s classical knowledge into the Arabic language. This resulted into an astonishing growth of philosophers and scientists such as IbneRushd (translated Aristotle, and wrote books on Islamic jurisprudence) Al-Kindi (discovered rules of astronomy and optics) Khwarizmi (Father of Algebra and mathematics) IbneSina (Father of Medicine, astronomy and Logic) who ushered in a golden era of knowledge.

Ironically the dark age of Europe coincided with golden age of Islam. But it was the most tragic turn in the history of Islam that the fruits of hard labours of these philosophers and scientists could not reach the Islamic society because of the opposition to rational thought by the jurists and clergymen of the day and lack of wisdom and vision of their rulers who opposed a rational underpinning of Islam – analogous to St. Thomas Aquinas who lent rationality to Christianity in the Middle Ages. The theologians like Al-Ghazali and IbneTaimiyya refused to accept scientific change and discoveries and forced the Khalifa to ban Mu’tazilites who were advocates of rational thought. It was contrary to the teachings of the Quran and precepts of the Holy Prophet who had made no such restrictions on the acquisition of knowledge. According to the saying of the Prophet, Muslims were to seek knowledge even if they had to go to China.

The Islamic state also failed to patronize these polymaths by refusing them enough funds for their research etc under fear of reaction from the reactionary forces. But most importantly, contrary to the injunctions of the Holy Quran, the local jurists divided the concept of knowledge into two broad and disjunctive categories as “Ilm Ad-Din” (= religious knowledge) and “Ilm Ad-Dunya” (= worldly knowledge). Neither in the Quran nor in the authentic books of Hadith was there any such division allowed in the acquisition of knowledge. Islamic sources declare knowledge as an indivisible whole.

The Golden period of spread of knowledge ended with the collapse of the Abbasid caliphate due to Mongol invasions and the Siege of Baghdad in 1258 AD.

Even during the Ottoman Empire, nothing was done for promotion and development of science and technology, perhaps because the Emperors thought that it would be a threat to the opulence of the monarchs. On the other hand, a blunder was done through a wretched Fatwa, which banned the printing press in the Empire which remained in force for over 200 years. This left Islamic world in the dark when West sailed away with renaissance and enlightenment.

Thus there are enough grounds to believe that for the survival of Islamic civilization, faith and enlightenment should go hand in hand.

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Opinion

Losing Hope in God’s Mercy

The Kashmir Monitor

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By Ejaz Naqvi

Ever since I was a child, I used to hear the sermons trying to instill the ‘fear of God’ in me, whereby the Imams will warn us to be straight or else! Decades later, as I started to study the Qur’an myself, the kind and forgiving nature of God became so apparent making me wonder why the focus of the clerics was so much on the wrath of God.

I would hear multiple times ‘the correct way’ to greet, the correct way to bathe, the correct way to step into the bathroom, the correct way to enter the mosque, the correct way to offer Salat and fast and so on. If I didn’t, I was risking having all my good deeds deleted. If I erred a little, I would face the anger of God. The “right path” was so narrow that it would be impossible not to stumble and fall out of the mercy of God.

 

It is true that the Qur’an is full of warnings for the wrongdoers. But it is also full of the good news. In fact the prophets, including Prophet Muhammad, are often referred to as Basheer (bearer of good news) and Nazeer (the warners). For some reason, the clerics got stuck mostly on the Nazeer part.

Growing up, I thought I would never ever be able to make it and be on the good side of the Lord. No matter how hard I worked, if I stumbled a little, all my good deeds would be washed away. It was as if God had his finger on the ‘delete’ button and ever so ready to use it. The truth is that He does have his finger on the ‘delete button’, but it is our sins and wrong actions that He is so willing to delete!

To be perfectly honest, I still don’t know if ‘I made it’. Only God knows that. Only God is the Judge.

However, I am actually much more hopeful of God’s mercy. I realize the most commonly repeated attributes of God in the Qur’an are Rehmaan (the Most Gracious) and Raheem (the Most Merciful).

And in terms of God deleting the good deeds, the fact is that the Qur’an is full of passages on God’s Mercy and His Forgiveness. This verse says it all.

Say: “O my Servants who have transgressed against their souls! Despair not of the Mercy of Allah: for Allah forgives all sins: for He is Oft-Forgiving, Most Merciful. 39:53

We tend to forget that in Islam, one of the biggest sins is to lose hope in God’s mercy! The exegetist differs in their opinion if this verse was revealed in reference to a particular group of Muslims or a larger group or the entire humanity. Many do believe it is addressed to all ‘servants’ and all humans are considered His servants.

And whoever does evil or acts unjustly to his soul, then ask forgiveness of Allah, he shall find Allah Forgiving, Merciful. 4:110

There are other passages that clearly state that everyone will be rewarded for even an atom’s worth of good deed.

‘Acting unjustly to his own soul’ or ‘transgressed against their souls’ refers to the fact that if we do wrong, we only hurt ourselves.

One way I look at the Qur’an is that it gives us plenty of information and education on the consequences of breaking the law, as well as obeying the law.

I realize the Day of Judgment is also called the Day of Reckoning (Yaum e Hissab), so I am accountable for my actions (and inactions). It is also very true that the Qur’an’s description of the punishment for the wrongdoers and deniers of God’s signs is rather graphic but its description of the reward and mercy for those who believe AND do good work is also repetitive and I would argue more prevalent. The Qur’an acknowledges that humans are not angels and that we are prone to sin, and therefore calls for us to repent and ask for forgiveness. The greatest sin in Islam is considered to be associating partners with God. That sin cannot be forgiven, except when one repents.

Surely God does not forgive that anything should be associated with Him, and forgives what is besides that to whomsoever He pleases; and whoever associates anything with God, he devises indeed a great sin. 4:48

Many of the ’99 Names of God’ refer to His forgiveness.

Al-Wadud: The Loving One
Al-Ghaffar: The Forgiving
Al-Ghafur: The Forgiver and the Hider of Faults
Al-Afu: The Forgiver- this refers to forgiving as in ‘rubbing off’ or in deletion of sins as if they never occurred!

Al-Rau’f: The Clement (Lenient)/Kind

Like the Qur’an, the Old Testament is also sometimes viewed as a bearer of a wrathful God, ready to set everything ablaze. But it too makes many references to God’s forgiveness and mercy.

Then the Lord passed by in front of him and proclaimed, “The Lord, the Lord God, compassionate and gracious, slow to anger, and abounding in loving kindness and truth; who keeps loving kindness for thousands, who forgives iniquity, transgression and sin; yet He will by no means leave the guilty unpunished, visiting the iniquity of fathers on the children and on the grandchildren to the third and fourth generations.” Exodus 34:6-7

Similarly the Gospels make references to forgiveness on numerous occasions- even more so then the Old Testament. Salvation and forgiveness are integral part of Christianity. The Gospels add another element- to forgive each other so God can forgive us- something that is part of the revered ‘Lord’s prayer’ as taught in Matthew 6:9-13 and Luke 11:2-4

….and forgive us our sins, as we forgive those who sin against us. Luke 11:4 and Matthew 6:12

Of course I don’t want to ‘take advantage’ of Lord’s forgiveness and continue to wrong myself. But I do realize we are all humans and that I will err. When I do, I will never lose hope in his immense mercy and His forgiveness. That’s the biggest hope out there no matter what they say!

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