[op-ed snap] A case of unprincipled criminalization

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Mains Paper 2: Governance | Welfare schemes for vulnerable sections of the population by the Centre and States and the performance of these scheme

From UPSC perspective, the following things are important:

Prelims level: Ordinance Making Power of President, Bail Provisions of the ordinance

Mains level: Triple Talaq and issues related to it. Uniform civil code debate.


Context

The content of the Muslim Women (Protection of Rights on Marriage) Bill, 2018 (Triple Talaq Bill) clearly reflects a sectarian overtone that even attempted to mislead the public by distorting the Supreme Court judgment in Shayara Bano’s case (2017).

Background

Key provisions of the Bill:

The Bill makes all declaration of Talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.

1.Definition: It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce.  Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.

2.Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine.  (A cognizable offence is one for which a police officer may arrest an accused person without warrant.)  The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.

3.The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.

4.The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute.  The terms and conditions of the compounding of the offence will be determined by the Magistrate.

5.Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children.  The amount of the allowance will be determined by the Magistrate.

6.Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.

Significance:

  1. Time has come to put an end to the suffering of Muslim women who have been at the receiving end of instant talaq for several years. More than 20 Islamic countries have already banned the practice.

Criticism-

The Bill is a classic case of an unfair and deceptive legislative move with a populist agenda, which in a country like India should call for a novel and effective judicial scrutiny.

  • First of all, in the emblematic judgment in Shayara Bano the majority on the Bench had invalidated the practice by terming it as unconstitutional.
  1. However,the Bill proposes to criminalise an act which is non est in the eye of the law.
  2. The disproportionate punishment of imprisonment for three years for a civil wrong without even a civil consequence due to the Supreme Court’s judgment is antithetical to the very idea of principled criminalisation.
  3. Paradoxically, it was in 2018 that the top court has ostensibly developed this concept by way of the verdicts on homosexuality (Navtej Singh Johar v Union of India) and adultery (Joseph Shine v. Union of India).
  • Second, the majority verdict in Shayara Bano did not direct the government or Parliament to criminalise triple talaq or “to give effect to the order”, as implied in the Bill.
  1. There was no need to do so either, as the judgment got effectuated on its own. The judgment had no intention to create any deterrent, since the very act of triple talaq is void ab initio, according to the Supreme Court.
  2. The Bill thus tries to distort the intent and content of what the court said in Shayara Bano case.
  3. The Bill assumes validity for an action which the court invalidated, and as such the very thematic premise for the Bill is artificial, erroneous and even contemptuous.
  4. The settled legal principle in India that no ill motive could be attributed to legislation would require a revisit, when politics overweighs constitutionalism.
  • Third, criminalisation of triple talaq, can only motivates to resort to other methods of divorce which do not fall within the ambit of the Bill or to simply desert his wife.
  1. Thus the Bill does not serve the Muslim woman’s interest.

Conclusion

  1. By trying to segregate a particular mode of divorce in a particular community and to punish the men of that community alone, the Centre is trying to shatter two fundamental tenets of the Indian Constitution — equality in the eye of the law and secularism.
Women Safety Issues – Marital Rape, Domestic Violence, Swadhar, Nirbhaya Fund, etc.
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