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The Muslim Women (Protection of Rights on Marriage) Bill was passed by the Lok Sabha last week. The bill which is commonly known as the Triple Talaq Bill criminalises the practice of divorce by uttering 'Talaq' thrice in the Muslim community. The bill has come in for criticism from various quarters. The authors take a closer look at it in this Business Standard Special and explain where it falls short.
The British Parliamentarian Edmund Burke once wrote "Bad laws are the worst sort of tyranny." The Muslim Women (Protection Of Rights On Marriage) Bill, 2017 exemplifies that kind of tyranny. It provides no useful protection to the wife, it Criminalises the husband and it provides legal sanction to sundry mischief makers, to interfere in Muslim marriages, in the same way that Cow Slaughter legislation, provides legal cover to Lynching by Vigilante cow lovers. Provisions of the Bill The statement of objects and reasons of the Muslim Women (Protection Of Rights On Marriage) Bill, 2017 (“Bill”) states that – “setting aside talaq-e-biddat by the Supreme Court has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims[…..] there is a need for State action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce.” There is no evidence that has been tabled in support of this assertion. There is no data to show that any significant number of Muslim men have resorted to talaq-e-biddat (instantaneous triple talaq) after the Supreme Court set it aside in August. After the Court’s judgment in Shayara Bano v Union of India and Ors, such a pronouncement has no legal effect in India. The marriage continues to exist despite the pronouncement. Now under Section 4, of the new bill, a man can be punished with imprisonment for upto three years if he is found to have pronounced instantaneous triple talaq. Thus in effect, though there is no divorce, in the eyes of the law, the mere accusation that the man has uttered a blasphemous divorce, is enough to condemn him to three years of imprisonment . Section 7 of the bill which makes triple talaq a cognizable and non-bailable offence. This means that the wife does not need to complain of the pronouncement of triple talaq by her husband. Rather, the police have powers to arrest a muslim man on the accusation of triple talaq, based on information received from anyone at all. This could lead to disastrous consequences. We have already seen mobs enter Mohammad Akhlaq’s home and murder him on the suspicion of storing beef in his fridge. Hindutva activists tried to stop an inter-faith marriage in Ghaziabad only this week. It is not difficult to envisage “Nikah- Suraksha Senas” waiting outside (quarrelling) muslim households, ready to file complaints, and jail the husband irrespective of the wife’s wishes. Given the fractious nature of Islamic schisms in the sub-continent, it is not difficult to foresee Deobandis fishing outside Barelvi households, Shias against Sunnis and everyone else against the Ahmadiyas. Practical considerations aside, a legal analysis of the bill will yield, at best a misunderstanding of fundamental principles of law. Not everything unconstitutional is illegal. Not everything illegal has to be criminalised, with long jail terms. For example, caste segregated dining in certain Hindu temples, is arguably unconstitutional and could conceivably be held so by a constitutional court. Now imagine a majority government of the oppressed classes, making it a criminal offence with jail time, for anyone accused of dining in a caste segregated place. That is the quality of intrusion into social and religious life which this bill has achieved. Passage through Lok Sabha This legislation it is an instance of the Government falsely invoking a Supreme Court judgment, to pass a politically convenient legislation that has no ostensible practical value. Not surprisingly, the bill was passed without any amendments in the Lok Sabha. One must however note that the bill was listed only to be ‘introduced’ in the Lok Sabha on Thursday. The law minister requested that it be listed for passing, at around 1 PM. The request was allowed by the Speaker, virtually allowing the Government to ‘bull-doze’ the bill through the house. Political expediency meant that the bill was passed with little opposition. The government, admittedly, did not consult any stakeholders or any of the Muslim women’s groups which had led the fight against triple talaq before the Supreme Court. Some of these groups have now come out in protest against the bill. During the (limited) debate in Parliament, the government side made repeated references to the ‘plight of muslim women’. Bear in mind that this is the same government that has told the Delhi High Court that criminalising marital rape would destabilize the institution of the marriage. The Muslim Women (Protection Of Rights On Marriage) Bill, 2017 is thus another instance of incompetent law-making and breath-taking hypocrisy that has come to be par for the course with the present government. It only seeks to add to the set of laws that Muslim families, specially married men can be harassed with. If this bill is passed by the Rajya Sabha and becomes an Act of Parliament, it is likely to face very strict scrutiny by the courts. Manifestly Arbitrary Firstly, the triple talaq bill is liable to be struck down on the same ground that the practice of instantaneous triple talaq was set aside. In the Triple Talaq case itself, Justice Nariman (with Justice Lalit concurring), set aside the practice of Triple Talaq as sanctioned by the Shariat Act, on the ground of “manifest arbitrariness” of the legislation .
The great achievement of the judgment is that in addition to lack of legislative competence and violations of fundamental rights, now legislation can be struck down on arbitrariness alone. Following up on this doctrine, the Supreme Court in Nikesh Tarachand Shah has struck down Section 45 of the Prevention of Money Laundering Act for being manifestly arbitrary. Section 4 of the Triple Talaq Bill seems to suffer from the same vice., It is manifestly arbitrary when it seeks to criminalise an act which is void, that is - it does not have the legal effect of divorce.Disproportionate It could also be argued that the criminalisation of divorce is not proportional to the ends the State seeks to achieve, if indeed there is any end at all. As already stated, the pronouncement of talaq-e-biddat has no consequence– the parties continue to be married. In effect, the Bill seeks to criminalise the utterance of the word ‘talaq’ thrice. An imprisonment of upto three years for the same is patently unjust and goes against all canons of criminal jurisprudence. The constitutionally accepted principle of proportionality in punishment is given a go by. No State interest in criminalisation Family Law and Criminal Law operate in different fields. Criminal law creates a system of regulation that is enforced by the threat of sanction. Family law involves the private sphere-the home and family. Criminal law is seen as punitive and coercive. Family law on the other hand, is ameliorative and attentive to the well-being of individuals. The two only interact when there is compelling state interest involved, for eg. domestic violence, or other cases where physical injury may be caused. The Indian experience with the interaction between these two fields has been an unhappy one. Feminist scholars argue that penal provisions have failed to address the issues faced by women on a day to day basis. On the other hand, the Supreme Court itself has taken note of the misuse of provisions like S. 498A (marital cruelty) of the Indian Penal Code. Criminal law is repressive by nature. Former Chief Justice RM Lodha had once said that in India, the criminal trial process itself is the punishment. Without going into the merits of either position, it is hard to see any state interest involved in the criminalisation of instantaneous triple talaq. Criminalisation is employed where other means (e.g., civil litigation, administrative solutions, non-criminal sanctions, etc.) fail. Professor Faizan Mustafa has already pointed out that; criminalisation is called the “ultima ratio” of legislative policy. Thus, an act is declared to be a criminal offence, only as a last resort - as an “uttermost means in uttermost cases.” It is hard to see how the Bill meets these requirements. There is no official data to show that the setting aside of Triple Talaq has not ended its usage. Some reports quote unnamed sources to declare that there have been 60 odd pronouncements of triple talaq following the Judgment. The Law Minister in Parliament stated that over 100 pronouncements have been made. But he tends to forget that those 100 utterances have no legal effect. Thus, even if true, mere pronouncements are no ground to introduce a penal statute with harsh consequences. Criminalisation will prevent reconciliation It is interesting to note that in Shayara Bano, both Justice Joseph and Justice Nariman declared instantaneous triple talaq to be bad because it did not provide for an attempt at reconciliation. The judgment, put efforts to reconcile at the heart of the divorce process. Such efforts are rendered improbable, if not impossible by the Triple Talaq Bill. One cannot envisage a situation where a man will continue a marriage after having served a prison term, for his attempt to end the relationship in the first place. In effect, the bill only serves to weaken the marital institution, which the Supreme Court had sought to protect. Conclusion The government has by this legislation, fired a cannon to kill a fly. The fly may escape and continue to buzz around, but the cannonball can bring down an entire household. We can only hope that the elder statesmen in the Rajya Sabha, need the caution and ensure that the legislative blunderbuss is not allowed to damage the body politic. This government however, has repeatedly shown, that it is more enamoured of the cannon of power and cares little about the damage caused by firing it. Afterall power does flow, from the barrel of a gun.
The authors are lawyers who practise in the Supreme Court. They tweet as @sanjayuvacha & @parahoot