Skip to main content

THE POLITICS OF TRIPLE TALAQ

By Varun Hari Prasad

Yesterday (i.e. 19 September), the Union Cabinet cleared the Muslim Women (Protection of Rights of Marriage) Ordinance 2018 which criminalises instant triple talaq. The ordinance was subsequently signed by the President. This Ordinance is a farce, a violation of certain principles of jurisprudence and most importantly it sets a dangerous precedent in legislation process. Let us look at each of these issues in detail.

The Ordinance route

The power to promulgate an Ordinance is an extraordinary power vested with the executive. Through the instrument of Ordinances, the government can make laws to meet urgent needs during a time when Parliament is not in session. However, such Ordinances have to be approved by Parliament within six weeks of the next session of the Parliament.

On 23 July 2017, then President Shri Pranab Mukherjee, while addressing the Parliament made an observation regarding Ordinances which is as follows:

“I am firm in the opinion that the Ordinance route should be used only in compelling circumstances and there should be no recourse to Ordinances on monetary matters. Ordinance route should not be taken on matters which are being considered or have been introduced in the House or a committee of the House. If a matter is deemed urgent, the concerned committee should be made aware of the situation and should be mandated to present its report within the stipulated time.”

The President, in this observation has made two things clear:
                 a)    Ordinance route must be used only in compelling circumstances and
            b)    Ordinance route should not be taken on matters that have been introduced or on matters that are under the consideration of Parliament.

In case of this particular Ordinance, it is beyond my understanding as to what was the compelling circumstance due to which the government had no other way but to promulgate an Ordinance. The Law Minister certainly did not offer any reason, which atleast to my limited knowledge, qualified as a ‘compelling circumstance’. Ofcourse, there is a political reason. The Modi government is on the backfoot due to issues such as rising fuel prices, grappling economy, alleged irregularities in the Rafale deal, amongst a host of others. Therefore in their opinion, reverting to their favourite subject – religion, can help in diverting attention from these issues for a while. Apart from this, there is no other ‘overpowering urgency’ the government can have to bring this Ordinance.

The second and more important point, which the then President had made in his observation is that there should no Ordinance on matters which are under the consideration of Parliament. This bill after being passed by the Lok Sabha, is under the consideration of the Rajya Sabha. If there was an ‘overpowering urgency’, why didn’t the Government list the bill on priority in the previous session? There is only one reason: they are well aware that the numbers are against them in the Rajya Sabha and the bill in its current form will not be approved there. Another obvious thing is that they have no regard for the Rajya Sabha and have always tried to bypass it.

The farce

This Ordinance is nothing but a legal farce. Instant Triple Talaq became void on 22 August 2017 itself when the Constitution Bench of Supreme Court (in a 3:2 majority) declared that the practice was inconsistent with the Constitution. This government has now given rebirth to Triple Talaq and has then declared it a crime! The reason cited by the Law Minister is the judgement of the then Chief Justice J S Khehar that it was for the Parliament to decide on the matter. Being a Lawyer himself, Mr Ravi Shankar Prasad seems to forget that the Chief Justice’s judgement is not in operation as it was a minority view! The prevailing judgement is that instant Triple Talaq is inconsistent with the Constitution and is liable to declared void. There was no need of Legislation at all.

Having said that let me come to the provisions of the Law. The Ordinance provides for a ‘Subsistence Allowance’ but fails to define it nor quantify it! There is no clarity on whether the Subsistence Allowance’ will replace the ‘Maintenance’ granted under the 1986 Act, or will it be deducted from the ‘Maintenance’ or whether it will be over and above the ‘Maintenance’. To add to the woes, they have not even specified how the Allowance would be computed and have left to the Magistrate. This means there will be no uniformity in its implementation. And most importantly, if the husband is in jail, who will pay the allowance to the wife? Will Mr Modi pay?

Another important aspect is that the onus of proving that the husband has indeed pronounced Triple Talaq lies with the wife. If the wife fails to prove the same, the husband will be given the benefit of doubt. Matters related to marriage are not something which happen out in the open, these are stuff that take place within the house. How will a woman prove to the court beyond reasonable doubt that her husband pronounced Triple Talaq? It is not possible in overwhelming majority of the cases. If a layman like me can be aware of this being a lawyer himself there is no way Mr Ravi Shankar Prasad could be unaware.

The dangerous precedent

Instant Triple Talaq is not divorce in itself, it is a form of abandonment. If a Muslim man deserves to go to jail for three years for abandoning his wife, should men of other religions be left alone? Aren’t Hindu women or women of other religions being abandoned by their husbands? Don’t those women also deserve to live with dignity? Therefore, it is best if marriage and divorce are kept out of the purview of Criminal Law.

If the Modi Government is really sincere about protecting the dignity of women it must bring a Law that protects the dignity of women of all religions. Selective actions like these is nothing but mere votebank politics. The people of India are clever enough to see through it.

Comments

Post a Comment

Popular posts from this blog

THE SABARIMALA JUDGEMENT: PROGRESSIVE OR OVER-BOARD? (Part 2)

By Varun Hari Prasad
  In the earlier part , I had provided a brief background to the case that was before the Court, the issues/questions that were placed before the Constitution Bench for its consideration, and the Judgement delivered by the Bench. In this part, let us explore those four questions and a few other aspects of the Judgement. Maintainability   Students of Law who are reading this blog might laugh at this point: how could maintainability be taken seriously in a PIL? Justice Indu Malhotra answers this question in her dissenting judgement:   (P. 7.2) “ The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages ...
Post a Comment
Read more

THE SABARIMALA JUDGEMENT: PROGRESSIVE OR OVER-BOARD? (Part 1)

By Varun Hari Prasad
  On 28 September 2018, a five judge Constitution Bench of the Supreme Court lifted the ban on entry of women between the age group of 10 to 50 years into the Sabarimala Temple in a 4:1 majority decision. While many have welcomed and celebrated the verdict, it has given rise to spontaneous protests across Kerala, some of which are being led by women themselves. This judgement is very important as it will be quoted extensively in other cases that are already before the Court or in ones that would come up before the Court in future. Therefore, it is important to examine this question: Was the judgement progressive or did the judges go over-board? The Background The case started with a Public Interest Litigation (PIL) filed in the Supreme Court by a registered association called Indian Young Lawyers Association. In their petition they challenged the Constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which restr...
Post a Comment
Read more

THE STATE OF EDUCATION IN INDIA [PART 2]

By Varun Hari Prasad
Last week, I had written about the cracks in our education policy. In this blog I wish to look at the possible policy actions that can plug these loopholes. Access The number of students enrolled in primary and secondary school is way below global average. Therefore the focus of the policy makers must be on increasing the Gross Enrolment Ratio (GER). The Right to Education Act, 2009 has done a great deal in making enrolment in primary schools nearly universal. The trends noticed thereafter suggest that the children tend to drop out when they reach high school. Therefore the best policy approach, atleast for the foreseeable future, would be to amend the Right to Education Act and expand its scope upto Class 12. A rights/entitlement based approach is the best way forward for now. Quality To enhance quality we have already embraced e-learning, however it is a well-known fact that internet penetration in our country is very low. To enhance the use of ICT in schools, the go...
Post a Comment
Read more

Agenda 2019: NYAY for Jammu & Kashmir

By Varun Hari Prasad
Four phases of the world’s biggest democratic exercise – elections to the 17 th Lok Sabha – have been completed. The ruling Bharatiya Janata Party led by Mr Narendra Modi are extensively banking on the National Security plank to get back to power for one more term. Mr Modi has been saying since the first day of campaign that he has used an ‘Iron Fist’ in dealing with Pakistan. He refers to the surgical strikes done by the Indian Air Force in Balakot as an example of his tough policy. Despite bringing National Security issues to the fore, he refuses to speak about one of the biggest security challenges: Jammu and Kashmir. In my previous essays: ‘ Pulwama Attack: Time to Raise a Few Questions & Explore the Reasons ’ and ‘ The Turmoil In India’s Paradise ’, I have written in detail about the current Government’s policy with respect to Pakistan and Jammu and Kashmir. In this essay I wish to share what I feel the new Government must do with regard to J&K. The Two Aspects...
Post a Comment
Read more

'One Nation One Election': Feasibility and Impact on Democracy

By Varun Hari Prasad
I write this essay in the backdrop of the High Level Committee (HLC) on One Nation One Election submitting its report to the President of India on 14 March 2024. At the very outset, it seems like as if the Union Government had made up its mind on what the outcome of HLC would be at the time of Constituting the HLC itself. To substantiate this, I would like to draw attention to the Gazette Notification issued on 02 September 2023. The Gazette Notification itself has concluded that “ elections are held almost every year and within a year too at different times, which result in massive expenditure by the Government and other stakeholders, diversion of security forces and other electoral officers engaged in such elections from their primary duties for significantly prolonged periods, disruption in developmental work on account of prolonged application of Model Code of Conduct, etc.; ”.   Therefore, I firmly believe that the HLC could not attempt a dispassionate analysis of the pros a...
2 comments
Read more

MODI-FICATION OF JAMMU AND KASHMIR: MASTERSTROKE OR MISADVENTURE?

By Varun Hari Prasad
On 5 August 2019, Home Minister Amit Shah announced in the Rajya Sabha that a Presidential Order would be issued to abrogate Article 370 of the Constitution of India, which provides special status to the state of Jammu and Kashmir. He further said that Jammu and Kashmir would be bifurcated into two Union Territories: UT of Jammu & Kashmir (with legislature) and UT of Ladak (without legislature). A resolution to this effect was passed by the Rajya Sabha on the same day. The Build-up Ahead of this announcement, the Union Government sent additional troops to the state to ‘maintain peace and order’ in wake of an ‘intelligence input’. They went to the extent of taking an unprecedented decision of suddenly cancelling the Amarnath Yatra. Mainstream political leaders like former Chief Ministers Omar Abdullah and Mehbooba Mufti were placed under house arrest, communication services were withdrawn and curfew was imposed (it continues even now). What is Article 370? Article...
Post a Comment
Read more

Pulwama Attack: Time to Raise a Few Questions & Explore the Reasons

By Varun Hari Prasad
On 14 February, in one of the worst attacks on security forces in Jammu and Kashmir, a suicide bomber of the Jaish-e-Mohammed (JeM) rammed a car full of explosives into a CRPF convoy killing over 40 personnel. The attack sent shockwaves across the country and people transcended all barriers to stand in solidarity with the security forces. In a rare sight, all political parties pledged support to the Government in any retaliatory action it would initiate. At a time when almost everyone had refrained from politicising the martyrdom of our soldiers, the ruling establishment at the Centre left no stone unturned to score brownie points. From Amit Shah to Sakshi Maharaj, the intention was clear, to stroke sentiments ahead of general elections. But now, I think it is time to shed restraint and ask a few questions. Intelligence Failure It is now known that the Jaish-e-Mohammed had issued a video threat 48 hours before the Pulwama attack. Why did the Government ignore that threat?...
Post a Comment
Read more

Bankruptcy of Ideas and Betrayal of Hope

By Varun Hari Prasad
Yesterday the Finance Minister Nirmala Sitharaman presented the Union Budget for 2025-26. It was her 8 th consecutive Budget and was presented amongst great expectations from the people. It was hoped that the NDA Government led by the Hon’ble Prime Minister Narendra Modi would come up with some concrete policies to help the country emerge from the current challenges it faces. The Economic Context The Union Budget was being presented at the backdrop of acute unemployment, rising inflation, rural distress, decline in manufacturing, stagnant incomes and declining savings. Data from the Centre for Monitoring Indian Economy (CMIE) shows that in 2022-23, youth unemployment was at 45.4% 1 . A study of the International Labour Organisation notes that graduates had an unemployment rate of 29.1% 2 . The Labour Force Participation Rate in rural areas increased from 24.6% in 2017-18 to 47.6% in 2023-24. While the increase in LFPR is good, we must not ignore that more women participation in ru...
1 comment
Read more

THE TURMOIL IN INDIA’S PARADISE

By Varun Hari Prasad
Having been to the wonderful state of Jammu & Kashmir (J&K) and seen its people, I am extremely saddened by the way in which things are shaping up in the paradise of India. Since July 2016, J&K has been simmering with anger and exasperation. This has not happened overnight, the lava was slowly but steadily building up and Burhan Wani’s encounter just provided the trigger. Despite the fact that one of our state is in turmoil for nearly two years now, we as citizens, as a Nation, do not seem to have sensed the gravity of the matter. Unfortunately, even the Government of India doesn’t seem to have comprehended the situation. Day in and Day out we watch people shouting on prime time TV shows that J&K is an integral part of India, we heard the Prime Minister roar in the Parliament by making an hypothetical reference to J&K earlier this year; Ofcourse Jammu & Kashmir is an integral part of India! But are we as a Nation, as a society, awake and aware of the pain...
Post a Comment
Read more