[Editorial Analysis] A case of unprincipled criminalisation

Mains Paper 2: Polity

Prelims level: Muslim Women (Protection of Rights on Marriage) Bill

Mains level: Uniform Civil Code

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).

• In the ‘statement of objects and reasons’ attached to the Bill, Union Law Minister Ravi Shankar Prasad said that in spite of the Supreme Court setting aside the practice of talaq-e-biddat in Shayara Bano, there have been reports of divorce by way of such means.

• He described the Bill as an instance of “state action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce”.

• He also lamented that the Supreme Court verdict “has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims”.

Disproportionate punishment

• 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.

• The simple and plain effect of the verdict is that the pronouncement of triple talaq is a nullity having no legal effect at all on a subsisting marriage, and despite the husband’s gesture, the matrimonial bond would remain intact, without being dissolved, in the eye of the law.

• Therefore, the Bill proposes to criminalise an act which is non-est in the eye of the law.

• 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.

• 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).

• 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.

• 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.

• The Bill thus tries to distort the intent and content of what the court said in Shayara Bano.

• An analogy between criminalisation of dowry and triple talaq does not make sense.

• In the case of dowry, transaction is a reality, whereas in triple talaq, after the top court holding that it is a nullity, there is no act at all in the legal sense to constitute an offence.

• The Bill thus 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.

• The settled legal principle in India that no ill motive could be attributed to legislation would require a revisit, when politics overweighs constitutionalism.

• The criminalisation of triple talaq, can only motivate a “clever” husband to resort to other methods of divorce which do not fall within the ambit of the Bill or to simply desert his wife.

• Thus the Bill does not serve the Muslim woman’s interest.

Conclusion

• 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.

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Prelims Questions:

Q.1) Consider the following statements with respect to INF Treaty:

A. It is an agreement between the US and USSR.

B. Under the Treaty, the U.S. and the U.S.S.R. agreed to eliminate within three years all ground- launched-missiles of 500-5,500 km range.
Choose the correct option:

A. A only

B. B only

C. Both A and B

D. Neither A nor B

Correct Answer: C

Mains Questions:

Q.1) The triple talaq Bill is a classic case of an unfair legislative move with a populist agenda. Critically examine the statement.

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