The triple talaq bill is a distortion of the essence of the Supreme Court judgments
In criminalising triple talaq, is the present government misusing a judgment delivered to promote gender equality, for ulterior motives? Or of gross overbreadth in legislating supposedly on the basis of the SC judgement?opinion Updated: Jan 03, 2018 08:19 IST
The Supreme Court’s judgment in the Shayara Bano case, which held the practice of talaq-e-biddat (or triple talaq) unconstitutional, was hailed by many as a step towards the emancipation of Muslim women and a win in the war against institutional remnants of gender inequality. In criminalising triple talaq, is the present government misusing a judgment delivered to promote gender equality, for ulterior motives? Or is it guilty of gross overreach in legislating supposedly on the basis of the court’s judgement?
Parliament, as a whole, in its plenary wisdom will decide many of these issues and later, perhaps, the apex court, in a constitutional challenge. But in a vibrant democracy wedded to rule of law, constitutionalism and genuine free speech requires the analysis of such burning issues, though I restrict myself to the criminalisation aspect and do not treat issues of maintenance and custody as liable to be similarly stigmatised.
The first aspect to remember when dealing with this ill-advised punitive measure by which the pronouncement of triple talaq results in a mandatory jail term, which may extend up to three years, is that the Supreme Court itself gave a highly fractious 3:2 verdict. Even the two sets of majority judgements – one by Justices Nariman and Lalit, declaring triple talaq as violative of Article 14, and the other by Justice Joseph, holding that “what is held bad in the Koran cannot be good in Shariat” – differed widely. The minority held triple talaq as judicially non-reviewable being an integral part of Muslim personal law. The offence is nevertheless made cognisable (liable to arrest without warrant) and also non-bailable (only courts and not police can grant bail).
What is crucial to note is that neither the majorities nor the dissent remotely contemplate, much less direct, the criminalisation of triple talaq. To use the judicial pronouncement as a carte blanche to enact an arbitrary punitive legislation would be a clear distortion of the essence of the Supreme Court judgements.
That part of the Bill which re-declares triple talaq to be illegal and void is largely surplus since the apex court has already done so under articles 141 and 142; all agencies across India have to act in aid and support of that binding judgement.
The Bill makes the classic mistake of treating every error, mistake or illegality as a crime, which it most assuredly is not, though the reverse is axiomatically true. We have very recently seen the disastrous consequences of the same conceptual confusion in the context of the 2G case.
It is also clear that the framers of the Bill have not only unthinkingly decided that “never the twain (spouses) shall meet” but indeed that they shall remain sworn enemies for life! A husband committing triple talaq must spend considerable time in jail (take a statistical average of 18 months) as also suffer the ignominy of arrest and social ostracism on the criminal complaint of his wife. Reconciliation amongst warring spouses, though a cornerstone and bedrock of family law – even divorce by mutual consent cannot be triggered immediately and Parliament still resists the insertion of “ irretrievable breakdown of marriage” – is ruled out by this Bill.
Since the Bill contains a statutory and mandatory declaration not only of illegality and voidness but also of criminality, it is presently doubtful if this offence can be settled, compounded or withdrawn. The state will thus persist with the prosecution even where tempers have cooled and prosecutions are sought to be withdrawn by the complainant.
A not inapposite analogy is if under the extant law of divorce, every allegation of cruelty were also, concurrently, to carry criminal consequences. One would have a society littered not merely with broken homes but with vindictive former spouses as enemies fighting for decades.
The government has not tabled any concrete figures before Parliament, while making the claim in the Bill’s objects that numerous instances of triple talaq are found even after the pronouncements of the Supreme Court. Anecdotal or stray accounts by the law minister do not establish that the scale and degree of the mischief, even after the SC judgments, justify such a draconian clause nor demonstrate that the benefits of the Bill outweigh the costs of ruined homes.
Also, the Bill, as presently drafted, creates what lawyers call a strict liability offence viz one where ostensibly, or at least in present language, no mental intent (or mens rea) is required. Mere utterance of the magic words three times fulfils all the ingredients of the crime.
Good governance requires sobriety, restraint, balance and farsightedness. As regards criminalisation of triple talaq, the government of the day has to hearken back to those virtues instead of relying on brute majorities.
Abhishek Singhvi is a member of Parliament, the national spokesperson of the Congress, former chairman, Parliamentary Committee on Law & Justice, and former additional solicitor general of India
The views expressed are personal