Devastates Rather than Reinstates Divorcee, Hopes of Harvesting Votes Illusory
What an irony! Prime Minister Narendra Modi paid a special visit to Indore in M.P., embarked at Saifee Mosque to offer his reverence to the head of a Muslim sect, attended the annual congregation of “Ashara Mubaraka”, profusely paid tributes to Imam Husain. When people were baffled by his “change of the heart”, he got, within four days since his ‘laboured bonhomie’, promulgated an ordinance aimed at the rare practice of instant talaq.
The draft bill officially called “The Muslim Women (Protection of Rights on Marriage) Bill 2017” was first introduced and passed hurriedly the same day in the Lok Sabha on 28 December 2017. No consultation was made on the draft with other parties or any organisation relevant to the matter. They did not agree to send it to the parliamentary committee for detailed consideration, shot down amendments proposed in Lok Sabha without giving proper consideration and tried to make it a political victory. However, the Bill could not get through in the Rajya Sabha, paving way for watering-down some of its draconian features. The opposition did not agree, instead demanded to send it to the house committee as it still had such features which are marked as unjust and unwarranted by the legal luminaries. Most importantly making a civil matter, a criminal act is highly undesirable and unprecedented especially in an environment where criminal acts are being decriminalised as we saw in scrapping of Sec 377 of CrPC.
Without making serious efforts to arrive at any consensus in the Rajya Sabha, the Government wanted to get it passed on the last day of the session, which being Friday was reserved for private-members business. This indicates that the Government was not prepared to get it passed and remained stuck to its belligerent ways. One month after the parliament session ended and the Rafael matter hot up, the Union Cabinet on 19th September, decided to take the ordinance route to outlaw the practice. It was signed by President Ram Nath Kovind the same day. Ostensibly the ordinance is a discreet tactic to divert public discourse from the Rafael corruption issue and to use it as a political tool for harvesting votes in upcoming assembly elections in Rajasthan, M.P. and Chhattisgarh.
Though some Islamic Schools of Thought recognise “instant talaq” or “Talaq-e-Bidat” as valid and irrevocable, in general, Indian Muslims and their Ulema consider “Talaq” as a bad practice. Instant talaq is considered even more heinous and a sin. When the Supreme Court had set the practice aside, the Muslim organisations, including All India Muslim Personal Law Board, which was defending the practice in the SC, welcomed the judgment. The Board also assured the SC to take it upon them to make Muslims aware of the vices of ‘Talaq-e-Bidat’ and exhort the community to strictly abide by the procedure as laid down by the Quran. JIH, AIMPLB and other Muslim organisations launched special derives. Imams were asked to make it a point during Friday sermons. These efforts have a visible impact. Everybody knows social awareness settles slowly. A practice which was “valid” even in Indian courts also since last 1400 years cannot be eliminated instantly. So there was no need for the government to intervene in the matter by way of making utterance of triple talaq a criminal offence. The Supreme Court order, “Triple divorce is set aside” has made Muslims quite cautious.
Briefing reporters on the ordinance, Union Minister for Law and Justice Ravi Shankar Prasad claimed: “There were an overpowering urgency and a compelling necessity to bring the ordinance as the practice continued unabated despite the Supreme Court order last year.” This alibi is quite illogical and absurd. The practice of untouchability was out-lawed some 70 years ago but still persists. Strict laws exist for long against murder, abduction, rape, loot, etc. but there is no end to the crimes and criminals are set scot-free even after thousands of crores of rupees are drained from banks. Violators of law are promoted as leaders and even elevated as ministers.
The Statement of Objects and Reasons of the Ordinance says, “The Supreme Court held triple divorce unconstitutional.” It is factually incorrect. In a split judgment only two of five Judges held ‘Talaq-e-Bidat’ “unconstitutional” as it is an “arbitrary act”. A single Judge struck down ‘Talaq-e-Bidat’ as it has no mention in the Quran and so “un-Islamic”. The court finally passed a single line order, “In view of the different opinions recorded, by a majority of 3:2 the practice of ‘Talaq-e-Bidat’ – triple talaq is set aside.”
Two Judges, who found it “an integral part of religious practice” and so legally valid opined that if the legislature wants, may bring a law, to invalidate it. However, after the order, there was no space to give weight to a minority opinion.
Sign of undue impatience
Criticising the promulgation of the ordinance, The Hindu noted: “The Union Cabinet’s decision to take the ordinance route to enact a diluted version of its lawmaking instant triple talaq a criminal offense is a sign of undue impatience. This is a matter that required deliberation, especially after serious objections were raised to some provisions of the Bill; also, there is an ongoing debate on the desirability of instant triple talaq.”
Criticising the law, the paper writes, “The Bill … made ‘Talaq-e-Bidat’ punishable by a three-year prison term and a fine. In the face of Opposition concerns, the government proposed changes to water down some provisions…. Despite a notice for these amendments being given, the matter was not taken up in the Rajya Sabha in the last session. When the Bill has been to the next session of Parliament, it is not clear what exigency impelled the government to take recourse to the extraordinary power of promulgating an ordinance. Could it be the elections to some State Assemblies this year? Clearly, the Centre wants to demonstrate that it is espousing the cause of Muslim women. But the mere lack of consensus in the House is not a good enough reason to promulgate an ordinance. It could even amount to subversion of the parliamentary process, as the Bill has been passed in one House and the other is likely to consider it in an amended form.
“But the core issue that arises from the proposed law remains: whether a marital wrong, essentially a civil matter, should lead to prosecutions and jail terms. Also, when the law declares instant triple talaq to be invalid, it only means the marriage continues to subsist, and it is somewhat self-contradictory for a law to both allow a marriage to continue and propose a jail term for the offending husband.” (Editorial 20 September)
A Mumbai-based women’s rights lawyer Flavia Agnes, tearing apart Modi Government action wrote, “The Union Government has finally done what it has been threatening to do for quite some time now. That is Parliament does not pass the Bill, it will bring in an Ordinance to triple talaq. Ostensibly, this is done to save ‘our Muslim sisters’ from the clutches of a draconian law, as the PM has claimed during his election campaign. But one wonders why this tearing hurry to bring in this law through an Ordinance? What political expediency has driven the government to take this step?”
She further wrote, “Some feel that the move is politically motivated, that it will help the BJP-led NDA government in the forthcoming 2019 general election that Muslim women will view PM Modi as their and it will help to offset anti-Modi sentiments prevailing among large sections of Muslims. But how true are these speculations? Why will Muslim women go against the sentiments of their own community and cast their vote in favour of a party which is generally perceived as anti-Muslim unless they are able to see some concrete gains beyond the rhetoric.
“And here comes the crux of the matter. What will this Ordinance give Muslim women that they already do not have under other prevailing statutes? Will it save Muslim marriages, protect the Muslim woman’s economic rights or ensure that she has a roof over her head, beyond what is stipulated under other existing statutes? Is this a magic wand that will save Muslim women from destitution stemming from triple talaq?
“Quite the contrary, it will increase destitution among Muslim women. Because when a husband is jailed for pronouncing triple talaq, he will not be able to provide maintenance to his wife and children. Worse, it will not save her marriage. Is the end goal for a Muslim wife in a marriage incarcerating her husband or securing her economic rights? I think the government has got its equations wrong.” (“The endgame of triple talaq”- The Tribune, 21st September)
Will break marriage
As Prof Faizan Mustafa indicated in a recorded speech, the objective of SC order is clearly to save the marriage, while this act will break the relations to the point of no return and will inhale any opportunity of re-union and reconciliation.
A large section of Muslims uttering “talaq” multiple times at one time, as one talaq that is revocable within the period of Iddat (three menstrual circles of three lunar months). This ordinance blocks the opportunity of revocation by sending the erring husband to jail. He is not made entitled to get bail as a right during the pendency of the case, which may take years. This will certainly block any opportunity of reunion and shall ruin the broken family.
Professor Mustafa, in his lengthy article, “Why Criminalising Triple Talaq is Unnecessary Overkill” (IE-21 September) made it amply clear, “In the triple divorce judgment of August 22, 2017, the minority view of Chief Justice J.S. Khehar and Justice Abdul Nazeer was that a triple talaq is a valid form of divorce under Muslim law and the right to follow personal law is an integral part of freedom of religion. But if parliament so wants, it may enact a law on it. No one should question parliament’s power to legislate in respect of ‘personal laws’ in the exercise of its legislative powers under Entry 5 of List III and thus it can certainly bring in a law outlawing triple talaq.”
He further wrote, “But since the majority of three judges had already ‘set aside’ triple talaq and under Article 141 of the constitution, the majority view is the ‘law declared by the Supreme Court’, there is basically no need for any law as triple talaq no more dissolves the marriage. Since the court did not explicitly state the consequences of three pronouncements, parliament by law may lay down that three pronouncements will count as one revocable divorce. This is the legal position in most Muslim countries whose examples were cited by the government in the apex court. Nowhere in its judgment has the Supreme Court said that triple talaq is criminally punished.” (15 December 2017)
In a recent article after the Ordinance, Dr. Mustafa delved over the question, “Why triple talaq Ordinance is neither perfect nor necessary?” and concluded, “In any act, the state must demonstrate “compelling state interest”. Ordinances are to be promulgated when there is immediate need of a law and Parliament is not in session. The Muslim Women (Protection of Rights on Marriage) Bill, 2017 is pending in Rajya Sabha. Political needs do not justify the use of the extraordinary power to promulgate an Ordinance.
“The Statement of Objects and Reasons of the Ordinance says the Supreme Court held triple divorce unconstitutional. In fact, the court merely set aside the practice. The Ordinance itself may be struck down as unconstitutional on the grounds of harm theory, and arbitrary and excessive punishment,” he said.
[The writer is a senior free-lance journalist and social rights activist from Delhi; [email protected]]