A case to withdraw the triple talaq Bill

A case to withdraw the triple talaq Bill

Context

The Bill in its current form has many procedural and legal infirmities

What has happened?

The Prime Minister’s lament to the outgoing Rajya Sabha MPs that they missed out on an opportunity to debate important issues such as the triple talaq Bill — the Muslim Women (Protection of Rights on Marriage) Bill, 2017 — due to disruptions is an indication that despite widespread public opinion against it, the Centre is inordinately keen on making it a law

SC rendered the pronouncement ineffective

The Supreme Court, in Shayara Bano v. Union of India (2017), had set aside the validity of instant talaq (talaq-e-biddat), thus rendering its pronouncement ineffective in dissolving a marriage

Criminalising inconsequential words

Yet this Bill makes the pronouncement punishable with a three-year imprisonment without realising that such an arbitrary exercise of legislative power is liable to be judicially reviewed and struck down for violating the principles of natural justice and rule of law

Unjust recommendations

If talaq-e-biddat is declared an act of “domestic violence” innocent men could be forced to undergo the humiliating punishments reserved for cognisable and non-bailable offences.

Personal Liberty

The triple talaq Bill fails the test of constitutionality found in Article 21

Due process of law vs. procedure established by law

• Procedure established by law (explicitly provided in Indian constitution by Article 21): It means that a law that is duly enacted by the legislature or the concerned body is valid if it has followed the correct procedure. Following this doctrine means that, a person can be deprived of his life or personal liberty according to the procedure established by law. So, if Parliament passes a law, then the life or personal liberty of a person can be taken off according to the provisions and procedures of that law. This doctrine has a major flaw. What is it? It does not seek whether the laws made by Parliament is fair, just and not arbitrary. “Procedure established by law” means a law duly enacted is valid even if it’s contrary to principles of justice and equity
• Due process of law (followed in US): Due process of law doctrine not only checks if there is a law to deprive the life and personal liberty of a person but also see if the law made is fair, just and not arbitrary. If SC finds that any law as not fair, it will declare it as null and void. This doctrine provides for more fair treatment of individual rights. Under due process, it is the legal requirement that the state must respect all of the legal rights that are owed to a person and laws that states enact must confirm to the laws of the land like – fairness, fundamental rights, liberty etc. It also gives the judiciary to access the fundamental fairness, justice, and liberty of any legislation

Is fairness also implicit under Article 21?

Yes. As per, SC ruling in Maneka Gandhi v. Union of India (1978), a seven-judge Constitution Bench ruled that fairness is implicit in the phrase “procedure established by law” and therefore, the procedure should be “fair, just and reasonable, not fanciful, oppressive or arbitrary”; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied. The court also clarified that “law” means reasonable law, not any enacted piece.

• The same view was endorsed by the Supreme Court, in Justice K.S. Puttaswamy v. Union of India (2017)e. the recent Right to Privacy judgement
• The same view has been further emphasised in stronger words by Justice V. Krishna Iyer in Sunil Batra v. Delhi Administration (1978)

Why the procedure imposing imprisonment in talaq bill is not fair?

• Against article 19(1)d & 19(1)g: The imprisonment clause is against 19(1)d and 19(1)g which allow all citizens “to move freely throughout the territory of India” and “practise any profession, or to carry on any occupation, trade or business.” Thus, if a man is unjustifiably jailed under the proposed law even for a few weeks, he will be denied of these rights for that period, to say nothing about the dim prospects of securing a job after the stigmatising confinement

Author states that seen in the light of the abovementioned judicial pronouncements & the A19 sub clauses, procedure imposing penal imprisonment for talaq-e-biddat in the proposed Bill is unfair