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Triple talaq bill

January 13, 2018

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IN the debate on the Muslim Women (Protection of Rights on Marriage) Bill, 2017, one aspect of cardinal importance has been overlooked. It is the deliberate refusal to abide by the Rules of Procedure of the Lok Sabha and, indeed, the settled norms of parliamentary practice. The bill was passed by the Lok Sabha on Dec 28 but was stalled in the Rajya Sabha where the BJP does not command a majority.

It affects Muslims exclusively. Yet they were deliberately not consulted at all at any stage. This is outrageous. As Eustace Percy said, “No president of the Board of Education would dream of introducing any measure into this House [of Commons] which had not been discussed ad nauseam with the three associations of educational authorities and the National Union of Traders.” In his classic Parliament, Ivor Jennings cites many instances of such consultations prior to the moving of a bill.

There was extensive consultation before the Muslim Personal Law (Shariat) Application Act, 1937, and the Dissolution of Muslim Marriages Act, 1939, were enacted. Before the Muslim Women (Protection of Rights on Divorce) Act, 1986, was enacted, prime minister Rajiv Gandhi met Muslim leaders, lawyers and public figures repeatedly in December 1985.

Muslims are being deliberately marginalised.

Rule 74 of the Lok Sabha’s Rules of Procedure mentions motions that may be moved after introduction of a bill. One of them is “that it be circulated for the purpose of eliciting opinion thereon”. The ‘Directions by the Speaker’ provide a precise procedure for seeking opinions. The bill is sent to state governments to seek “the opinions of members of state legislatures and of such public bodies, selected officers and any other persons as the state governments may think fit to consult”. It is also published in the state government’s gazette. The opinions are printed as ‘Papers to the Bill’ and are laid on the table of the house.

Why was this precise, established procedure not followed in this particular case that involves deep feelings? J.N.D. Anderson points out, “It is the family law that has always represented the very heart of the Sharia, for it is regarded by Muslims as entering into the very warp and woof of their religion.” It has been “basic to Islamic society down the centuries”. Law minister G.S. Pathak recognised in the Lok Sabha in 1966 that “personal laws are mixed up with religion”.

Prime Minister Narendra Modi has had another objective — divide the Muslim vote. Muslim women have a justified grievance of abuse of the utterly un-Islamic triple talaq, aptly called talaq-i-biddat. On each of the three, the route of litigation was adopted. Modi has talked about “getting Muslim women their rights”. A scholar records, “A striking aspect of the 2002 violence [in Gujarat] was the high incidence of sexual violence against Muslim women”. Modi did not weep for his “Muslim sisters” then.

On Aug 22, 2017, a five-judge bench of the Supreme Court of India delivered differing opinions. Contrary to the Quran, two held the “any attempt at reconciliation ... cannot ever take place” and the talaq violated the guarantee of equality. Two others held it to be an integral part of religion, noted moves for reform and recommended legislation. The fifth held that it is not for the court but for parliament to decide. The court’s order reads: “In view of the different opinions, recorded by a majority of 3-2, the practice of ‘talaq-e-biddat’ is set aside”. This is factually wrong since the fifth judge explicitly said the issue was not for the courts to decide.

Still, the divi­ded rulings do not support the draconian bill. It criminalises a breach of contract, which marriage is in Sharia. It makes pronouncement of triple talaq a criminal offence; cognisable and non-bailable with imprisonment for a term which may extend to three years and a fine. Even the offences of bigamy and adultery are non-cognisable and bailable. Only the aggrieved person can complain. Now it will be open to any stranger to rush to the police to allege that he had heard a man orally pronounce triple talaq and he will be arrested forthwith and put in prison — even if his wife did not wish to complain. Who will look after her and the kids if he is imprisoned?

The bill is patently unconstitutional. Article 21 says: “No person shall be deprived of his life or personal liberty except according to procedure established by law.” It presumes a procedure that is reasonable and a law that is not arbitrary.

Failure to circulate the bill forms part of a pattern. The aim is to appease the Hindutva constituency. Since promises of an economic bonanza are proving false, Modi will bank on his other plank: Hindutva. Legislative assault on Muslims is part of the strategy. They must be marginalised.

The writer is an author and lawyer based in Mumbai.

Published in Dawn, January 13th, 2018