In a sudden move, the Central Government introduced a bill criminalising the practice of unilateral instantaneous divorce by Muslim men, commonly known as triple talaq, vide, the Muslim Women (Protection of Rights on Marriage) Bill, 2017 in the Lok Sabha on 29.12.2017. The Bill was passed, amidst lots of opposition, especially amongst Muslim women’s groups and organisations. The Bill essentially declares the pronouncement of talaq, which is defined as triple talaq, to be illegal and void, and makes it a punishable offence, i.e., any Muslim man who divorces his wife, vide triple talaq, would be liable for punishment up to three years and fine. The Bill further makes this a cognizable offence (the accused can be arrested without a warrant) and non-bailable, thereby bringing it within the ambit of ‘serious offences’, which has furthered angered many individuals. The Bill also provides that ‘subsistence allowance’ would be provided by the husband to those Muslim women and their dependent children who are victims of triple talaq and she also would be entitled for the custody of her dependent children. These provisions are of little assistance to Muslim women who do not want their husbands to be treated as criminals and sent to jail, especially in light of the current atmosphere of ever growing right-wing violence against the Muslim community.
Though the Government is trying to use the mandate of the Supreme Court decision in Shayara Bano v Union of India (Writ Petition No. 118 of 2016, dated 22.08.2017) to justify bringing this ill-thought out law, in reality, it was the minority view of Supreme Court that asked the Government to legislate on this issue. The majority view, authored by Justice Kurien Joseph, Justice Rohinton Nariman and Justice U.U. Lalit in two separate opinions, the practice of triple talaq was not part of Islam, which does not sanction the practice of instantaneous talaq without providing any chance for reconciliation. Further, Justices Nariman and Lalit held that the practice of triple talaq was arbitrary and discriminatory and was thus unconstitutional. No where in the majority opinion a reference was made to the need to bring a legislation in this regard.
While the government tried to paint it as a legislation aimed at gender justice, criticisms have poured in from all corners of the society. The Law Minister claimed that the jail term intended to serve as a deterrent, as cases were being reported even after the Supreme Court verdict, rather the number had spiked, but this provision has become the focal point of the criticism. The All India Muslim Personal Law Board and even the Bebaak Collective, a group of autonomous women’s organisations that played an important role in Shayara Bano case, have denounced the Bill for not taking into account the concerns of Muslim women and that of the larger Muslim community. In fact, no consultations with the groups or civil society happened. The Government did not bother to organise one meeting or consultations with the affected community to elicit their response to the Bill.
The Collective further warned that such a move would alienate the Muslim men more and that criminalising them would not serve the ends of gender justice. When a woman complains against triple talaq, she does so because she wants to stay in the marital home and continue drawing financial support from her husband for herself and for her children. This objective would get defeated if the husband is penalised for pronouncing talaq-e-biddat. They have further pointed out that the legislation has a very narrow scope and is only aimed at the very practice of triple talaq and not the allied practices like that of halala that further propagate gender discrimination in the Muslim society.
Thus, it is very clear that the Bill was not brought in to fulfill the mandate of the Supreme Court judgment, since there was no such mandate given, but to advance the dangerous sectarian agenda of this government to further alienate the Muslim community, to criminalise their men and to use the discredited practice of triple talaq as a stick to further penalise the already beleaguered community. The lofty claims of the Ministers in Parliament about fighting for the rights of Muslim women sound hollow in light of their perpetuation of anti-women policies and attitudes throughout. The fact that there was no demand from the Muslim women themselves to criminalise triple talaq speaks volume about the motivation behind the current Bill. Whatever it is, it is not the best interest and welfare of Muslim women for sure.
Major decisions –
- Notice issued in challenge to I&B Code – The Gujarat High Court has issued notice on a petition challenging the validity of the recent Insolvency and Bankruptcy Code Ordinance, which bars promoters from participating in asset sale. The petition argues that the ordinance does not distinguish between wilful defaulters and those who are actually interested in retrieving their company. It further argues that the rules place the management of affairs of the corporate debtor in the hands of a resolution professional, who may or may not have experience in the specific area of business of the corporate debtor, thereby risking the entire business. [Accord Industries Limited v Union of India, Special Civil Application No. 22616 of 2017, date of order: 18.12.2017]
- Stay against the Wire vacated – The injunction passed against the ‘The Wire’ restraining it from publishing the article on Jay Amit Shah’s Company, Temple Enterprises has been vacated by the 4th Addl. Senior Civil Judge, Ahmedabad (Rural), Mirzapur. The Senior Civil Judge noted that the Wire had presented information which it had collected from public record and Jay Shah had not challenged the veracity of the facts or the fact the Wire had misrepresented the facts. There was just an apprehension of loss of reputation so the stay had to be vacated. But the order placed a restriction to the extent that the Wire was not allowed to make references to the PM. [Special Civil Suit No. 442 of 2017, date of order: 23.12.2017]
- Lalu Prasad Yadav and others convicted in fodder scam –A Special CBI Court in Ranchi has convicted the former Bihar Chief Minister, Lalu Prasad Yadav, and fifteen others in the fodder scam involving embezzlement of Rs. 89 lakh between 1991-94. Though the court will pass its sentencing order in January, 2018, Yadav and the others have been taken into custody. Following his conviction in another case related to the fodder scam, Yadav was disqualified from Parliament and from contesting elections in 2013.
- Direction issued to make child care leave to female employees mandatory – The Madhya Pradesh high Court has issued directions to ensure that all female employees should get child care leave. This came as a response to a petition filed by a woman employee seeking direction to her employers to grant her child care leave. The Court gave a direction to the Chief Secretary to write to all concerned regarding child care leave so that women employees are not required to file such petitions expending their own resources and time. [ Shibani Suryawanshi v The State of Madhya Pradesh, Writ Petition No. 20586 of 2017, date of order: 01.12.2017]
- Journalists challenge media gag order in Sohrabuddin case – A group of journalists in Bombay has approached the Bombay High Court challenging the gag order passed by the Special CBI judge, Mr. S.J. Sharma, on November 29, 2017 in the trial of alleged fake encounter of Sohrabuddin Sheikh, and two others. The order does not bar the media from being present in the trial but it forbids it from reporting any of the proceedings. The petition challenges this order by arguing that the judge had no power to pass such an order under the CrPC. The basis of the order was the Judge’s fear of misreporting, but the petition highlights that there has been no case of misreporting in the past 5 years. [Sunil Baghel v State of Maharashtra, Writ Petition No. 5434 of 2017]
- Experienced lawyers should be provided in the name of legal aid – The Bombay High Court in a significant decision has passed a series of directions highlighting the importance of providing experienced and appropriate lawyers as part of legal aid to the accused as well as directions on the procedure to be followed when there is an apprehension that the accused was not mentally sound. The High Court directed that “in case of sessions triable offence, it is the duty of the Sessions Judge that sufficiently experienced lawyer should be provided for conducting the case of accused person. The inquiry should be made whether he has conducted sessions cases or not.” [State of Maharashtra v Sheshrao, Criminal Appeal No. 221 of 2002, date of order: 21.12.2017]
- Special NIA court drops MCOCA charges against Sadhvi Pragya and other accused in Malegoan blasts case – The Special NIA Court refused to discharge Sadhvi Pragya, Lt Col Prasad Purohit and other accused, barring three. But the court did drop charges under Maharashtra Control of Organised Crime Act (‘MCOCA’) against all accused. The final framing of charges will take place in 2018. The dropping of the charges is important to note, as the accused were originally charged by Maharashtra Anti-Terrorist Squad under MCOCA. Now most of the accused will be tried under the IPC and the Explosive Substances Act, 2008.
- GSPL’s plea restraining GAIL from supplying natural gas for OPAL in Dahej SEZ dismissed – The Gujarat High Court has dismissed the claim of Gujarat State Petronet Limited (GSPL) and Dahej SEZ Limited (DSL), to exclusively lay natural gas pipelines for ONGC in the Dahej SEZ area. DSL and GSPL had entered into a co-developer agreement in 2009, which was later extended in 2012 for the transmission of natural gas. In 2017, GAIL applied for permission to transport natural gas which was granted in principle. The action was challenged by GSPL on various grounds. But the court refused the claims on the ground that GSPL had concealed an important correspondence, whereby it allowed ONGC to approach other parties as it would be unable to meet its demands. The Court further upheld the ability of the Committee to grant the approval. [Gujarat State Petronet Limited v GAIL India Limited, Letters Patent Appeal No. 2619 of 2017, dated 27.12.20017].
Prepared by Amritananda Chakravorty ([email protected]) and Mihir Samson ([email protected]), Delhi based practicing Advocates.
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