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Islam and Politics ( 28 Oct 2016, NewAgeIslam.Com)

Comment | Comment

Legislative Inaction on Reform Issues Such As Triple Talaq Leads To Law Making By the Judiciary

By Tahir Mahmood

October 27, 2016

Should irretrievable breakdown of marriage be a ground for divorce under the statutory marriage laws of India? Can a woman facing savagery at the instance of another woman at home seek relief under the anti-domestic violence law? Will the word ‘Talaq’ texted on a cellphone to a married Muslim woman by her husband instantly dissolve her marriage?

To these and many other crucial questions of social significance the response of our rulers over the years have virtually been ‘let the courts decide’. Since Independence they have been shunning their responsibility to bring about social reform and throwing the ball into the court of an already over-burdened judiciary.

A government not comfortable with the need or demand for a particular social reform can find easy ways to keep it hanging in the air. It is said where there is a will there is a way. But where there is no will there is a survey. Eliciting public opinion, making wider consultations and waiting for initiative to come from the concerned group of citizens are common alibis for prolonging inaction.

Reference to the Law Commission is a risky option since, manned by judges and jurists, it can disappoint. Still there is nothing to worry about – we have a plethora of national commissions but their recommendations are not binding on the government.

The NDA government is being enthusiastically complimented and vehemently critiqued by different sections of citizens for its “bold stand” in relation to the issues of Uniform Civil Code (UCC) and Muslim personal law. But the fact is that it has not initiated any action in either case on its own volition. The reference of the UCC to the Law Commission in July this year and the affidavit on Muslim divorce law filed in the apex court last week have been in response to judicial concerns.

In October last year a bench hearing a case under Christian law had – in an implicit reference to the ruling party’s advocacy of UCC before the polls – asked the government “what happened to it, if you want to do it then why don’t you frame and implement it”. The government’s rejoinder was “it is a very sensitive issue and needs wider consultation” – and eight months later it referred the issue to the Law Commission.

Quite often questions whose answers are already given, unequivocally, in the Constitution of the country are posed by governments to the apex court. Early this year some divorced Muslim women challenged constitutional validity of certain aspects of their misinterpreted and awfully misused personal law, and various organisations within the community intervened to support or oppose them. Clubbed together, all these matters are now under hearing.

As the state is the opposite party in all these petitions, the court as per procedure directed the government to file its reply within a stipulated time, which it did last week. This is being hailed with zeal, and opposed with vehemence, by different sections of the society. Both are wrong, as the government in fact had no other option.

“The fundamental question for determination by this court is whether in a secular democracy religion can be a reason to deny equal status and dignity available to women under the Constitution of India,” said the government in its reply, but this question is already answered in the Constitution in no uncertain terms. In Part III relating to fundamental rights Article 25, which provides for the right to freedom of religion, says at the outset that this freedom will be available to the people subject, inter alia, to “the other provisions of this Part” – and those “other provisions” include the right to equal protection of laws and gender justice.

The constitutionally mandated job of providing for social welfare and reform is to be performed by the executive organ of the state through its legislative counterpart. Ordinarily, judges have to interpret and not make the law, but are often driven to that job by endless inaction on the part of the other two organs of the state. It amounts not to excessive judicial activism or overreach but to discharging a constitutional obligation.