By Chintan Chandrachud
January 02, 2018
The Triple Talaq Bill and the Fantasy of Legislative-Judicial Collaboration
On December 28, the Lok Sabha passed the ‘triple Talaq’ Bill — the Muslim Women (Protection of Rights on Marriage) Bill — following a day of engaging discussion. It will soon be tabled in the Rajya Sabha. The legislation was mooted in the aftermath of the Supreme Court’s judgment in August declaring that the practice of instant triple talaq was not constitutionally protected and would have no legal effect. At first glance, these developments come across as a classic example of collaboration the between the branches of government. The Supreme Court made a decision, the government conceptualised a Bill to reinforce the court’s decision, and Parliament is now in the process of enacting that Bill into law. However, this narrative collapses when the issue is considered more closely, as the Bill is at odds with the very judgment that it purports to reinforce.
The statement of objects and reasons accompanying the Bill indicates that it is meant to give effect to the court’s judgment, which it claims had failed to produce any deterrent effect in reducing the practice of triple Talaq across the country. The purpose of the court’s judgment was disarmingly simple: to deprive Talaq-e-Biddat of recognition in the eyes of the law. That remains the case irrespective of the frequency with which it is exercised. To speak of “illegal divorce”, as the statement does, is therefore a contradiction in terms – triple talaq is simply not a divorce in the first place.
The Bill then proceeds based on this mistaken premise. Although it confirms that pronouncements of triple Talaq are void, it goes further by criminalising the utterance of triple Talaq. A victim of triple Talaq, the Bill says, is entitled to a subsistence allowance and custody of minor children. These provisions belong to a Bill that regulates divorce, not marriage. A victim of triple Talaq remains married to her husband. As a wife (rather than an ex-wife), she should be entitled to far more than mere subsistence. The question of custody does not arise where the couple remains married.
The linchpin of the Bill is the criminalisation of triple talaq with a penalty of imprisonment of up to three years. This also undercuts one of the important effects of the Supreme Court’s judgment. Until the judgment, there was an asymmetry between the authority conferred upon the words of a Muslim man as opposed to a Muslim woman. By indicating that Muslim men lacked the power to divorce their wives through triple talaq, the Court diminished that asymmetry. This Bill accentuates it once again and puts men at the centre of legislative policy, by triggering a number of legal consequences upon the utterance of those words.
The alacrity and speed of Parliament’s response to the Supreme Court’s judgment is remarkable. One of the significant questions that arose before the Court was whether it would be appropriate to defer to Parliament on this issue. While the two judges in the minority favoured imposing a six-month injunction to enable Parliament to enact legislation on the subject, the judges in the majority specifically chose not to do so. As one of the judges in the majority noted, “it is not for the courts to direct” the enactment of any legislation.
The fact that the Supreme Court did not direct Parliament to enact legislation does not preclude it from doing so. However, it is interesting that Parliament and the government have responded in a matter of months in the context of a conscious decision not to direct any legislative response. A similarly swift response followed the Supreme Court’s judgment in the Shah Bano case over 30 years ago. In contrast, governments have failed to respond — or have taken an agonisingly long period of time to respond — to judgments recommending legislative action. The best example is the Vishakha case, where legislation on sexual harassment at the workplace was enacted no less than 16 years after the Court’s advice to Parliament. A recommendation from the Court in 1995 to amend the rules of evidence to better address cases involving custodial deaths has still to be implemented.
Overall, the attempt to ride on the coattails of the Supreme Court’s judgment is misplaced. A further round of litigation seems inevitable if this Bill were to be enacted, and there is an even chance that the court may decide that a law criminalising the use of three words violates the right to equality under the Constitution. The moral of the story is not dissimilar to the 2G case. Not everything that is arbitrary or unlawful is, or in this case should be, criminal.
Chintan Chandrachud is an Associate at Quinn Emanuel Urquhart & Sullivan LLP, London