The relatively easy passage of the Muslim Women (Protection of Rights on Marriage) Bill, 2017 through the Lok Sabha has not been replicated in the Rajya Sabha. In the Upper House, the Congress and several other parties have asked the government to refer the bill to a select committee. Arun Jaitley, finance minister and leader of the house, has told the Rajya Sabha that the Supreme Court has directed the government to legislate on the issue within six months. The court’s deadline will expire on February 22. The Parliament is thus bound to enact law within that period, he added.
At best, this is a complete misunderstanding of the Supreme Court judgment. At worst, it is a mischievous misquotation of a Constitution Bench verdict for the purposes of political grandstanding. One is reminded of the infamous utterance from the Mahabharata – ‘Aswathama Hatha…Kunjaraha’ (Ashwathama is dead…the elephant). That was a misleading half-truth, worse than a lie, which Yudhishtra uttered to enable Dhrishtadyumna to kill Dronacharya.
In actual fact, on August 22, 2017, a Bench of five judges “set aside” the practice of ‘Talaq-e-Biddat’, i.e. instantaneous Triple Talaq. The Bench was split 3:2 on the question of validity of the practice. Justices Rohinton Nariman and U U Lalit found it to be unconstitutional, while Justice Kurian Joseph found it illegal.
Chief Justice (at the time) Khehar Singh and Justice Abdul Nazeer were in the minority which upheld the validity of triple talaq. They also held that the practice “has a stature equal to other fundamental rights” and it was not contrary to public order, morality and health. However, since all the parties before the Court had expressed their desire for appropriate enactment on the subject, the minority opinion directed the Government “to consider appropriate legislation.”
Minority opinions do not constitute a judgment or decree of the Court. In this case, the operative portion of the Judgment, signed by all five judges only “set aside” the practice of instantaneous triple talaq. There was no direction to enact a law, nor was there any deadline set. There was also no reference to criminalization of the practice.
It is settled law that a court cannot direct Parliament to legislate on an issue. The doctrine of separation of powers is a basic feature of the Indian Constitution. Enactment of laws falls only within the legislative domain. There have been instances of the Judiciary “requesting” the Government to enact laws. In some instances, the Judiciary has laid down guidelines where no law exists. Anything else is considered judicial overreach. This is something that both Mr Jaitley and Law Minister Ravi Shankar Prasad have repeatedly criticized. In this instant, the minority judgment, only “implored” the Government to pass “appropriate legislation.” Simply put, the Government was not bound to legislate.
One does not need to look too far to point out instances of executive intransigence, in the face of Supreme Court orders. In April, 2016, then Chief Justice TS Thakur had publicly broken down at the Government’s refusal to fill up judicial vacancies, after the Supreme Court struck down the NJAC. Two years later, hundreds of vacancies remain unfilled across Constitutional courts.
In this case, after an electoral scare in Gujarat, the government has passed a hurriedly drafted and manifestly unjust legislation and used the Supreme Court judgment as an unsustainable alibi. There is no court-decreed requirement of a legislation in the first place – let alone a deadline for one.
This is not the only instance of the overnment conveniently misquoting a Supreme Court verdict in order to justify its rule by decree. Based on a similar mis-reading of the Supreme Court order passed in the Lokniti Foundation case, the Department of Telecommunications directed all telecom operators to conduct an Aadhaar-based re-verification exercise of mobile numbers. This has resulted in daily threats of disconnection of mobile phones, where Aadhar numbers have not been linked.
The Government and Parliament are free to legislate in any manner they choose to. However, relying on selective misreading of the Supreme Court’s orders and judgments, is to do disservice to both Court and Parliament. The Supreme Court’s setting aside the practice means that pronouncement of instantaneous triple talaq has no legal effect. The marriage continues to exist.
When the marriage subsists, imprisoning the man who unsuccessfully attempts to dissolve a marriage serves no purpose whatsoever. No other law criminalizes an (unsuccessful) attempt at divorce in any other community. Even countries which have banned instant triple talaq, have not criminalized it. India will stand unique, in attempting to criminalise inchoate divorce. It’s parliamentarians and Prime Minister seem to have taken to heart John Mortimer’s dictum that, “Matrimony like murder, carries a mandatory life sentence.”