In an essay published in the Washington University Law Review (1979), Martin R. Gardner posed a significant question whether an “illicit legislative motivation” could be “a sufficient condition for unconstitutionality”. He explored this “muddled area” in the context of religious motivation under the establishment clause of the U.S. Constitution and said that “the claim that religious motivation justifies invalidation is controversial and largely conjectured”. He, however, identified “significant sectarian motivation” without a “secular purpose” as a ground for invalidation of the law.
The content of the Muslim Women (Protection of Rights on Marriage) Bill, 2018 (Triple Talaq Bill) clearly reflects a sectarian overtone that even attempted to mislead the public by distorting the Supreme Court judgment in Shayara Bano’s case (2017). In the ‘statement of objects and reasons’ attached to the Bill, Union Law Minister Ravi Shankar Prasad said that in spite of the Supreme Court setting aside the practice of talaq-e-biddat in Shayara Bano , there have been reports of divorce by way of such means. He described the Bill as an instance of “state action to give effect to the order of the Supreme Court and to redress the grievances of victims of illegal divorce”. He also lamented that the Supreme Court verdict “has not worked as any deterrent in bringing down the number of divorces by this practice among certain Muslims”.
The Bill is a classic case of an unfair and deceptive legislative move with a populist agenda, which in a country like India should call for a novel and effective judicial scrutiny. First of all, in the emblematic judgment in Shayara Bano the majority on the Bench had invalidated the practice by terming it as unconstitutional. The simple and plain effect of the verdict is that the pronouncement of triple talaq is a nullity having no legal effect at all on a subsisting marriage, and despite the husband’s gesture, the matrimonial bond would remain intact, without being dissolved, in the eye of the law. Therefore, the Bill proposes to criminalise an act which is non est in the eye of the law. The disproportionate punishment of imprisonment for three years for a civil wrong without even a civil consequence due to the Supreme Court’s judgment is antithetical to the very idea of principled criminalisation. Paradoxically, it was in 2018 that the top court has ostensibly developed this concept by way of the verdicts on homosexuality ( Navtej Singh Johar v Union of India ) and adultery ( Joseph Shine v. Union of India ).
Second, the majority verdict in Shayara Bano did not direct the government or Parliament to criminalise triple talaq or “to give effect to the order”, as implied in the Bill. There was no need to do so either, as the judgment got effectuated on its own. The judgment had no intention to create any deterrent, since the very act of triple talaq is void ab initio , according to the Supreme Court. The Bill thus tries to distort the intent and content of what the court said in Shayara Bano . An analogy between criminalisation of dowry and triple talaq does not make sense. In the case of dowry, transaction is a reality, whereas in triple talaq, after the top court holding that it is a nullity, there is no act at all in the legal sense to constitute an offence. The Bill thus assumes validity for an action which the court invalidated, and as such the very thematic premise for the Bill is artificial, erroneous and even contemptuous. The settled legal principle in India that no ill motive could be attributed to legislation would require a revisit, when politics overweighs constitutionalism.
Third, criminalisation of triple talaq, can only motivate a “clever” husband to resort to other methods of divorce which do not fall within the ambit of the Bill or to simply desert his wife. Thus the Bill does not serve the Muslim woman’s interest.
Blow against tenets
By trying to segregate a particular mode of divorce in a particular community and to punish the men of that community alone, the Centre is trying to shatter two fundamental tenets of the Indian Constitution — equality in the eye of the law and secularism.
Kaleeswaram Raj is a lawyer in the Supreme Court of India