Adv PRASHANT BHUSHAN CONVICTION/ PUNISHMENT for contempt https://youtu.be/dRNui22_KzI

प्रशांत भूषण को अवमानना मामले में 1 रुपये की सजा - क्या इससे भूषण शहीद बनेंगे?

MUSLIM WOMEN’S RIGHTS DAY AND INSTANT TRIPLE TALAQ ACT,2019 : IS THE LAW OVER-CRIMINALISED?

Happy Birth Day "Instant Triple Talaq Act,2019"

1. Introduction

The Government of India has celebrated August 1, 2020 as “Muslim Women’s Rights Day” because the MUSLIM WOMEN (PROTECTION OF RIGHTS ON MARRIAGE) ACT, 2019 (also called as instant triple talaq Act) was passed and published in Gazette on July 31, 2019.  It was one year. The government was celebrating the first birthday of the Act. They also claimed that the instant triple talaq Act had great impact and cases of instant triple talaq is reduced substantially. The government of india pointed out that “One year has passed since the law against triple talaq was passed and there is a decline of about 82 per cent in such cases thereafter. If any such case was reported, the law had taken action,” It was also claimed that “Muslim women from Uttam Nagar and Batla House in New Delhi; Greater Noida, Lucknow and Varanasi in Uttar Pradesh; Jaipur in Rajasthan; Mumbai in Maharashtra, Bhopal in Madhya Pradesh, Krishnagiri in Tamil Nadu; and Hyderabad participated in the conference.” ( see one report here https://www.thehindu.com/news/national/law-against-triple-talaq-strengthened-self-reliance-among-muslim-women-naqvi/article32237825.ece#:~:text=%E2%80%9CAugust%201%20is%20a%20day,parliamentary%20history%2C%E2%80%9D%20he%20observed.) One can see news papers stories in local news papers where muslim women (mostly victims of instant triple talaq ) have expressed their satisfaction and pleasure on the impact of law. This statement of the government regarding impact of instant triple talaq law has not been denied or refuted by any significant reports. 

2. The background

Instant triple talaq was/is a practice where some muslim husbands used to pronounce instant triple talaq to divorce their wife. No reason or ground was required to be given. No time was required to be given to the wife. Any mode could be used like on phone, on whats app, on e-mails, letters etc. It remained unchecked and muslim intellectuals, personal law board, the legislature etc all remained silent to the plight of muslim ladies. In the case of SHAYARA BANO v. UNION OF INDIA, AIR 2017 SC 4609 the Constitution Bench by ratio of 3:2 declared the conduct of pronouncement of instant triple talaq as void and invalid. The Supreme Court did not declare any custom as invalid. Two of the majority of the judges interpreted section 2 of the MUSLIM PERSONAL LAW (SHARIAT) APPLICATION ACT, 1937. This provision contains “talaq”. Among the majority of three judges, two of the judges of the Supreme Court of India declared this part of the provision (section 2) as arbitrary and violative of article 14 of the constitution of india. One judge declared it invalid. The two minority judges did not declare it invalid but held that the conduct was sinful and requested the Parliament to pass a law. In substance all judges held that the law is undesirable and needs change. The Parliament passed a law. They declared the conduct as unlawful and criminalised the conduct. On the issue of criminalisation there was resistance. The resistance still continues to some degree. The government celebration of the Instant triple talaq Act has been criticised.  https://www.livelaw.in/columns/muslim-women-protection-of-rights-on-marriage-act-2019-untested-questioning-protection-of-whom-160876?infinitescroll=1

Most of the arguments against criminalisation of instant triple talaq are recycled version of contentions made previously and rejected by the Parliament. A few of such argument is being analysed here ---    

1. Why criminalise instant triple talaq --In the case of Shayara Bano, the Supreme court desired that a law be passed to check instant triple talaq. The Court never desired that a penal law be passed. Both statements are correct. But desirability of criminalisation of a conduct is a policy decision. Should the Parliament wait for a direction by the Court, if in its wisdom it feels that criminalisation of conduct will be an effective remedy?  

2. Second point for me is the objection that there was no consultation with stakeholders before passing the instant triple talaq law. Who are stakeholders? Muslim personal Law Board says they are stake holders? Are the? Have we read the affidavit of MPLB? It is so too disgusting to mention here. In a conservative society like ours, the so called stakeholders are mostly regressive in their attitude. 
1. The Age of Consent Act, 1891, was passed by British India to raise sexual intercourse for all girls, married or unmarried, from ten to twelve years. Its violation was subject to criminal prosecution as rape. It was severely criticised as an interference in orthodox hindu code and family matters. One such criticism led to prosecution under section 124A of IPC called as Queen Empress v. Jogendra Chandra Bose, (Bangobasi case) 1892. 
2. When Hindu Code Bill was presented there was hue and cry. Indeed Hindu law enactments also penalised many conducts which are civil in nature. It was opposed but it was necessary. Had Nehru left it to so called stakeholders, the reform in Hindu law could never have been initiated. The Bill was opposed by many muslim and non muslim organisations, experts. At the same time it was supported by many muslims and non muslims. (https://economictimes.indiatimes.com/news/politics-and-nation/muslim-women-thank-pm-modi-on-passage-of-triple-talaq-bill/articleshow/70465902.cms?from=mdr, https://www.hindustantimes.com/analysis/triple-talaq-law-a-historic-moment-for-social-justice/story-RuqHguOXNrjAcyu8vrRgcO.html)The support of Instant triple talaq Bill in media or through organisations was in the minority because of obvious reasons. (i) It is never an easy task to penetrate conservative minds and convince them. (iii) Dominant media, (print media which is serious), a group of NGOs want revolution in Hindu laws but wish to love status qua if it is muslim questions. (iii) They think that all moves by Modi government is a part of Hindutva agenda. 
3. Will it solve all problems of muslim women--“was triple talaq the sole issue the Indian Muslim women were haunted with..?” “will mere criminalization of Triple Talaq improve the deplorable socio-economic status…”? 

This is a perfectionist view. Perfectionist argument thinks that everything should be improved in one go and if all the problems cannot be resolved, do not even try for it. There are many issues, be it Muslims or hindus or others. But some beginning has to be made. The literacy among Muslims women is poor. Rightly pointed out. Thankfully, the muslim intellectuals have talked about it. The issue of literacy and instant triple talaq is entirely different. Literacy is an issue of governance. Laws and policies are at place, We need to enforce and highlight the lacuna in enforcement. Instant triple talaq is an issue of law. The Court declared it unconstitutional/illegal. Mere parliamentary law could not have served any purpose because a judicial law was already existing. The stakeholders failed miserably  to address the issues of reforms. Indeed all opportunities to address this before the decision of the Court was used only in protecting a misplaced idea of muslim identity, tradition and consensus.   

4. Another argument is “More victimization..” ---If the husband will desert her, there are laws in place for maintenance and even divorce. (pl correct me, if I m wrong). This argument sounds like a refuge to justify one's stand. 
5. THE CITIZENSHIP AMENDMENT ACT, 2019 --It was argued that instead of celebrating Aug 1, it should be Dec 15 when a movement started in Shaheen Bag. The fight and movement against the Citizenship Amendment Act, 2019 was unprecedented. The fact is that the law is not applicable to Indian citizens. The threat to Indian muslims is manufactured, and a result of fear mongering. The movement was polluted by secessionist voices, violence and riots which killed many innocent lives. The government also failed to convey the real intent of the enactment. To declare  Dec 15, as a day is open to other political parties and governments in many other states. No one stops them to honour it. 

III. Concluding remarks 

Therefore, the argument of over criminalisation of family matters is superficially attractive but substantially ineffective. It is high time muslims intellectuals should initiate support reforms in their family law. Chest beating will not help. Many other issues of personal laws are before the Supreme Court. Be it Bigamy or Halala or genital mutilation, bigamy etc. If they do not initiate a dialogue with an open mind and progressive heart, the Supreme Court will declare other practices as violative of fundamental rights. Democratic process needs to be respected with all its likings and dislikings. Modi Government and the Parliament is a new phenomenon. They are becoming stronger and stronger. They are getting support of the people. They are getting support of political parties which are not in the alliance. The institutions and the people are convinced that the government is powerful and is taking strong measures never taken before. The Parliament will pass a law to bring further reforms in personal laws and realise the intent of the founding fathers. It is better to be discuss on the table and be a part of rational discourse rather than apprehending everything as suspicious. In the time of social media, it is not possible to rant the same tune because people cannot be fooled for a longer period. Many muslim women and muslim intellectuals have started understanding it that Bhedia aya bhedia aya (भेड़िया आया भेड़िया आया ) will not work anymore if the issues of injustice, arbitrariness and gender equality are addressed genuinely and start delivering results.