KESAVANANDA BHARATI IS DEAD, LONG LIVE KESAVANANDA BHARATI [BASIC STRUCTURE THEORY]

Basic Structure Theory, Independence of Judiciary and the Threat Within  

Anurag deep

Professor, 

The Indian law Institute

New Delhi

1. Perspective 

Kesavananda Bharati case completes fifty years in 2023. It is a unique case because of various reasons. It was heard by the biggest ever bench till date and decided by a thin majority of 7:6. The majority decided that the Parliament of India can exercise its constituent power under article 368 to amend any provision of the fundamental law of the land ie the Constitution. It can very well amend Part III ie Fundamental rights. But,  the Parliament cannot amend the fundamental or basic structure of the constitution. In other words the provisions cannot be amended in such a manner that it violates basic or fundamental structure of the constitution. This is called basic structure theory. Though the majority was thin  in Kesavananda Bharati, in the last fifty years the doctrine was hardly questioned by subsequent benches. The desirability and constitutionality of basic structure theory was honoured by the judges and the benches almost unanimously though the content of basic structure theory remained in dispute. There are disputes among judges about which principles or provisions are part of basic structure theory. Among lawyers, legal academicians and intellectuals there is controversy as to the very desirability of the basic structure theory. Those who favour originalism still argue that the constituent assembly never thought of such a thing like basic structure theory. Otherwise, they must have mentioned it somewhere. The omission by the constituent assembly is deliberate. Those who support basic structure theory argue that the constitution is an organic document, and it keeps on growing. They also advance the idea of utility and usefulness that the basic structure theory was useful in saving judicial review from the 39th amendment of the constitution, maintaining balance between fundamental rights and directive principles of the state policies, arresting the abuse of article 356 by declaring federalism as a part of basic structure theory and judicial independence through four Judges cases, etc. Basic structure theory established that the Supreme Court has the right to review any State action  and, therefore, established its supremacy on constitutional matters. In the USA the Supreme Court has not declared any constitutional amendment as unconstitutional but in India the Supreme Court has declared a number of constitutional amendments as unconstitutional on the ground of basic structure theory. In this sense the Indian Supreme Court has become more powerful than any of the courts in the world. This is the most important contribution by the Supreme court of India.

  Another unique feature of the case is that such a constitutionally rooted doctrine came because of Kesavananda Bharati who a spiritual leader in Kerala was. He was not a constitutional expert or legal scholar. He passed away on Sept 6, 2020. He challenged the land reforms laws in Kerala which created history in the constitutional jurisprudence in India and the world. The arguments raised in the Court those days are significant and therefore it is desirable to go into some of these arguments. 

2. Arguments 

If someone argues following things how would you feel-

1. The Parliament can abrogate fundamental rights such as freedom of speech and expression, freedom to form associations or unions, and freedom of religion.

2. Democracy can even be replaced and one party rule can be established.

3. Any form of Government with no freedom to the citizens can be set up by Parliament.

These three were basic arguments of the Government of India through the Attorney General for India (AGI) in the ‘Kesavananda Bharati (KNB)’ case, 1973. They are summarised in the initial paragraphs of Sikri, CJ in Kesavananda Judgement. Had the SC through majority of seven judges not repelled such arguments, only God knows what would have happened. Through these arguments the Attorney General was not working “for” India but for the Government. Though the AGI  holds office during the pleasure of the President (article 76, he is not the servant of the government of India but he is a servant of the Constitution. he was expected to be a part of ‘check and balance’ in the system, but he breached the promise silently commanded in the constitution of India.      

3. The Source of Basic Structure Theory: 

   In the Basic Law for the Federal Republic of Germany, 1949, Article 79 clause 3 contains similar provision which is as under:

"(3) Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”  

4. Originalism Vs Pragmatism 

The majority in KNB did not adhere to the doctrine of “Originalism”. Originalism states that the original form of the Constitution cannot be disturbed by the judiciary through an interpretative process. A judiciary is an unelected body, having limited mandate to review the validity of state action. Any disturbance in the original character of the constitution can be made only by the Parliament which has the democratic legitimacy to do it and is accountable to the people of India. The judges are not required to answer the people and therefore the role of judges is limited to interpret the law. Originalism is not against judicial legislation in certain cases but it is restricted. 

However, the judges were courageous, innovative, and discovered or invented the unexpressed judicial power of the SC as a guardian of the constitution.  They heard the silence of the constitution and invoked the wisdom of the constituent assembly which always desired checks and balances over democratic institutions, like Parliament.  The judges preserved, protected and promoted the spirit of constitutional democracy by invoking the doctrine of basic structure theory.  

5. The Constituent Power 

To achieve this end the seven saviours of democratic values and constitutional morality used the means of interpretation called as purposive construction. Indeed the tool used was the constituent power. It is different from statutory, legislative, or constitutional power. It is exclusively provided to the Parliament under article 368. In a sense the Supreme Court usurped that authority. The seven judges were saptarshi (सप्तर्षि). They amended the constitution informally where they read into article 368 a limitation of the basic structure theory on the power of the Parliament. They passed extraordinary judicial legislation of the highest degree in the nature of constitutional amendment. 

6. Rights vis a vis Power Dynamics

This was the beginning of the making of an independent, impartial and a fearless judiciary. Without this type of judiciary democracy, rule of law and constitutionalism is meaningless.  Democracy in general and India in particular is indebted to the seven judges of KN Bharati case and then other cases which kept on sticking to the doctrine of Basic structure theory in various cases.  In the case Golaknath case had developed the "rights" jurisprudence, because it held that fundamental rights cannot be amended by the Parliament. It was a people centric popular decision which was practically against the purpose of Directive Principles of State Policy.

The 24, 25, 26 and 29th amendment were passed to empower the Parliament to amend any part of the Constitution for developing "power" jurisprudence. The purpose was to grant absolute power to the Parliament. It was a power centric decision of the Parliament because they attempted to import the common law doctrine of Parliamentary sovereignty in India. In the UK the Parliament is sovereign. This doctrine of parliamentary sovereignty and representative supremacy was discussed and rejected in the constituent assembly in India. In our country the Constitution of India is supreme and sovereign. The Indira Gandhi government through the Parliament wanted to get absolute power like those of the UK parliament.  The intention of the government and the Parliament may not be bad or anti people. Because an anti-people government cannot survive in democracy for long. It seems they wanted to bring revolution through laws because they thought that in the name of fundamental rights, especially rights relating to property, the judiciary was creating hurdles in the implementation of reforms. But there was some intention to keep the power intact with one party and one person.   

7. Independence Comes with Some Price

In Keshavanand Bharti the SC established a hybrid idea between ‘rights’ of people (established in Golaknath) and the ‘power’ of the Parliament (amendments). The majority decided that the "rights" of citizens are subject to the "Power" of the Parliament. But the power of the Parliament is subject to the "Basic structure theory" under the "the Constitution''. However, as it is said, good things come with some price, and so does democracy. Democracy also needs sacrifice. Independence of Judiciary comes with some cost. The judges who were part of majority judgement in KN Bharati case were superseded because they were committed to the Constitution. A judge, who was committed to the executive, AN Ray J. was picked up and promoted to the position of CJI. First time the constitutional convention was violated. It was violated not for some good. It was breached to find a suitable person in the judiciary who cannot take independent decisions. It was a disgrace to democracy, the profession and the constitution not because the rule of seniority was not observed but because judges were punished for their competence and independence. This reflected the danger in judicial appointments through the executive. AN Ray, J attempted to pay back to their executive masters by manipulating a review of KN Bharati case but he ultimately failed in his design.

The SC through KN Bharati case secured the constitution from the arbitrary decision of the Parliament. One of the arbitrary decisions was the 39th amendment of the constitution where the election of the PM and other officers of the Parliament was declared beyond the power of the judicial review. Indeed this was arbitrarily applied to shield the PM (Ms Indira Gandhi) from a judicial verdict of a very courageous judge,  Sinha, J. of the HC of Allahabad. Justice Sinha convicted Ms Indira Gandhi  for employing corrupt practices to win election. This became the foundation of emergency days which was a real test for the SC, where it failed miserably. While the power of the Parliament was checked by Kesavananda Bharati, the power of the executive was still unrestricted. This unrestricted power of the central executive resulted in an emergency.

8. Surrender before executive 

During emergency, a case was decided ie. ADM Jabalpur v. ShivKant Shukla (1976) which further indicated the vulnerability of executive appointment in the judiciary. The majority of 4 judges of the SC surrendered before the executives. They decided that the fundamental rights and even article 21 can be non-existent during emergency days. Even if any person is arrested or killed, no question can be raised, no reason or basis can be asked. No petition of habeas corpus can be entertained.

HR Khanna J., a great judge of the SC cultivated courage to declare a spade a spade. Khanna, J. dissented which became the silver lining in the dark cloud. As liberty, independence of Judiciary and constitutionalism comes with some price, HR Khanna had also to pay for it whose brilliance and seniority was ignored, and a junior committed judge was made the CJI.  However, his dissent guided the Parliament for a course correction through the 44th amendment of the Constitution but only when the political regime changed. 

9. 45th Amendment, Referendum and Basic structure theory

The Parliament tried to identify the pillars of basic structure theory. Post emergency when the Janata Party came in power defeating Indira Gandhi, they proposed various amendments to secure the democratic set up of the country. They made radical proposals through the 45th amendment of the constitution and proposed that five features are beyond the scope of the constituent power of the Parliament under article 368 for which the referendum shall be required. A proviso was proposed in clause 368(2) which stated that any change in 

1. Secular and democratic character, 

2. Abridging or taking away rights under Part III

3. Prejudicing free and fair elections of Lok Sabha and Legislative Assemblies 

4. Compromising the independence of judiciary and 

5.  This proviso 

Shall need a referendum. Such a referendum shall be a poll by all eligible voters of India who are eligible for general elections ie Lok Sabha.  The quantum of voting was also tough. 51% of all entitled voters can approve the amendment. This would have made article 368 very tough but secure for future Parliament. The proposal shows that the 45th amendment sought democratic legitimacy of the higher level. However, this part of the amendment did not become law.   

X. Asserting Independence-II

While Kesavanand Bharati was the first strong and successful attempt to assert the independence of judiciary from the Parliament, the Supreme court asserted its independence a second time in 1993. This time it was not against the Parliament. It was against the political executive which had the upper and decisive hand in the appointment of judges. The SC further invented authority to make itself more powerful. This time the judicial legislation was passed[declared] insulating the judicial appointment from the domain of political executive. In the second judges' case (1993) followed by the third judges' case (1998) the Supreme court interpreted article 124 of the Constitution and held that the role of the political executive in the appointment in higher judiciary (the Supreme court and the High court) is nominal or formal. 

The upper hand and indeed the final say in the appointment rests with the CJI and the four senior judges which will form a collegium. This reduced the role of the political executives to mere formalities. While the basic structure theory kept on evolving further in various cases between 1973 onwards, in 2015 the Supreme court made the third successful attempt to further insulate judicial independence. 

In the fourth judges' case (2015) the Constitution bench (4:1) declared that the 99th constitutional amendment for an National Judicial Appointment Commission (NJAC) is unconstitutional because they are against the ratio of Kesavananda Bharati case. The NJAC amendment violates the independence of the judiciary which is a part of basic structure theory. Consequently, the NJAC Act, 2014 [https://www.indiacode.nic.in/bitstream/123456789/2142/1/A2014-40.pdf] was also declared unconstitutional. This third attempt to secure the judiciary was against the Parliament as well as the executive, both.

XI. Current trends: Threat from Within

The Supreme Court has secured the democratic values through its various pronouncements. These democratic values are time honoured norms and many of them are mentioned in the constitution of India expressly. Limited power of the Parliament and constitutionalism is a virtue that the 20th century democracies are evolving and establishing. Keshavanand Bharti has done the same by declaring unlimited power as limited by the grund norm of basic structure theory. Independence and impartiality of the judiciary is another democratic virtue. Judiciary secured itself from any arbitrary exercise of Parliament (Keshavanand Bharti) and from the Executive (Judges appointment cases). Recent trends suggest that the threat is neither from the Parliament nor from the executive. It is from within. It is from the bench and the bar. 

In the last few years there have been serious allegations against a few Supreme Court judges. The charges of sexual harassment was made and in some cases it was found to be close to correct. In one case, the rule of natural justice was not followed. However, the Committee consisting of the Supreme Court judges including women judges did not find serious fault in the conduct.  

In another unique incident four Supreme court judges revolted against the functioning of the CJI. The CJI should have heard the voice of his brother judges and addressed their concern. He could not do it. On the other hand the press conference by the four judges cannot be said to be proper. It was a bad precedent. They were under tremendous pressure because of the functioning of the CJI. They thought that there was no option left and the third wing of the State ie judiciary went to the fourth estate ie media. It was not a wise decision. There were options if the four wanted to protest. They could have stopped taking cases, could have gone for leave or could have resigned. But they talked to the media that the CJI is allotting important cases to junior judges or particular judges. The hollowness of this argument was that the next CJIs continued with the same practice. The internal mechanism failed to address the serious problem going on in the bench. What could be a threat to the independence of the judiciary than from the bench. 

The bar in the Supreme court has also attacked the independence of the judiciary by  filing politically sensitive cases in the name of PIL. The judicial process was misused with the idea to influence the electoral process. The Rafale case and Judge Loya are two illustrations. In Rafale case (2018-Manohar Lal Sharma v. Narendra Damodardas Modi) the full bench observed that “the perception   of individuals cannot be the basis of a fishing and roving enquiry by this Court, especially in such matters. ” It rejected the PIL where a demand of investigation of corruption charges or nepotism by PMO in the Rafale jet deal was made on the basis of unsubstantiated media reports. 

In Rafale review (2019) the Supreme court rejected the review petition and observed with greater clarity as under: 

11. All that we would like to observe in this regard is a reiteration of what had already been said by this Court in Kesavananda Bharati Sripadagalvaru v. State of Kerala.  

“Judicial review is not intended to create what is sometimes called Judicial Oligarchy, the Aristocracy of the Robe, Covert Legislation, or Judge­Made Law. The proper forum to fight for the wise use of the legislative authority is that of public opinion and legislative assemblies. Such contest cannot be transferred to the judicial arena. That all Constitutional interpretations have political consequences should not obliterate the fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court room, that judges in order to give legitimacy to their decision have to keep aloof from the din and controversy of politics and that the fluctuating fortunes of rival political parties can have for them only academic interest. Their primary duty is to uphold the Constitution and the laws without fear or favour and in doing so, they cannot allow any political ideology or economic theory, which may have caught their fancy, to colour the decision.” (Justice Khanna – para 1535). 

Similarly in Judge Loya case the Supreme court condemned the approach of petitioners. In a full bench unanimous decision of Judge Loya death case, (Tehseen Poonawalla v. Union of India, April 19, 2018) it was rightly observed by Dr DY Chandrachud, J. that “the true face of the litigant behind the façade is seldom unravelled” and “political rivalries have to be resolved in the great hall of democracy when the electorate votes its representatives in and out of office.” The Court further observed "Serious attacks have been made on the credibility of two judges of the Bombay High Court. The conduct of the petitioners (Advocate Prashant Bhushan was one of them) and the intervenors scandalises the process of the court and prima facie constitutes criminal contempt. However, on a dispassionate view of the matter, we have chosen not to initiate proceedings by way of criminal contempt." 

In 2020 a senior member of the bar crossed all limits of decency in the name of dissent. Advocate Prashant Bhushan has made grossly irresponsible remarks against the CJI, Justice Bobde connecting him to a political party and spreading factually wrong statements. Prashant Bhushan also made allegations against four CJIs as if they systematically destroyed the democratic values. He was convicted for contempt of the Court and punished. The Supreme court was liberal enough to let him go with the fine of Rs 1 in the expectation that he will mend his ways. 

Another illustration is In Re, Hon’ble Shri Justice C.S. Karnan. Justice Karnan was a judge in the Madras High court and then Kolkata High court. He passed defamatory remarks against various sitting judges. He declared a number of sitting judges of the Supreme Court and the HC as corrupt. This wild allegation was reported in the media. He also issued various directions going beyond his authorities. The SC has taken suo motu cognizance of the case and Justice Karnan was found guilty of Contempt of Court by seven judges unanimous verdict. 

Dec 2023 

In continuation of this internal attack another development is from Dec 2023 which is worth noting. It raises suspicion on the listing of sensitive cases. Sensitive cases currently means cases which have some electoral significance, or cases that are connected with opposition leaders or cases which can bring trouble to the Modi government ect. One of the seasoned lawyers of great repute Mr Dushyant Dave wrote a letter to the CJI expressing his concern on selective listing of cases. Advocate Prashant Bhushan brought this to the notice of Justice SK Kaul that matter pertaining to “delayed appointment and transfer of judges” has not been listed before Justice Kaul who was strict on the government. Justice Kaul replied that he does not know but the CJI must be knowing why it is happening. In open court, Justice Kaul and Prashant Bhushan mull over “very strange” listing business in appointment and transfer of judges case – The Leaflet https://theleaflet.in/in-open-court-justice-kaul-and-prashant-bhushan-mull-over-very-strange-listing-business-in-appointment-and-transfer-of-judges-case/ Those who had objections only thrown an apprehension that government is deliberately doing it without any some material of evidence. In another case is Satyendra Jain bail case. Satyendra Jain, a minister in APP run Delhi government was arrested under PCA, 1988 and PMLA, 2002 and got medical bail on interim basis relating to spine surgery. His interim medical bail was further extended. The government opposed interim bail after some time alleging Satyendra Jain is not cooperating with investigation machinery. It was listed before Justice Bopanna who heard it in part. On next date it has to be heard by the same bench of Justice Bopanna but it was listed before Justice Bela Trivedi. Various advocates were suspicious why the change was made and alleged as if it was done with some mala fide. Or it was done under central government pressure. They made headlines as if discriminatory and arbitrary manners are used on bail to help the party in central government. Fact was that Justice Bopanna after part heard matter went for urgent health related leave. He requested that the case be transferred to another bench. Then the registry transferred the case to the bench of Justice Bela Trivedi. ‘Find it surprising’ — CJI on concerns over Satyendar Jain bail plea being listed before Justice Trivedi (msn.com) https://www.msn.com/en-in/news/India/find-it-surprising-cji-on-concerns-over-satyendar-jain-bail-plea-being-listed-before-justice-trivedi/ar-AA1luFKF 

This way a few learned intellectuals are creating an impression that the Supreme court is not independent and impartial. This is a style of placing unnecessary pressure on the registry and the judges. Indeed the lawyers body also criticises the approach of such lawyers.  CJI Now: Dushyant Dave row refuses to diedown, BCI backs CJI now | India News - Times of India (indiatimes.com)https://timesofindia.indiatimes.com/india/dushyant-dave-row-refuses-to-diedown-bci-backs-cji-now/articleshow/105868165.cms?from=mdr      

Independence of the judiciary is now threatened by their own people at the bench and bar. नाविक  जब नाव डुबोए तो उसे कौन बचाये. 

XII. New developments: EWS reservation 

There are deliberations on what are the pillars of basic structure. Though a few judges in various cases have tried to illustrate, it is a difficult exercise. A decision of 2022 ie Janhit Abhiyan v. Union of India has indicated the complexities. It was a judgement on the validity of EWS reservation. The majority of three judges and the minority of 2 judges both referred to the basic structure theory. The majority argued that if EWS reservation is exclusive in nature [those already getting reservation are not eligible to get EWS, you can get only one reservation.] it does not violate basic structure theory. The minority argued that even EWS cannot be exclusive in nature and it violates basic structure theory. Kesavanand Bharati is dead, long live Kesavanand Bharati.

PRESIDENT RULE UNDER ARTICLE 356: RETAIN OR REPEAL (MAHARASHTRA DEVELOPMENTS)

 

Should President rule be imposed in Maharashtra 

Anurag deep

Associate Professor

The Indian Law Institute, New Delhi

 

Kangana Ranaut incident

In Maharashtra there is demand to impose President rule which has gathered momentum after the Bombay Municipal Corporation (BMC) has demolished a part of the office of Kangana Ranaut, an Indian actress on sept 9, 2020. She commented on the functioning of the Maharashtra government on Sushant Singh Rajput suicide case. The twitter war between her and Shiv Sena leaders turned into abusive exchanges and inappropriate expressions. The Shiv Sena/Congress are in power and they could not tolerate the voice of Kangana Ranaut. To teach her a lesson and silence her voice the govt misused legal machinery, ie BMC which has tried to complete the process of natural justice (giving notice) in haste and demolished a part of office with rocket speed, that too when the writ was pending before the court and the proceeding was going on Sept 9, 2020. It is rightly said that जब नाश मनुज पर छाता है, पहले विवेक मर जाता  है. The HC on Sept 9, 2020 has termed the demolition of Kangna property as prima facie mala fide and issued an interim stay. This approach of Maharashtra govt was against all element of rule of law. Rule of law is the basis of the constitution. If rule of law is violated the constitution is also breached. Shiv Sena leaders have also threatened Kangana not to come to Mumbai. This was against the fundamental right of a citizen under article 19 (d) where every citizen has right “to move freely throughout the territory of India.” Moreover she is a resident of Mumbai. Mere case of Kangana Ranaut indicates violation of article 14 (arbitrariness), art 19 (freedom of speech, expression and movement) and art 21 (due process). Maharashtra government is being criticized for not focusing on Covid19 but on other political issues. Shiv Sena goons are also found involved in beating common citizen, veteran army person on VDO, though the goons have been arrested. There was lynching of two saints in Maharashtra. Multiple FIRs are registered against media persons like Arnab Goswami. He and his wife were also attacked.

In the light of this, members of political parties, Governor of Maharashtra, some columnists, intellectuals have started exploring the possibilities of the President rule in Maharashtra under article 356. Despite these incidents, time is not ripe for article 356.

Not a case for Art 356

Art 356 needs breakdown of constitutional machinery. Break down is different from law and order problem. It is also different from stray abuse of power by Govt. Kangana Ranaut case is shameful abuse of legal process to intimidate some one who expresses against the government. Similarly other incidents indicate the weakness of the govt on the front of law and order or public order. It is failure of governance but it is still not breakdown of constitutional machinery. The situation under art 356 needs more serious conditions because a democratically elected govt cannot be dismissed on law and order problem even if it is serious some time.  

The legal course open to the central govt is that it may issue a warning to Maharashtra govt, if it feels the things are going beyond control. Under article 355 “it shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution.” Under article 365 it is stated that 365. “Where any State has failed to comply with, or to give effect to, any directions given in the exercise of the executive power of the Union under any of the provisions of this Constitution, it shall be lawful for the President to hold that a situation has arisen in which the Government of the State cannot be carried on in accordance with the provisions of this Constitution.” If the Maharashtra govt fails to address the concern of the central government, this can be a ground for article 356. Otherwise, the State govt commands the confidence of the house. It is yet to be established that the State govt is deliberately involved in illegal activity though there are violations of rule of law. Rule of law is a part of basic feature of the constitution. More such violations on consistent basis will attract art 356.

The SC check through Bommai and other precedents

The central govt is also aware that in 1994 in SR Bommai case the SC has held that art 356 is the last measure. The action of central govt can be challenged and the central govt will be required to establish that there was no other alternative. Central govt is also aware of what happened in Arunachal Pradesh and Uttarakhand case.

On July 13 2016 a constitution bench of the Supreme Court has declared the President rule imposed in Arunachal Pradesh as unconstitutional. It has restored the previous Congress government. In Uttarakhand also Harish Rawat government was restored few months before Arunachal judgement. These incidents and decisions often reignite the debate on the retention of article 356 in a federal set up.  

When can article 356 be applicable 

कब ३५६ लागू हो सकता है --

१. Political crisis-राजनैतिक संकट --

अ. The CM has no confidence of the house. दल या नेता को बहुमत का समर्थन नहीं प्राप्त है, या उसे खो दिया है, (केवल इसकी संभावना मात्र से ३५६ लागू नहीं कर सकते, बहुमत नहीं है यह सदन के पटल पर स्थापित होना चाहिये No confidence shall be proved only on the floor of the house). 

 

आ. Post election, the government cannot be formed. चुनाव के बाद सरकार का गठन नहीं हो पा रहा है, क्योंकि त्रिशंकु विधानसभा बनी है या एनी गतिरोध है 

२. Government either engaged in anti national activity or fails to stop the activities सरकार राष्ट्र विरोधी कार्य में लगी है या उनके खिलाफ समुचित कदम नहीं उठा रही है 

३. The government is supporting unlawful activity or the administrative machinery is being used to some how support it. सरकार की पूरी प्रणाली अवैध कार्यों में लगी है या उसे लगातार प्रत्यक्ष समर्थन दे रही है,  प्रणाली का खुल कर दुरुपयोग हो रहा है, या उसे रोकने के लिए समुचित कदम नहीं उठा रही है. पंथनिरपेक्षता के विरुद्ध काम कर रही है, जैसे -१९९२ में अयोध्या में विवादित ढांचे के विध्वंस के क्रम में भाजपा की सरकारों को बर्खास्त कर दिया गया था. 

४. The State government declines to implement central laws or executive direction validly given under article 255/365. केंद्र के क़ानूनों को, उसके  विधिक निर्देशों को मानने से मना कर रही है, जैसे अन्वेषण संस्था सीबीआई, एन आई ए को सहयोग नहीं कर रही या अनुच्छेद  २५५, ३६५ के निर्देशों को नहीं मान रही 

५. The orders of the court are not followed deliberately on consistent basis न्यायालय के निर्देश नहीं जान बूझकर नहीं मान रही 

६. etc आदि 

The constituent assembly wanted article 356 as ded letter box. But it was misused like anything. However after SR Bommai judgement followed by other precedents article 356 seems to be in sleep mode. संविधान सभा में ३५६ को टेड मैटर बॉक्स जैसा कहा गया था.

Desirability of art 356

In a federal democracy such provision prima facie raises various questions. That too when the framers of the Constitution of India after studying all the known constitutions of the world and after many marathon discussions reached to the conclusion that India must not be a unitary state but a federal State (ie. power shall be distributed between Centre and State).  The cultural historical, geographical and political reasons played key role in reaching to this conclusion.  But, there were certain causes and circumstances which compelled the constitutional experts to think and decide whether the unitary system (where there is one power center) should be totally avoided?  They could not make up their mind in affirmative and the majority was of the opinion that any federal system especially India cann’t neglect all the characteristics of a unitary state. Emergency provisions in the constitution of India which gives sweeping power to center over state should be understood in that context.

Background of 356

When the Constituent Assembly commenced its deliberations (9^th December, 1946) on a written constitution for India, it was a period of great political upheaval. India was passing through a deep and unforgettably shocking experience of at least three incidents. One, partition, carnage and destruction of people as well as property; Two, the persistence of some erstwhile rulers of Indian states to remain outside the union (India)and to fight for their independence. Third incident is less known which can be found in the work of Fali S. Nariman, “ Protection of Human Rights during emergencies, The Review, International Commission of Jurist. N56/1996, P-3. He quotes the assassination of U Aung San and most of his cabinet colleagues in neighbouring Burma(now Mayanmar) in July 1947.  This hydraulic pressure of significant events had their effect. They greatly influenced the draftsmen of the constitution of India; to structure the basic document so as to provide the strong centre armed with special powers. Part XVIII “Emergency provisions: Art 352 to 360 was incorporated with this idea, of which Art 356 is most disputed one. Other three compelling factors which also gave force to the incorporation of Art 356 were the past experience in the U.S. A (viz Pullman Strike case (1894). Due to strike by labours in the State of Illinois railway lines were jam. Cleveland,  the President of the USA sent federal troops ‘against the will and without consent’ of the Governor of Illinois State. In a challenged before the US Supreme Court, one of the arguments was the federal government has no authority to encroach the jurisdiction of State government in a federal system.  The US Supreme Court in the case of Re Debs (1895), however rejected this argument and decided in favour of federal government. Framers of the constitution of India were aware that similar exceptional situations might arise in India. And central government must be constitutionality and expressly empowered to face those exceptional situations. Second reason was the fact that in 1950 ‘democratic rule based on adult franchise was being introduced for first time.  Almost one-third of the country under princely rule had never known elections.  Rule of law was a novelty in those areas.  The infant democracy required careful nurturing. Many a hiccup was expected in the days to come.’  This perhaps explain the need for a provision like the one in Art 356 that time. Lastly the diversity in India and the strong passion and obsession of people for their sect, language, cast, religion, or region etc could not be overlooked. These were the major factors which helped in the incorporation of Art 356 under which President’s rule can be imposed in any state. The executive and legislative powers of the state is assumed by the Central government and the Parliament in the event of breakdown of the constitutional machinery in the concerned state.

Change in Background

Now the back ground is changed. We have almost forgotten the unfortunate incidents of partition. Electoral democracy is very matured, thanks to election commission and electronic media. Post 1993 we have now four tier system of elections with huge increase in voting percentage. Post Bommai(1994), Rameshwar Prasad(2005), and Arunachal Pradesh case(2016) it is not an easy task for party in power to impose president rule. There are chances that article 356 may go at least in ‘sleep mode’ if not in ‘dead letter’ box. Therefore, the demand that article 356 should be deleted from the constitution. The supporters of federal principles forget that though situations have changed, new situations have arisen. In our country there are at least three States (Punjab, Jammu and Kashmir and Tamil Nadu) which passed almost unanimous resolution in favour of convicted terrorists. A few powerful political parties have shown sympathy for separatist organisations. For States some time, the narrow regional interest is more important than national interest. State titans some time foment fissiparous  tendencies on the basis of language, region, caste etc. These      are   anti-national   and   anti-democratic tendencies. If any  State  will  be engaged in  exciting emotion  on these grounds, ‘such provocation has to be           nipped in  the    bud’.  Therefore Dr Ambedkar always wanted a strong center. In a recent case of Union of India V Sriharan @ Murugan (decided on 2 December, 2015), the constitution bench has also reiterated that the original intent of the constitution is to give greater say to central government. Due to coalition politics the central government, most of the time, is dependent of regional titans, who are more concerned to their electoral issues even at the cost of national interest. Coalition, three constitution bench judgements referred above, more active judiciary, vibrant media and more effective civil society, therefore, are sufficient checks on the abuse of president rule.

The office of the President should also be more assertive to exercise their power under article 74(1) proviso where ‘President may require the Council of Ministers to reconsider such advice’. As the likelihood of misuse of article 356 is reduced to considerable extent, it should be retained to deal with exceptional situations. Ultimately our constitution is not federal in traditional sense but it is a Uni-federal constitution, ie a federal constitution with leading unitary features to suit exceptional situations. 

In case of Maharashtra the risk reward ratio to impose president rule does not favour the central govt. 

 

 One can see a discussion in Hindi here --

 https://www.youtube.com/watch?v=C5tDOHCU2dQ&feature=youtu.be

राष्ट्रीय (नई) शिक्षा नीति 2020 NATIONAL (NEW) EDUCATION POLICY 2020

 उच्च शिक्षण संस्थाएं न केवल ज्ञान के मंदिर हैं अपितु वे न्याय के अन्वेषण, अध्ययन और क्रियान्वयन की प्रयोगशाला भी हैं, जहाँ शैक्षिणिक न्याय प्रदान किया जाता है. सत्य असत्य की पहचान, नैतिक अनैतिक का परिचय, गलत सही का बोध, अधिकार और कर्तव्य की जानकारी, शिक्षक अपनी कक्षा में और अपने आचरण से देता है.

शिक्षण संस्थाओं से जुड़े लोग शिक्षा धर्म का पालन करते है. जैसे आग का धर्म है जलना और पानी का धर्म है शीतलता प्रदान करना वैसे ही शिक्षक का धर्म है शिक्षा देना, विद्यार्थी का धर्म है शिक्षा ग्रहण करना और इससे जुड़े लोग जैसे गैर शिक्षण कर्मचारी बंधु, अन्य शैक्षणिक अधिकारियों  का धर्म है इस आदान प्रदान में सहयोग करना. इस प्रकार शिक्षण संस्थाएं विशेषकर महाविद्यालय और विश्वविद्यालय ज्ञान, न्याय और धर्म तीनों का एक संगम निर्मित करते हैं. शासन और उसकी इकाइयों का धर्म है इस पूरे संव्यवहार के लिए  कानूनी आधार, उचित संरचना, उत्साहजनक  माहौल, उपयुक्त आर्थिक सम्बल और प्रभावी संवाद स्थापित करना.

नई शिक्षा नीति इसी शिक्षा धर्म के पालन का एक आवश्यक कदम है. यह ज्ञान, न्याय और धर्म की इस त्रिवेणी को स्वीकार करती है. यह शिक्षा संस्थानों और अध्यापकों को ज्यादा स्वायत्ता दे उसे  सशक्त करती है , आर्थिक दृष्टि से ज्यादा संपन्न बनाने का प्रस्ताव करती है, और प्रयोगमूलक बनाती है. इस कारण अनेक विद्वानों और शीर्षस्थ टिपण्णीकारों का भी यह मानना है कि  नई  शिक्षा नीति  भारत की युवा ऊर्जा को नवीन आयाम देगी, समृद्ध बौद्धिक सम्पदा और सांस्कृतिक  विरासत की वाहक बनेगी।  यह एक ओर ग्रामीण जगत की आवश्यकता को आत्मसात करेगी तो दूसरी ओर यह नीति विश्व पटल पर भारत को एक वृहद्  शिक्षा आंदोलन का प्रणेता बनाने की क्षमता  रखती है, जिसका लाभ विकसित और विकासशील दोनों देशों को मिलेगा.

NATIONAL EDUCATION POLICY AND LANGUAGE

NAVTEJ SINGH JAUHAR V. UNION OF INDIA(2018) : TWO YEARS OF HOMOSEXUALITY JUDGEMEMT

 

  Possible Impact of Navtej Singh Jauhar v. Union of India(Sept 6, 2018) [(2018) 1 SCC 791]:[1]A Futuristic Analysis

Anurag Deep, LLM (BHU) PhD (Gorakhpur)

Associate Professor, The Indian law Institute 

Democracy does not mean rule by majority only. While elections based on vote shares is an essential tool to decide who will move the chariot of a democratic country, democracy based on constitutionalism is judged by the enforcement of democratic values of equality, liberty and dignity of “we the people” and not “we the majority.”   These values enshrined in the preamble of the Constitution of India are not only educative or persuasive in nature but also decisive for present and future of India some time. People who display alleged deviant behaviour cannot be deprived of dignity.

Navtej Singh Johar case (popularly called as 377 or LGBT or homosexuality judgement) reflects the decisive dominance of constitutional values over intentions of the majority. Section 377 of the Indian Penal Code, 1860 criminalised “carnal intercourse against the order of nature with any man, woman or animal” irrespective of the conduct being consensual or non consensual, among adults or non adults and in private or in public. The constitutional validity of a part of this provision which made consensual sex under section 377 penal was challenged before the Delhi high court mainly by LGBT community in the case of Naz Foundation v. Government of NCT of Delhi.[2] The Division Bench led by AP Shah, J. (with S Murlidhar) declared the consensual part of section 377 as partially unconstitutional and violative of article 14, 15 and 21. The high court judgement was challenged before a Division Bench of the Supreme Court in the case of Suresh Kumar Koushal  v. Naz Foundation,[3] where the high court verdict was set aside. A review petition was also filed before the Supreme Court which was rejected. Then a curative petition was filed which was finally heard by a Constitution Bench in the case of Navtej Singh Jauhar. In a unanimous verdict, section 377 of IPC was partially declared as unconstitutional for violation of article 14, 15, 19 and 21. Suresh Kumar Koushal was overruled and Naz Foundation was restored. The judgement was unanimous where Deepak Misra, CJ (with A.M. Khanwilkar, J.), delivered the lead opinion to which RF Nariman, DY Chandrachud, Indu Malhotra, JJ. concurred in their a four separate opinion. 

 Consequently, alleged ‘unnatural sex’ between male to male, female to female and male to female has been decriminalized provided the conduct qualifies three elements; if it is between adults; it is voluntary and if it is in private. In other words, actus reus of unnatural sex is recognised as criminal in three situations, (i) any sexual conduct described under section 377 between non-adults (below the age of 18 years) even if it is voluntary and consensual, [maturity rule] (ii) If such conducts are forceful, non-consensual, or involuntary; they are still penal, [harm rule] (iii) Any sexual conduct with animal is still penal even if an adult is involved in it, [manifestly unnatural rule] 

The judgement of the Supreme Court received mixed reactions. While LGBTQ community was elated, intellectuals in general and media have hailed the decision as the restoration of democratic values. Legal community is sharply divided. Many politicians are generally neutral. Most of the religious leaders and those who feel very passionate for traditions and culture are disappointed by the judgement. There is a feeling that the Supreme Court has imported the western idea of liberty and sexual autonomy in Indian jurisdiction, which is not suitable for this country. This author has interacted with many critics of the judgement and found that most of the criticism is because of ignorance as to natural sexual orientation. Many among us used to believe that homosexual relationship was a departure from normal human conduct which was controllable like conspiracy, theft, or bigamy. We wrongly believed that any sexual attraction between same sexes is unnatural and is product of some devils desire while science established long back that there is no un-naturality in an attraction towards same sex. Most of us wrongly presumed that same sex attraction is a disease which can be cured or is something out of choice which can be checked by inflicting pain. Therefore, they rush to an incorrect inference that medical and legal measures are essential remedy. Since 1860 we religiously followed an uninformed hypothetical misplaced moral norm and supported criminalisation with closed eyes. That is why Nariman, J. In Navtej Singh Jauhar rightly directed the government to give wide publicity of the judgement so that the cloud of ignorance and wrong believes be removed as early as possible. I have doubts if the government has discharged this obligation of wide publicity because I have not seen enough government advertisement on media channels or hardly received any sms in my cell phone nor my friends have experienced differently.   

Possible impact of the decision may be manifolds. A few hypothetical cases may be taken as illustrations.

(I) H1 and H2 are Hindu male. They want to marry. They go to a temple with friends. The pandit declines marriage on the ground that Hindu marriage is a sacrament. Customary and traditional Hindu law permits marriage between two opposite sex only. Moreover, section 5(iii) of the Hindu Marriage Act, 1955 states that “ the bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage.” Bridegroom necessarily indicates a male and bride necessarily indicate a female. Therefore, neither custom, nor statute allows him to solemnize any marriage between same sexes. Aggrieved by such denial, H1 approaches the high court under article 226 for necessary directions or writ. H2 approaches the Supreme Court under article 32. They argue that pandit is duty bound to solemnize marriage and a writ of mandamus be issued. They also argue that this duty of pandit is a mandatory public duty. A pandit cannot deny this public function on the ground that both parties are of same sex. The Hindu Marriage Act, 1955 does not use the word male or female. They are also not covered under prohibited degrees or sapindas. They also move a contempt petition against pandit for willful disobedience and virtual denial of Navtej Singh Jauhar judgement. They also challenge the constitutional validity of section 5(iii) of the Hindu Marriage Act, 1955. They request the constitutional courts to read down section 5(iii) so that bridegroom or bride covers person of same sex also. Literal or dictionary meaning will negate the judgement. Therefore, new and liberal interpretation is required to give effect of the (377) judgement.

(II) H3 and H4 are female. They apply to get their marriage contracted under the Special Marriage Act, 1954. The concerned officer rejected their application referring section 4(c). According to this section, one of the necessary conditions is that “the male has completed the age of twenty-one years and the female the age of eighteen years.” H3 and H4 approach the Supreme Court under article 32 of the Constitution of India. They challenge the constitutional validity of section 4(c) of Special Marriage Act, 1954. They argue that this provision goes against the Constitution Bench judgement of Navtej Singh Jauhar as well as NALSA. NALSA has already recognised a third category. The provision violates articles 14, 15(1), 19 (1)(a) and 21. 

(III) Suppose H1 and H2 ( both males) gets married by pandit with Hindu rituals and saptpadi. After two month of marriage, H1 dies with self acquired properties. H2 applies for succession certificate. The authorities refuse granting a succession certificate because H2 is not female and not wife. The validity of the refusal order and related provision is challenged.

(IV) Suppose H1 and H2 (both males) after getting married want to purchase a property in the name of H2. H1 and H2 claim concession in registration of sale deed. Such concession in registration is available to female members of family. Registry department refuses to grant concession because H2 is not a female. H1 and H2 challenge the validity of the refusal order and related provision.

(V) H3 and H4 are female. They want to purchase a property in a residential society. The property owner refuses to sell because the owner does not want to sell property to a homosexual. H3 and H4 approach the police or District Magistrate. The owner states that he cannot sell the property because they are homosexuals. They also approach courts under article 226 and 32 for suitable remedy.    

(VI) H3 and H4 are female and are homosexual. They work in a shop. After three months, the owner discovers that H3 and H4 are homosexuals. The owner tells them to leave the job because they are homosexuals. What are the remedies available to them? Similarly, if H3 and H4 are tenant. After three months the owner asks them to vacate the flat as the room cannot be given to a homosexual. Is there any remedy available to them? 

(VII) H5 (a transgender who recognises herself as woman) alleges that A1 passes lewd remark against her, tries to touch inappropriately. A1 tries to “outrage her modesty.” H5 approaches a police station. The police says that section 354 of IPC is a gender specific provision and is applicable only when the victim is a woman. A1 is not a female but a third gender. Therefore a case under section 354 cannot be instituted. The police further state that section 354A of Indian Penal Code, though gender neutral, is intended for the same i.e. to use when the victim is a woman.[4] However, the High Court of Delhi has read the provision literally and on face value. They directed that police can proceed because section 354A is gender neutral.[5] Police has directed to lodge a case under section 354A. H5 also expressed the desire not to proceed further because her demand to lodge a case was fulfilled. Suppose H5 insists that the case be also instituted under section 354 because she is a woman or section 354 ought to be read into to incorporate third gender like me also.       

The executives and the courts will have to face similar situations for which positive steps need to be taken with liberal mind. Courts would be required to issue protection orders in some cases. Some of these may be easy to decide like, contempt or direction against Pundit (first hypothetical illustration)  but others would be hard cases. The Parliament needs to make suitable amendments to give consequential effect to 377 judgements. If such cases entreat for the jurisdiction of constitutional courts, the courts should not hesitate passing orders under article 226 or article 32/142 of the Constitution of India. A small but significant development is the Transgender Persons (Protection of Rights) Act, 2019 which was passed by the Parliament. Section 3(e) of the Transgender Act expressly prohibits “denial or discontinuation of, or unfair treatment with regard to, access to, or provision or enjoyment or use of any goods, accommodation, service, facility, benefit, privilege or opportunity dedicated to the use of the general public or customarily available to the public.” Section 3(g) further prohibits “the denial or discontinuation of, or unfair treatment with regard to the right to reside, purchase, rent, or otherwise occupy any property.” Section 18 (c) punishes anyone who “forces or causes a transgender person to leave household, village or other place of residence.” We need similar measures to be incorporated expressly for homosexuals.

 

---

[1] (2018) 1 SCC 791.

[2]  2009 SCCOnline Del 1762.

[3] (2014) 1 SCC 1.

[4] See, news item dated Dec 6, 2018,Available at : https://indianexpress.com/article/india/transgender-student-alleges-police-did-not-accept-her-complaint-moves-hc-over-sexual-harassment-5482281/, (last visited on Feb 11, 2019).

[5] See, news item dated Dec 21, 2018, available at https://indianexpress.com/article/delhi/police-cant-turn-away-transgender-persons-alleging-sexual-harassment-du-student-delhi-high-court-5503020/, (last visited on Feb 11, 2019).

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.