The Supreme Court ruling (though not unanimous) that came in August last year rendered that the utterance of the word talaq, thrice, in one sitting, by an estranged Muslim husband would not constitute a valid and legally permissible divorce, in so far as it pronounced it ‘Unconstitutional’ as well as ‘Un-Islamic’. The majority opinion on the bench of the Supreme Court that declared the Triple Talaq ”Unconstituional” in August, did NOT recommend legislation on the matter, since it was striking it down. In fact, it was the dissenting opinion of Chief Justice Khehar and Justice S Abdul Nazeer who believed that the Supreme Court had no power to strike down instant triple talaq since it was not codified and statutory law but ‘personal law’, while acknowledging, in no uncertain terms, that it was discriminatory, called instead for an injunction of six months on the practice and goaded the legislature to enact a law on this. But as we know, the dissenting opinion did NOT hold, and the talaq e biddat was indeed struck down by a split 3-2 bench opinion. That much celebrated decision by the SC bench did NOT direct the legislature to further enact anything, having given Muslim women their due. But the minority opinion provided by the dissenting Chief Justice JS Khehar and subscribed also by Justice S Abdul Nazeer, albeit in good faith, at that point for the prospect of future legislation by the Parliament on this issue was the window this government was waiting for to smuggle in their Islamophobic agenda and go for what is a totally unreasonable legislative overkill. The Modi government is now, inadvertently, actually siding with the minority dissenting opinion (two of the five), against the SC verdict, expanding the scope of criminal law, to badger Muslims more – to lynch more Muslim men. The persecution of Muslim men, no longer incidental but systematic, is very much state policy. So, the dissenting opinion that didn’t hold, is now the basis for the bulldozing of an Islamophobic Muslim Women (Protection of Rights on Marriage) Bill 2017 through parliament!
What is fitting to be the breadth of criminal law? Responses to this are exceedingly inconclusive. Contravention of a civil regulation does not license condemnation or punishment. Those who violate civil regulations are accountable to bear some damages for what they have done, undoubtedly, but they are not bound to be punished, unlike criminal convictions. As regards civil regulation, condemnation or punishment do not entail. Contravening the law only leaves offenders liable to be affected proportionately to their infraction, so citizens are given commensurate protection against being made to suffer greatly, even provided the liberty citizens have to avert punishment.
This unexpected producing of the Bill will be resented altogether by the Muslim community, principally as it is being “bulldozed” through Parliament before stakeholders have had time to consider it. The Government has not made provision for sufficient time to equip Muslim women to reflect on this Bill which affects them so vitally. None of the parties for whom, in reality, this Bill has implications for, have asked for it. They were quite satisfied with the judgement that came in August. So, why this Muslim Women Bill? Why now? The government’s notice of intention to introduce the Bill, as well as not providing time for anyone outside to consider it, are both suspect. Nothing seems more misguided and myopic than the introduction of the measure at this time. It is neither logical nor required.
It is apparent that the Government then, in defiance of the Constitution, continued to bulldoze, through Parliament, the Muslim Women (Protection of Rights on Marriage) Bill 2017 that, in its nature, discriminates against Muslim men. This legalises and rationalizes scapegoating and collective punishment of Muslim men. This Bill institutionalizes the culture of collective punishment and the entire Muslim community will suffer from it. The raison d’être of such a Bill will be to inflict punishment on Muslims collectively, unfairly. So, it is the same institutionalisation of discrimination and intimidation that Muslims in this country have suffered in the past and continue to suffer. This Bill is retrogressive from the August ruling, as also discriminatory and dangerous. It is not done in good faith. It is apparent that the Government then is bulldozing this Bill in defiance of the Supreme Court, not in observance of its orders. The Government is flagrant in its disregard of the decision that SC came up with. The Modi government is displaying an inordinate interest in the venture of the Bill with the law and justice minister Ravi Shankar Prasad even claiming that despite the Supreme Court setting aside talaq-e-biddat as unconstitutional, it has not acted as any deterrent. The BJP government made use of its majority in Parliament to bulldoze this legislation through Parliament.
The first logical objective is to differentiate between the purpose of the civil law from that of criminal law. Taking into considerations, that agents who suffer harm are able to take actions under the civil law to recover and indemnify from those at fault, and access justice at low cost, the criminal law could be perceived as excessive piling on by government. It should not be ignored how the decision to criminalize the pronouncement of instant triple talaaq proceeds purportedly under a welfare criterion as opposed to other rationales for criminalizing.
What is required is perhaps a refining of the criminal-civil separation, which has come to be steadily more incoherent. But of considerable anxiety is the civilizing, ethicizing of the criminal law: the proclivity to criminalize behaviour that the community, at large, does not perceive as condemnable / criminal. It is completely misplaced in a criminal apparatus. But, indubitably, access to added severe sanctions is not the rationalization behind many arguing for the expansion of the criminal sanction to these cases. Harsher injunctions could be delivered within the civil system. The rationalizations behind criminal expansion often concentrate on the capacity for moral stigmatization that criminal incrimination brings that civil accountability does not. It is understandable that stigmatization can have a considerable effect in moulding the conduct of possible offenders. But this purported adoption of stigmatization is likely to be unavailing since it antagonizes rather than cultivates / educates the moral canons of the community. Putting into effect a statute that criminalizes a particular conduct does not by and of itself lead to that conduct to be seen as immoral. Law does not engender paradigms but only serves as a helper in the process by which consensuses are manufactured. Laying down a regulatory transgression as a “crime” is not per se anticipated to do much to bring about people to attribute stigma to liability for the transgression. Setting down regulatory violations as “crimes” renders it even less likely that citizens will take the ensuing liability as testimony that moral condemnation is merited.
Contrary to being an independent and respected source of moral certainty, laws of this sort come to be mere paralogizing travesty.
More significantly, the stretching of criminal law to crack down on these civil violations is also damaging. The further criminal law’s stigmatizing effect is pushed to be implemented on non-cognizable offence / conduct, the further the stigmatizing effect is impeded to be applicable. With every increased non-blameworthy usage, the connotations of “criminal” culpability, becomes cumulatively less attached to blameworthiness and cumulatively less able to elicit condemnation. If relatively minor violations are criminalized, citizens will increasingly intuit that the criminal law is being wielded as an apparatus of a powerful, majoritarian government to intercede violatively into the lives of minority populations. Extending the criminal law a long way off from perceived criminal behaviour weakens the stigmatizing effect that that BJP government’s proposed expansion professedly looks to enlist to begin with. Criminal conviction for a non-cognizable violation erodes not just the implications of accountability imposed for those offenses but also the condemnatory mandate for all criminal convictions.