I have been a strong critic of the BJP government over several issues but I fully support the ordinance issued by the President of India yesterday on its advice criminalising instant triple talaq by Muslim husbands.
No doubt the Constitution bench of the Supreme Court in Shayara Bano vs Union of India had declared the practice illegal. But, as the Union law minister pointed out in a press conference in Delhi, despite this judgment, the practice has continued unabated and 201 cases of triple talaq were reported even after the SC judgment. So, there was urgent need to stamp out the barbaric practice and some fear had to be injected into the minds of Muslim men who thought they could just throw out their wives at their whims and fancies.
Some Muslims say that instant triple talaq is not recognised by Islam. If that were so, why did the All India Muslim Personal Law Board oppose its abolition in the Supreme Court? Are these not double standards and is this not hypocrisy?
The lives of thousands of innocent Muslim girls have been ruined by triple talaq and I have always called it a barbaric practice. Though disapproved, it had been held legal in India (Mulla’s Muslim Law). So, one had to welcome the Supreme Court verdict. And since the practice continued despite the verdict, one has to welcome the ordinance criminalising it. Barbaric feudal customs and laws like sati and triple talaq needed to be ruthlessly stamped out.
Those who object to this new law ask how a husband can support a wife if he is in jail? To this, the reply is that an amendment can be made in this new law to the effect that the property of the husband can be attached and sold for maintaining the wife and her children. So, it is not an insuperable difficulty. Also, some amendments were made in the original draft, and now the offence is compoundable and bail can be granted by a magistrate.
A criticism of this ordinance is that since the Supreme Court had already declared triple talaq illegal, if a Muslim husband pronounces triple talaq and abandons his wife, it will not be a divorce but a simple case of abandonment of the wife by the husband. Why then should the law be religion-specific? Why not punish all husbands who abandon their wives, no matter to which religion they belong?
In my opinion, that, of course, could have been done. But it is well settled that a law does not become bad merely because it is under inclusive. For instance, a law which prohibits use of loudspeakers near a hospital cannot be struck down merely because it does not prohibit the use of car horns or shouting near the hospital, or because it does not make the same prohibition against use of loudspeakers near schools.
Most laws are under inclusive and selective to some extent, and as the celebrated American judge, Justice Holmes pointed out, the legislature must be given some free play in the joints. The equality guaranteed by Article 14 of the Indian constitution cannot be understood in a doctrinaire manner. It does not mean that the same law should apply to all persons, for all persons are not by nature or by the circumstances in the same position. Therefore it is open to the legislature to choose degrees of harm. For the purpose of dealing with the complex problems that arise out of an infinite variety of human relations, the legislature cannot but proceed on some sort of selection or classification of persons on whom the legislation is to operate.
Thus, in State of UP vs Deoman Upadhyaya the Supreme Court observed:
In considering the constitutionality of a statute on the ground whether it has given equal treatment to all persons similarly circumstanced, it has to be remembered that the legislature has to deal with practical problems ; the question is not to be judged by merely enumerating other theoretically possible situations to which the statute might have been, but has not been, applied. A law which makes provision for cases where the need is most felt cannot be struck down merely because there are other instances to which it might have been applied.
Instant triple talaq was a problem unique to Muslims and the lives of thousands of innocent Muslim girls were ruined by this inhuman law. So, if the ordinance strikes hard on this feudal practice among Muslims, no exception can be taken to it merely because husbands in other religions have not been addressed by the same law.
Apart from the above, I am of the opinion that it is time now to enact a uniform civil code in India, as prevalent in most modern countries. This will put an end to feudal and regressive practices among all of India’s religious communities. Law reflects social customs prevalent in society at a particular stage of its historical development. So, as the society changes, the law too must change.
Markandey Katju is a former judge of the Supreme Court of India.