Author: Aditi
Publication: Opindia.com
Date: December 19, 2018
URL:      https://www.opindia.com/2018/12/shashi-tharoor-alleges-the-triple-talaq-bill-violates-the-constitution-here-is-how-he-is-wrong/

The Muslim Women (Protection of Rights on Marriage) Bill, 2018 popularly known as the Triple Talaq Bill, was introduced in the Lok Sabha on Monday amid opposition from several parties. Congress MP Shashi Tharoor opposed the Bill saying that it was targeting a certain religion and therefore is unconstitutional under Article 15 and 16.

“An attempt at creating a class-specific legislation on the grounds of religion. Instead of focusing on the larger issue of mistreatment and desertion of wives and dependents, which affects all communities, this bill is couched in terms of a specific religion. Therefore it is a violation Article 15 and 16 of the Constitution,” he said. “The bill has no procedural safeguards to prevent its misuse. It is therefore manifestly arbitrary, and therefore is a violation of Articles 14 (Equality before law) and 21 (Protection of life and personal liberty) of the Constitution,” he further added.

“And finally, the Parliament does not have the legislative competence to enact any law which is inconsistent with Part III of the Constitution in light of Article 13(2). So I do believe that the bill is a misconceived bill that should not be brought to the House. I do not believe that Parliament has the competence to enact such a bill,” he said.

Law Minister Ravishankar Prasad argued in the favour of the Bill that “despite the Supreme Court’s order making Triple Talaq [instant divorce] illegal, there is rampant use of instant triple talaq against women. We have discussed and thought about the issue and decided to bring the bill. There is a penal provision in the bill but we have improved it.”

Tharoor has termed the Bill a ‘class legislation” and hence a violation of Article 14. Article 14 prohibits improper discrimination by conferring particular privileges or imposing liabilities on an arbitrarily selected class of persons. However, the provision permits reasonable classification for the purpose of achieving specific ends. The Supreme Court has in a number of cases laid down the criteria to determine whether a piece of legislation is class legislation or not. The test says that-

1. The classification must be based on intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group.

2. The differentia must have rational relation with the object to be achieved by the legislation.

Here in the case of the Triple Talaq Bill, the Supreme Court set aside the practice of Triple Talaq declaring it unconstitutional. It also directed the Government to consider an appropriate legislation with reference to Talaq-e-Biddat or Tripple Talaq.

The Bill was drafted following the directions of the Supreme Court to address the social evil of Triple Talaq which ruined the lives of women Muslim women for years. Here the class concerned is an already existing class i.e. the Muslim community and the object to be achieved is the abolition of the evil practice of Triple Talaq prevalent in the community. So the legislation is not at all creating a new class, it is only addressing a problem pertaining to an already existing class. Therefore Tharoor’s argument of calling the Bill as a class legislation does not hold water.

So far as the question of the Bill being violative of Articles 15 or 16 is concerned, for the reason of being discriminatory on the ground of religion, it is definitely not so. In a case where a problem pertains to a certain community, the legislation seeking to address the problem will inevitably apply to the community. An example of such a legislation can be the Bengal Sati Regulation 1829 which addressed the social evil of Sati (immolation of a Hindu widow on the funeral pyre of her husband) and made it illegal. While Article 15 prevents gender discrimination, it also empowers the legislature to make special provision for women and children. The Triple Talaq Bill being an effort in the direction of the empowerment of Muslim women has the support of this provision. Article 16 on the other hand, does not come into the picture at all as it refers to equality of opportunity in matters of public employment.

Tharoor has also said that there was no need of criminalising an act which is already null and void by virtue of the judgment of the court. As was mentioned in the Preamble to the Triple Talaq Ordinance 2018, that despite the Supreme Court declaring the practice of Triple Talaq as unconstitutional, the cases of Triple Talaq are still continuing unabated. In such a situation, it becomes necessary to instill the fear of law in the hearts of offenders because of whom the Muslim women continue to suffer. There were reports on how Muslim women are still being humiliated at the hands of their husbands who continue to use triple talaq as a weapon of subjugation against them even after the Muslim Women (Protection of Rights on Marriage) Bill 2017 was introduced.