Chinmaya IAS Academy – Current Affairs Chinmaya IAS Academy – Current Affairs
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The triple talaq ordinance is likely to fail the test of judicial scrutiny on several grounds An ordinance is a constitutionally sanctioned ad hoc mechanism by which critically urgent situations are met when Parliament or a State Assembly (as the case may be) is not in session and the government cannot afford to wait till it reassembles for fear of things becoming unmanageable if not legislatively redressed immediately. Last week, the Union Cabinet, on the presumption that direful conditions prevail in the country due to the pervasiveness of instant triple talaq, convinced the President to promulgate the Muslim Women (Protection of Rights on Marriage) Ordinance, 2018. In the words of Union Law Minister Ravi Shankar Prasad, the “overpowering urgency and compelling necessity” that gave birth to this ordinance was that talaq-e-biddat continued unabated despite the Supreme Court’s order last year. The fact is, excluding isolated cases, there is no documentary evidence to show that the incidence of instant triple talaq had reached alarming levels to warrant the hasty promulgation of a presidential ordinance. And as Article 123 of the Constitution requires the President to ensure the existence of circumstances “which render it necessary for him to take immediate action”, the Centre, in the interest of a fair debate, must make public the evidence presented to the President. Poorly conceived and drafted Nevertheless, the triple talaq ordinance is so poorly conceived and drafted that it is bound to fail the test of judicial scrutiny on several grounds. First, it could collapse under the weight of its internal contradictions. Section 2 (b) of the ordinance defines talaq-e-biddat as any form of talaq “having the effect of instantaneous and irrevocable divorce” but lays down in Section 3 that such a pronouncement in any form whatsoever “shall be void and illegal”. No explanation is offered as to how the pronouncement can be “void” and have “the effect of instantaneous and irrevocable divorce” at the same time. Besides, Section 4 mandates a three-year imprisonment and fine for this void act, and Section 7 declares it a cognisable and non-bailable offence. This fixation with talaq-e-biddat, even when it does not dissolve the marriage, is baffling.
