PIL in Madras HC against triple talaq ordinance
Chennai, Oct 5 : A PIL has been filed in the Madras High Court against the ordinance that makes the practice of instant 'triple talaq' a punishable offence, contending that it violated the Constitution and was discriminatory.
When the public interest litigation petition by Hussain Afroze, an advocate of the high court, came up for hearing, a bench comprising justices S Manikumar and P T Asha directed the counsel, who appeared for the Centre, to get instructions and posted it to October 22.
The petitioner challenged clauses 4-7 of the Muslim Women (Protection of Rights on Marriage) Ordinance, promulgated on September 19, and sought to declare the ordinance as ultra vires.
He also sought an interim injunction on the ordinance.
Already, the Kerala-based Muslim organisation Samastha Kerala Jamiyyathul Ulama has moved the Supreme Court challenging the ordinance.
Instant triple talaq, also known as talaq-e-biddat, is an instant divorce whereby a Muslim man can divorce his wife by pronouncing 'talaq' three times in one go.
Under the ordinance, instant triple talaq has been declared illegal and punishable with a jail term of three years for the husband.
In the present PIL, the petitioner has submitted that under the Muslim Personal Law, a marriage was a civil contract and this position has been recognised under the Shariat Act 1937 and in various judicial pronouncements.
Referring to the apex court's judgement in the Shayara Bano case on triple talaq, he said the court in its majority judgment emphatically declared the practice was invalid and the marriage does not stand dissolved on its pronouncement. The judgement is the law of the land as its stands today.
The pronouncement of triple talaq is otiose, he said, adding there was no legal justification for imposing a punishment upon an utterance which has no legal validity and does not inflict any injury -- legal or otherwise.
The petitioner said the government argued that the ordinance was being brought since the practice of triple talaq continued despite the Supreme Court order holding it unconstitutional and invalid.
Clause 3 of the ordinance invalidates triple talaq whereas Clause 4 stipulated penal consequences of up to three years imprisonment.
For an act to become a crime, there must be an injury caused to an individual or to the society at large, he said, adding since triple talaq does not dissolve a marriage, the imposition of punishment under Clause 3 of the ordinance "smacks of mala fide and arbitrariness."
He further submitted that since Muslim marriage was a contract, the law of the land would stipulate damages as relief in the event of any breach.
Hence, transforming a civil dispute into an act of criminality and with penal consequences on the people who profess a particular religion was illegal and discriminatory, he contended.
The ordinance was Muslim-centric and clearly hit by the provisions of Article 14, 15 of the Constitution, he submitted, seeking it be quashed.
In a landmark verdict, the Supreme Court on August 22 last year had set aside the 1,400-year-old practice of instant 'triple talaq' among Muslims on several grounds, including that it was against the basic tenets of the Quran and violated the Islamic law Shariat.
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SC refuses to entertain plea against deletion of names from WB voter list, terms it ‘premature’
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New Delhi (PTI): The Supreme Court on Monday declined to entertain a plea by a group of 13 people seeking its intervention in the deletion of their names from the voter list during the Special Institutional Revision (SIR) in West Bengal, where polling for the first phase of the assembly election will be held on April 23.
A bench comprising Chief Justice Surya Kant and Justice Joymalya Bagchi termed the petition "premature", directing the aggrieved parties to approach the established appellate tribunals instead.
"Since the petitioners (Quaraisha Yeasmin and others) have already approached the appellate tribunals… in our considered view, the apprehensions expressed in the petition are premature. If the plea is allowed, then necessary consequences will follow,” the bench said in its order, adding that it has not expressed any views on the merits of the plea.
The plea alleged that the Election Commission was summarily deleting names without following due process, and that appeals against these deletions were not being heard in a timely manner.
The Chief Justice of Calcutta High Court has set up as many as 19 tribunals headed by former HC chief justices and judges to decide appeals against deletions of names of persons from the voters’ lists.
Senior advocate D S Naidu, appearing for the poll panel, informed the court that there are approximately 30 to 34 lakh appeals currently pending. "Every tribunal now has over one lakh appeals to handle," the bench said.
The petitioners’ counsel argued that the EC had failed to place necessary orders before the relevant judicial authorities and that the "freezing date" for the electoral rolls should be extended.
"If I am not allowed to argue, then what is the use? Will these appeals be decided within a timeframe or just kept extending?" the counsel asked.
Justice Bagchi, during the hearing, referred to the sanctity of the electoral process and said the right to vote is not merely a constitutional formality but a "sentimental" pillar of democracy.
"The right to vote in a country you were born in is not just constitutional, but sentimental. It is about being part of a democracy and helping elect a government," he said.
He, however, said that the tribunals, manned by former judges, cannot be overburdened by fixing the timelines for adjudications.
"It is not the end justifying the means, but the means justifying the end," Justice Bagchi said.
"We need to protect due process rights. The voter should not be sandwiched between two constitutional authorities," he said, adding that it would not interdict the election process at this stage.
Justice Bagchi noted that the Calcutta High Court Chief Justice had already formulated the manner and mode for appeals, which began on Monday.
"Unless and until an enormous number of voters are excluded or it materially affects the election... the election cannot be cancelled," the bench said, adding that judicial intervention is intended to "promote elections, not interdict them."
The CJI emphasised that the petitioners must exhaust their remedies before the appellate tribunals.
Assembly elections in West Bengal will be held in two phases on April 23 and 29, and votes will be counted on May 4.
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