Justice Markandey Katju
Many people have criticized the recent Ordinance issued by the President of India Ram Nath Kovind criminalizing the practice of triple talaq among Indian Muslims. Triple talaq was the practice by which a Muslim husband could simply say ‘talaq’ three times orally or in writing to his wife to end the marriage.
Some time back the Indian Supreme Court in Shayaro Bano vs Union of India (https://en.wikipedia.org/
However, as mentioned by Indian Law Minister Ravi Shankar Prasad in a press conference recently, despite this judgment, over 200 cases of triple talaq were reported even after the verdict. Hence, the Indian government decided to make it a criminal offense. Under the new Ordinance, a person who pronounces triple talaq may be sent to jail for up to three years and be also liable to pay a fine.
Some critics of this Ordinance say that when the Supreme Court held triple talaq to be illegal, there was no need for a law criminalizing it.
The answer is that a section of Indian Muslims believe that their law is sharia and that they cannot accept court verdicts. Hence, fear had to be put into the minds of such people. The law as drawn up the legislature or as declared by the courts is above sharia and has to be accepted by all.
Others ask that if the husband is sent to jail who will provide for the wife and children? The answer is that an amendment can be made in the law to have the husband’s property attached and sold to provide for them. It is not an insuperable difficulty.
Yet other critics say that since the Supreme Court had already declared triple talaq to be illegal, the Ordinance really criminalizes abandoning the wife. If that is so, why should the law be religion-specific? Why not punish all husbands who abandon their wives? why only Muslims?
The answer is that a law cannot be declared unconstitutional merely because it does not include everyone. For instance, a law prohibiting the use of a loudspeaker near a hospital cannot be struck down as violating the equality provision in the constitution merely because it does not prohibit the use of car horns or shouting near hospitals, or because it does not make a similar prohibition for use of loudspeakers near schools. Most laws are to some extent selective and underinclusive.
As the celebrated judge of the US Supreme Court Justice Oliver Wendell Holmes pointed out, the government must be “allowed a little play in the joints.” The legislature can see degrees of harm, and deal with those selectively. The barbaric practice of triple talaq was found only among Muslims, and so the Ordinance aims at crushing this inhuman practice among them.
[Justice Markandey Katju is a former judge of India’s Supreme Court. The views expressed are his own].