In a detailed analysis issued the day after the Bill was tabled in the Uttarakhand State Assembly on February 6, women’s groups from the state have sharply condemned a Bill that criminalises constitutional behaviour, and introduces moral policing is unacceptable. Besides the analysis states that the the Bill which is predominantly a cut paste from the Hindu family laws, does not remove inequalities in family across the spectrum of religious and secular laws, but criminalises the Muslim minority and autonomous, consensual behaviour of adults.

Rejecting the form the Bill is in, in toto, the women’s groups have demanded that it is sent to the Standing Committee for further deliberations. The brief analysis has been signed by Uma Bhatt, Malika Virdi, Chandrakala, and Nirmala Bisht, Kamla Pant, Basanti Pathak from the Uttarakhand Mahila Manch.

“On a perusal of the draft Uniform Civil code (UCC) Bill presented at the Uttarakhand Legislative Assembly, it is apparent that the rhetoric that the Chief Minister of Uttarakhand and his Government were mouthing has been actualized through the draft. Therefore, while seemingly being uniform across religions, the Bill is actually criminalising and regulating constitutionally acceptable behaviours, like adult consenting cohabitation, called “live in’, reducing autonomy and choice, which the women in this country have attained through concerted , inside the homes and on public platforms. Moral policing measures have been introduced in this regard.

“What is shocking is that this law is applicable even to those living outside Uttarakhand, apart from being applicable on all residents of the state including those who do not have a domicile. Interestingly there is a glaring silence about the rights of queer and transgender persons within a family and the rights of transgender and same sex persons to marry.

“Majorly it seeks to introduce changes in the provisions that are perceived as defective in the Muslim law, such as unequal inheritance, polygamy and the practice of halala ( by which a person can only remarry his divorced spouse after she has married someone else, consummated the marriage and thereafter obtained a divorce).  In one sense the Bill has terminated the application of Muslim family law and has further criminalised the Muslim man and woman.

“Ironically, the Bill has not incorporated positive and progressive aspects of Muslim law such as the compulsory payment of mehr by the husband to the wife which provides financial security of the wife,nikahnama (marriage contract) which allows for the spouses to add legally binding conditions that are mutually acceptable, and a  1/3 limit rule for willing away property.  Had the intention of the Bill genuinely been to bring about gender justice, such provisions could have been extended to women of all communities.

“The discrimination that Hindu women face in the family, and which stands unaddressed in the various family laws prevalent in the country, be they the religious personal laws or the Special Marriage Act have not been addressed at all.

“So also, there is a total silence on addressing the issues of discrimination against women within the Hindu Joint Family or rather the provisions are so drafted that they cannot be applied to the Hindu Joint Family and coparcenary property owned by it.

“The 2005 amendment to the Hindu Succession Act, provided daughters right to coparcenary property on par with sons, but excluded other female members of the HJF such as widows, wives and mothers. The Hindu Joint Family is premised, even after the 2005 amendment , on descendants (male and female) from a common male ancestor. These glaringly patriarchal and gender discriminatory provisions have been left untouched by the Bill.

“The Bill is completely silent on the application of Christian family law and Parsi family law as well as other religious communities, which, apart from being legally untenable, means that these personal laws also have been terminated in the state without any consultation with the said communities.

“The five Tribal communities of the state have been excluded, giving preference to customary law, however, other communities that work with customary law cannot seek intervention there as it has been set aside and termed illegal.

“The critical aspect of any law is that every stakeholder in the law should be able or should have the space to access the law. In the prevailing climate where minorities are being targeted, it will make it difficult for women from minority communities to access any uniform law, howsoever progressive it is made, (which is not the case in this retrograde law), when its basic objective is to show one upmanship over minorities, especially Muslims.

“To illustrate how the Code Bill follows the Hindu law template, it is important to note that the existing realities that make equal provisions of inheritance in the Hindu law unrealisable, have not been factored. For instance, the reality that property is by and large purchased in the name of the man, is not factored. This means that after the male expires, the property will be inherited by his parents (but not by his wife’s parents), along with his Class I heirs, in the same share. That, according to the Bill, her property will also be inherited by her husband along with her parents as Class I heirs, has no meaning in a society that by and large does not purchase property in the name of females.

“In other ways the structural discrimination against Hindu females has been kept intact. The concept of matrimonial property has not been introduced, despite the Law Commission of India’s recommendation in this regard. Similarly, the positive provisions from the Muslim law or the Goa law, such as the restrictions on making a will to render equal inheritance rights to naught, have not been considered in the framing of this law.

“The Bill has retained restitution of conjugal rights as a matrimonial remedy at a time when its constitutional validity has been challenged in the Supreme Court. This is a regressive provision with colonial origin, that legally compels unwilling spouses to live together in the name of consortium, companionship and conjugality.  In the case of a wife, she may be subjected to rape and forcible pregnancy by the husband.

“Criminalising the violation of compulsory registration of marriage without a provision in the law for creating awareness and facilitating documentation, in effect will mean that people will be rendered law violators for no fault of their own, and be subject to penalties. In a state with poor socio- educational status of women, the ramifications are bound to be more adverse for women.

“There is a function creep in this law, in that this Bill is intended to target political dissenters and those who are minoritised, which includes, the minoritised with the Hindu community as well. Therefore, in the guise of establishing non-registration of a live-in relationship, the State will have the power to enter the home and surveil. Criminalisation of adults in consensual live-in relationships, who may have deliberately decided to avoid marriage and its legal consequences, appears to be overshadowing other intentions.

“Fundamental rights are either denied or taken away by this law. Even the existing provision of the right of women to reside in their matrimonial homes, has been taken away. Thus rights to equality, right to live and livelihood and to live with dignity, right to freedom of speech and expression, freedom of conscience and right to freely profess, practice and propagate religion, have become casualties under this Bill.

“There is also total silence on areas pertaining to custody, guardianship and adoption of children, which are critical areas around which there has been much gender-based discrimination.

“No special provisions have been brought in to safeguard the rights of queer and transgender persons within a family and the rights of transgender persons to marry. Similarly, same sex marriages are not envisaged or recognised under the draft Code. The concerns addressed by persons with disability that required special provisions to safeguard the rights are also not addressed in the Bill.

“In this form, this Bill should be referred to a Standing or a Select Committee for wider deliberations, as the Bill, which has much import for the people of Uttarakhand and also for the rest of India as a precedent setter, needs to be discussed and people’s, including diverse women’s, queer and trans communities’ responses from Uttarakhand need to be taken into account.”

Related:

Uniform Civil Code or Gender Justice?

The Implementation of a Uniform Civil Code

Muslim women need not move court to register divorce by talaq: Kerala High Court

The post Uttarakhand: Women’s groups reject UCC say provisions are unconstitutional, criminalises constitutional behavior, Muslims appeared first on SabrangIndia.

Photo credit: Indian Express

“It is not for a court to determine whether religious practices were prudent or progressive or regressive”
– Justices JH Khehar and S Abdul Nazeer

“What is bad in theology is also bad in law”
– Justice Joseph Kurian

“Triple talaq is manifestly arbitrary and therefore violative of the fundamental right contained under Article 14”
– Justices Rohinton Fali Nariman and Uday Umesh Lalit

By a majority decision of 3:2, a constitutional bench of the Supreme Court today declared the practice of instant triple talaq among Muslims as “manifestly arbitrary”, “void”, “bad in law” and “unconstitutional”.

Justices JH Khehar (chief justice) and S Abdul Nazeer held that the practice of triple talaq (talaq-e-biddat) enjoyed the status of a fundamental right as it came under protection of Article 25 of the Indian Constitution (Right to Freedom of Religion).

Justice Kurian Joseph set aside the practice on the ground that it was against the teachings of the Quran.

Justices RF Nariman and UU Lalit held that it violated Articles 14 (Right to Equality) of the Constitution.

Urging Parliament to enact a law to deal with the issue, Justice Khehar barred Muslim men from pronouncing instant triple talaq for next six months within which time he implored the political parties to shed their difference and bring in a new law. He added that once the legislation process is initiated, the bar on instant triple talaq will continue till the enactment, failing which the injunction will cease to be operative.

The major political parties have welcomed the verdict saying it will empower Muslim women.

 “Judgment of the Hon’ble SC on Triple Talaq is historic. It grants equality to Muslim women and is a powerful measure for women empowerment,” Prime Minister Narendra Modi tweeted.

Here, in summary, are the justices in their own words, culled out of the 395 page judgment:

Justices JH Khehar and S Abdul Nazeer

“It is not for a court to determine whether religious practices were prudent or progressive or regressive”.

“Despite the decision of the Ahmed Rashid Case on the subject of talaq-e-biddat [triple talaq] by the Privy Council, the issue needs a fresh examination, in view of the subsequent developments in the matter…

“All the parties were unanimous that despite the fact of talaq-e-biddat being considered sinful, it was accepted among Sunni Muslims belonging to the Hanafi school, as valid in law, and has been in practice among them…

 “It would not be appropriate for this court to record a finding whether the practice of talaq-e-biddat is, or is not, affirmed by ‘Hadiths’, in view of the enormous contradictions in the ‘hadiths’ relied upon by the rival parties…

“Talaq-e-biddat is integral to the religious denomination of Sunnis belonging to the Hanafi school. The same is part of their faith, having been followed for more than 1400 years, and as such has to be accepted as being constituent of part of their ‘personal law’…

“The contention of the petitioners, that the questions/subjects covered by the Muslim Personal Law (Shariat) Application Act, 1937, ceased to be ‘personal law’, and got transformed into ‘statutory law’ cannot be accepted and is accordingly rejected…

“Talaq-e-biddat does not violate the parameters expressed in Article 25 of the Constitution. The practice is not contrary to public order, morality and health. The practice also does not violate Articles 14, 15 and 21 of the Constitution, which are limited to state actions alone…

“The practice of talaq-e-biddat being a constituent of ‘personal law’ has a stature equal to other fundamental rights, conferred in Part III of the Constitution. The practice, therefore, cannot be set aside, on the ground of being violative of the concept of constitutional morality, through judicial intervention…

“Reforms in ‘personal law’ in India, with reference to socially unacceptable practices in different religions have come about only by way of legislative intervention. Such legislative intervention is permissible under Articles 25(2) and 44 read with Entry 5 of the Concurrent list, contained in the Seventh Schedule of the Constitution. The said procedure alone needs to be followed with reference to the practice of talaq-e-biddat, if the same is to be set aside…

“International conventions and declarations are of no avail in the present controversy, because the practice of talaq-e-biddat is part of ‘personal law’ and has the protection of Article 25 of the Constitution…  

“It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not how another would like it to be (including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional courts to protect ‘personal laws’ and not to find fault therewith…

“The judiciary must therefore always exercise absolute restraint, no matter how compelling and attractive the opportunity to do societal good may seem…

“We understand that it is not appropriate to tender advice to the legislature to enact law on an issue. However, the position as it presents in this case seems to be a little different… The stance adopted by the Union of India supports the petitioners; cause. Unfortunately, the Union seeks at our hands what truly falls on its own…

“We would therefore implore the legislature to bestow thoughtful consideration to this issue of paramount importance. We would also beseech political parties to keep their individual political gains apart, while considering the necessary measures requiring legislation…

“Till such time as the matter is considered, we are satisfied in injuncting Muslims husbands from pronouncing talaq-e-biddat… The instant injunction in the first instance will be operative for a period of six months and a positive decision emerges towards redefining talq-e-biddat as one or alternatively if it is decided that the practice of ‘talaaq-e-biddat’ be done away altogether, the injunction will continue, till legislation is finally enacted. Failing which the injunction will cease to operate.    

Justice Joseph Kurian:
“What is bad in theology is also bad in law”

“What is bad in theology was once good in law but after Shariat has been declared as the personal law, whether what is Quranically wrong can be legally right is the issue to be considered in this case. Therefore the simple question that needs to be answered in this case is whether triple talaq has any legal sanctity…

“This court in Shamim Ara v. State of UP and Another has held, though not in so many words, that triple talaq lacks legal sanctity. Therefore, it terms of Article 141, Shamim Ara is the law that is applicable in India…

“[Quranic verses on divorce are] instructive verses and do not require any interpretation. They are clear and unambiguous as far as talaq is concerned. The Holy Quran has attributed sanctity and permanence to matrimony. However, in extremely unavoidable situations, talaq is permissible. But an attempt at reconciliation and if it succeeds, then revocation are the Quranic essential steps before talaq attains finality. In triple talaq, this door is closed, hence, triple talaq is against the basic tenets of the Holy Quran and consequently it violates Shariat…

“The above view has been endorsed by various High Courts, finally culminating in Shamim Ara by this court which has since been taken as the law for banning triple talaq… It has to be particular noted that [the] conclusion by the bench in Shamim Ara is made after ‘respectful agreement’ with Jiauddin Ahmed (Guwahati High Court] that ‘talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters – one from the wife’s family and the other from the husband’s; if the attempts fail, talaq may be affected’…    

“Shamim Ara has since been understood by various high courts across the country as the law deprecating triple talaq as it is opposed to the tenents of the Holy Quran. Consequently, triple talaq lacks the approval of Shariat…

“Therefore, I find it extremely difficult to agree with the learned chief justice that the practice of triple talaq has to be considered integral to the religious denomination in question and that the same is part of their personal law….

“[T]his court has done its part in Shamim Ara. I expressly endorse and re-iterate the law declared in Shamim Ara. What is said to be bad in the Holy Quran cannot be good in the Shariat, and in that sense, what is bad in theology is also bad in law…”

Justices Rohinton Fali Nariman and Uday Umesh Lalit:

“Triple talaq is manifestly arbitrary and therefore violative of the fundamental right contained under Article 14 of the Constitution”

“Triple talaq alone is the subject matter of challenge – other forms of talaq are not. The neat question that arises before this court is, therefore, whether the 1937 Act [Muslim Personal Law (Shariat) Application Act, 1937) can be said to recognize and enforce the rule of law to be followed by the courts in India and if not whether Narasu Appa (Supra) which states that personal laws are outside Article 13(1) of the Constitution is correct in law…

“Marriage in Islam is a contract, and like other contracts, may under certain circumstances, be terminated. There is something astonishingly modern about this – no public declaration is a condition precedent to the validity of a Muslim marriage nor is any religious ceremony deemed absolutely essential, though they are usually carried out…
“[T]he 1937 Act is a pre-constitutional legislative measure which would fall directly within article 13(1) of the Constitution of India…

“[A]ll forms of talaq recognized and enforced by Muslim personal law in India are recognized and enforced by the 1937 Act. This would necessarily include triple talaq when it comes to the Muslim personal law applicable to Sunnis in India. Therefore it is extremely difficult to accept the position of the All India Muslim Personal Law Board [to the contrary]…

“As such we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency…  

“It has been agued somewhat faintly that triple talaq would be an essential part of the Islamic faith and would, therefore, be protected by Article 25 of the Constitution of India….

“[I]t is clear that triple talaq is only a form of talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it…

“According to Javed (supra), therefore, this would not form part of any essential religious practice. Applying the test stated in Acharya Jagdishwarananda (supra) it is equally clear that the fundamental nature of Islamic religion, as seen through and Indian Sunni Muslim’s eyes, will not change without this practice…

“We have already seen that though permissible in Hanafi jurisprudence, yet, that very jurisprudence castigates triple talaq as sinful. It is clear, therefore, that triple talaq forms no part of Article 25(1)…

“And this brings us to the question as to when petitions have been filed under Article 32 of the Constitution of India, is it permissible for us to state that we will not decide an alleged breach of fundamental right, but will send it back to the legislature to remedy such a wrong…

“It is at this point that it is necessary to see whether a fundamental right has been violated by the 1937 Act in so far as it seeks to enforce triple talaq as a rule of law in the courts in India…

“It is clear that this form of [triple] talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation to save it. This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution…

“In our opinion, therefore, the 1937 Act in so far as it seeks to recognize and enforce triple talaq is within the meaning of the expression “laws in force” in Article 13(1) and must be struck down as being void to the extent that it recognizes and enforces triple talaq. Since we have declared Section 2 of the 1937 Act to be void to the extent indicated above on the narrower ground of it being arbitrary, we do not find the need to go into the ground of discrimination in these cases…”                      

Read the full judgement.

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The post BAN on CATTLE NOTIFICATION: MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE NOTIFICATION New Delhi, the 23 rd May , 2017 appeared first on SabrangIndia.

The Centre's notification restricting the sale of cattle in the country is glaringly unconstitutional and an affront to federalism besides being a blow to farmers. The centre cannot create any law or issue orders/notification on a subject that is in the State list, in the division of legislative powers between the centre and states. Livestock is a state subject. 
 
In the State List under Schedule VII: Paras 15 and 16 cover livestock.
 
Here is the original notification, issued under the Prevention of Cruelty Act, assuming powers that the basic Act itself doesnt have. Sabrangindia has broken the story yesterday along with scroll.in
 
http://egazette.nic.in/WriteReadData/2017/176216.pdf
 
It can also be read here.
 
Interestingly, the world's first animal protection law was passed by Hitler in 1933 to ban the Jewish Koushar meat and to selectively harass Jewish biologists.

Already some states and other individuals and organisations are expressing outrage and expressing their desire to approach the Supreme Court where it is hoped it will be struck down as un-Constitutional.
 
Here are some of the Orwellian terms of the Notification:
 
Restrictions on sale of cattle.— The Member Secretary of the Animal Market Committee shall ensure that-
(a) no person shall bring to an animal market a young animal;
(b) no person shall bring a cattle to an animal market unless upon arrival he has furnished a written
declaration signed by the owner of the cattle or his duly authorised agent—
(i) stating the name and address of the owner of the cattle, with a copy of the photo identification
proof ;
(ii) giving details of the identification of the cattle;
(iii) stating that the cattle has not been brought to market for sale for slaughter;
(c) every declaration furnished to the Animal Market Committee shall be retained by it for a period of six
months from the date on which it is furnished to them and the Animal Market Committee shall, on
demand made by an Inspector at any reasonable time during that period, produce such declaration and
allow a copy of it or an extract from it to be taken;
(d) where an animal has been sold and before its removal from the animal market, the Animal Market
Committee shall—
II (i) 17
(i) obtain the expenses incurred for each animal, as approved by the District Animal Market
Monitoring Committee, so as to provide the basic facilities for animals and people;
(ii) take an undertaking that the animals are bought for agriculture purposes and not for slaughter;
(iii) keep a record of name and address of the purchaser and procure his identity proof;
(iv) verify that the purchaser is an agriculturist by seeing the relevant revenue document;
(v) ensure that the purchaser of the animal gives a declaration that he shall not sell the animal up
to six months from the date of purchase and shall abide by the rules relating to transport of
animals made under the Act or any other law for the time being in force;
(vi) retain such record for a period of six months from the date of sale;
(vii) produce such record before an Inspector on demand being made by him at any reasonable time
during that period and allow a copy of it or an extract from it to be taken;
(e) the purchaser of the cattle shall –
(i) not sell the animal for purpose of slaughter;
(ii) follow the State cattle protection or preservation laws;
(iii) not sacrifice the animal for any religious purpose;
(iv) not sell the cattle to a person outside the State without the permission as per the State cattle
protection or preservation laws;
(f) where a cattle has been sold and before its removal from the animal market, the proof of sale shall be
issued in five copies, out of which first copy shall be handed over to purchaser, second copy to seller,
third copy to tehsil office of the residence of purchaser, fourth copy to the Chief Veterinary Officer in
the district of purchaser and last copy to be kept intact in the record by the Animal Market Committee.
 
 

The post Unconstitutional: Modi Govt’s Ban on Sale of Cattle appeared first on SabrangIndia.

The court observed that all forms of discrimination against women violate fundamental freedoms and human rights.

"Under the garb of personal law rights of citizens protected by the Constitution cannot be infringed", ruled Justice Surya Prakash Kesarwani.

Also read: Talaq, talaq, talaq, is mockery of Islam and cruelty against women (renowned Maulana)

The court also noted that marriage in Islam is a contract which cannot be terminated unilaterally.

The high court’s observations were made while dismissing a petition filed by Aaqil Jamil from Varanasi. His wife had filed a criminal complaint alleging that he had tortured her for dowry and resorted to “talaq, talaq, talaq” when his demands were not met.

While passing the order, Justice Kesarwani observed that neither personal law nor the Constitution gives a husband the right to rescind the marriage contract orally or simply by a notification or ex-parte decision. Hence such a practice was “bad in law”.

Making a reference to the inalienable, integral and indivisible part of universal rights stipulated under the UN’s 1948 Declaration, Justice Kesarwani ruled that a woman cannot be divorced in a manner that fringes on her fundamental rights guaranteed under Article 14 (right to equality) and Article 21 (right to life with dignity) of the Indian Constitution.

Also read: Triple Talaq is anti-Quran, anti-Constitution, anti-humane: Arif Mohammad Khan

Though apparently not related to the petition of Aaqil Jamil, Justice Kesarwani also held that nikaah halala was humiliating and against the dignity of a woman. Nikaah Halala is a shameful practice where a divorced woman may not remarry her husband unless she marries another man, the marriage is consummated, and then divorced.

 “No lady can be compelled to marry some other person in case she wants to remarry her husband after divorce. This condition to marry another person before remarriage with earlier husband is humiliating and against the dignity of a lady protected under Article 21,” the judge said.  

Jamil had petitioned the high court seeking a quashing of the criminal complaint against him filed by his wife claiming he had already divorced her (through talaq-talaq-talaq) in 2015. In support of his contention, Jamil produced a fatwa from the mufti of Agra city to prove that the complaint was not tenable since he had already divorced her before her complaint. 

The post Triple talaq is a violation of a woman’s constitutional rights: Allahabad High Court appeared first on SabrangIndia.