The archaic practice of the triple-talaq which is said to be oppressive to Muslim women was struck down last year by the Hon’ble Supreme Court of India in the case of Shayara Bano v. Union of India, as unconstitutional. Since then the debates have revolved around the criminalisation of practice of triple-talaq in order to deter Muslim men to resort to this fundamentally oppressive method. The discourse on the issue of criminalisation has been centred around arguments on grounds of religion, gender-justice, and public opinion. Though, few have argued that penal law may not be a suitable because one can’t expect that a husband after serving the jail term would go back to his wife or conversely, the wife will accept him. There is no debate whatsoever on the moral limits of criminal law.
The ordinance declaring the practice of pronouncing three times talaq criminal in its objects and reasons states it has been enacted “…to protect the rights of the married Muslim women…”. It further notes that despite the judgment of the Supreme Court in Shayara Bano, “the said practice is still unabated.”
The discernment of objects and reasons shows that aspects of gender equality and deterrence theory have found favour of the lawmakers. It sounds strange that how the lawmakers came to conclusion that, between 22nd August 2017, when the judgment was passed and 19th September 2018 when the Ordinance is promulgated, the practice of triple talaq remained unabated. Isn’t it the duty of the lawmakers to come to such conclusions based on researched statistics? Even if one argues that such statement is based on research then also isn’t it a very less time-frame to judge the efficacy of the rule? Be that as it may be.
The important point here to consider is whether, for protection of every right, the might of criminal law should be used? Or to put it another way, does the act of pronouncing the triple talaq falls within the boundaries of the criminal law? This further leads us to the question, what are the kind of wrongs which can be appropriately criminalised? The criminal law is facing two acute problems, one is of an ever-expanding number of criminal statutes and the other is of criminalisation of conducts which in previous generations would not have attracted penal action.
Some of these fundamental questions haven’t been addressed by the lawmakers in criminalising of triple talaq. The use of criminal law according to Kantian ideology is morally justified only if a person acts as a rational and free agent. Therefore, in all the cases where the rationality is inhibited, the Indian Penal Code has created exceptions between Sections 76-106. It is to be considered that when a person pronounces triple talaq, he does so in a fit of anger. Can we say such a person to be a rationale as per Kantian ideology? Though highly debatable, the defence of insanity may also be invoked in most of such cases. Also, the fundamental principle of criminal law that is, mens rea may be completely absent in instances of pronouncement of triple talaq.
Furthermore, Section 3 of the ordinance which makes the pronouncement of talaq to be void, illegal and punishable with a maximum of three years of punishment, creates a strict liability offence, i.e. there is no requirement of proof of mens rea. There is inherent fallibility of the strict liability offences because they breach the fundamental tenets of criminal law like the requirement of mens rea, the burden of proof is to be on prosecution etc. There is a growing jurisprudence according to which strict liability offences are justifiable only when the punishment is very low.
There is a growing tendency to criminalise, based on the instinctive public opinion or the political will, without any regard to the philosophy of the criminal law. The inherent assumption to this premise is that there are indeed boundaries of the criminal law which needs to be respected. The one set of argument may be that criminal law itself doesn’t have any boundaries, at best they are elusive and it is dependent upon the political will. For example, if the legislature decides to penalise a particular conduct say, triple talaq, then this act of legislature sets the boundary of criminal law. There are however many dangers of such an approach as it gives the legislature power to penalise even harmless conduct or moral wrongdoings, which theoretically doesn’t fall within the ambit of criminal law. Such, trends of criminalisation, put right to life and personal liberty at peril. Thus, the simplistic definition of crime as ‘a manifestation of political will’ is too dangerous. The legitimacy of legislation need to be tested on one or the other theory of the criminal law. This kind of approach has two advantages, first it prevents the State from becoming absolutist and second, it protects the individual liberty. The distinction needs to be maintained between the law which is valid and the one which is legitimate also. The law criminalising triple talaq though may be held to be valid but can’t be said to be legitimate, unless it is morally justifiable also. The doctrine of constitutional morality contains within its fold both the tests of validity and legitimacy in order to make law justifiable.
The problem may also be analysed from the perspective of the efficacy of criminal law and the deterrence theory. There is a dearth of research on the effectiveness of the use of deterrence theory. It is to be objectively examined whether the rapes have decreased after the harsh and stringent punishments were introduced after the Criminal Law Amendment Act 2013. At least the trends show that incidents as ghastly as Nirbhaya have occurred in Kathua or the Bihar Shelter Home case even after five years of the implementation of the amendment. Thus, absent data there is no evidence to show the efficacy of deterrence theory in changing the behaviour of a person. The use of the Criminal law is an extreme step which a State can use to control the conduct and therefore it can be permissibly employed only when it is constitutionally and morally justified. The indiscriminate use of the criminal law has led to the situation wherein R Ericson claims that “Criminal law is witnessing an end” and Andrew Ashworth questions, “Is criminal law a lost cause?”.
The Devlin’s argument that majority has a right to follow its own moral convictions in defending its social environment from change it opposes can’t be accepted for criminalising immoral conducts because in a diverse country governed by rule of law the interests of minority can’t be compromised and therefore, the apex court in the historic judgment gave voice to minority opinions and struck down Section 377 of Indian Penal Code to the extent it was criminalising consensual sexual relationships.
The scholars have suggested that, excessive reliance upon the criminal law to perform tasks for which it is ill-suited has created acute problems for the administration of criminal justice. The use of criminal law to enforce morals, to provide social services, and to avoid legal restraints on law enforcement, to take just three examples, has tended both to be inefficient and to produce grave handicaps for enforcement of the criminal law against genuinely threatening conduct.
The criminalisation of triple talaq is an instance of overcriminalisation. Any discourse in a civilised country, governed by rule of law and not whims and caprices, can’t afford to negate the objectivity and philosophical discourse around the criminal law in enacting the law. The doom of the criminal law is certainly near if the laws are enacted based on public sentiments, political vote bank and any other consideration which doesn’t respect the boundaries of criminal law.
Chirag Balyan is an Assistant Professor of Law and the Deputy Director of Centre for Research in Criminal Justice, Maharashtra National Law University Mumbai.
[The opinions expressed in this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of LiveLaw and LiveLaw does not assume any responsibility or liability for the same]