Triple talaq arbitrary, violates right to equality: SC

Triple talaq arbitrary, violates right to equality: SC
Triple talaq arbitrary, violates right to equality: SC

The practice of triple talaq was “manifestly arbitrary” as the marital tie could be broken “whimsically” by a Muslim man and it must be held to be violative of fundamental right of equality, the Supreme Court today said.

One of the two separate majority judgements, penned by Justice R F Nariman, said the provision of the Muslim Personal Law (Shariat) Application Act, 1937 must be struck down as being void to the extent that it recognises and enforces the practice of triple talaq.

Justice Nariman, whose views were concurred with by Justice U U Lalit, said that subordinate legislation could be struck down on the ground that it was arbitrary and violative of Article 14 (right to equality) of the Constitution.

“It is clear that this form of 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 so as to save it,” he said in his 93-page judgement.

“This form of talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 of the Constitution of India,” he said.

The majority judgement also said that applying the test of manifest arbitrariness in this case, “it is clear that triple talaq is a form of talaq which is itself considered to be something innovative, namely, that it is not in the Sunna, being an irregular or heretical form of talaq”.

It referred to the fact that the Hanafi school of Shariat law, which itself recognises this form of talaq, has said that though lawful, it is sinful.

“Given the fact that triple talaq is instant and irrevocable, it is obvious that any attempt at reconciliation between the husband and wife by two arbiters from their families, which is essential to save the marital tie, cannot ever take place,” the verdict said.

In a historic verdict, the apex court today put the curtains down on the 1,400 year old practice of ‘triple talaq’ among Muslims.

The five-judge Constitution bench, by a majority of 3:2 in which Chief Justice J S Khehar was in minority, said the practice of “‘talaq-e-biddat’ triple talaq is set aside”.

The two separate judgements, written for majority by justices Kurian Joseph and Nariman, did not concur with the CJI and Justice S A Nazeer that ‘triple talaq’ was a part of religious practice and the government should step and come out with a law.

( Source – PTI )

Riots over cow: SC raps MP police for non-examination of VCD

Riots over cow: SC raps MP police for non-examination of VCD
Riots over cow: SC raps MP police for non-examination of VCD

The Supreme Court today castigated the Madhya Pradesh police for not getting a video pertaining to the 2013 communal riots over rumours of cow slaughter and producing them as crucial evidence before a trial court, warning the officials of action.

“You (Deputy Superintendent of SIB) are in for a serious trouble, sir! Why have you not got the VCD examined,” asked a a bench comprising Chief Justice J S Khehar and Justice D Y Chandrachud, while taking strong note of the acquittal of nine of the 12 accused persons in one of the 12 rioting cases in which FIRs have been lodged.

The bench warned that it would “fix accountability” of the concerned police officers.

“Nine persons, out of 12, have been acquitted. Three have been absconding,” it said, asking why no action has been taken and was it because the accused belonged to “a political party”.

The bench then granted two weeks to activist Anurag Modi, who had filed the plea through advocate Pyoli, to peruse the judgement of a district court acquitting nine persons in a rioting case. Modi had filed the appeal against an order of the Madhya Pradesh High Court in the case.

It also asked the police officials to respond why they did not get the VCD of the crime authenticated by a forensic laboratory and produce it as evidence before the trial court.

Initially, the court was convinced that the police had annexed the VCD in their charge sheet and a social activist was not supposed to interfere with the probe and the police reports.

Later, the bench got irked when it was informed that the VCD was not used as evidence in the lower court and nine accused have been acquitted in a case.

Earlier, the apex court had taken the state police to task, saying it seemed it had not examined the videos and photographs pertaining to the riots which had been triggered by an alleged rumour that a cow had been slaughtered.

It had directed the Investigating Officer (IO), who had probed the 12 FIRs lodged in connection with the riots that had taken place on September 9, 2013 in Kheda and Pahatgaon villages of Harda district, to appear before it today.

In the riots, 54 persons had lost their houses and businesses. Twelve FIRs were registered by police naming Surendra Singh Rajput alias Tiger as the main accused in all the cases.

The apex court, on February 17, had directed the state police “to place the concerned charge sheet, along with the translated version thereof, on the record of the case” within four weeks.

On perusal of the charge sheets, the court had pointed out that they had not identified the culprits.

Modi had sought a probe against local BJP leader and former minister Kamal Patel and his son alleging they had instigated the riots with an eye on the assembly elections slated three months later.

The High Court had rejected the plea saying that the probe in the case was complete.

The petitioner had alleged that the riots were orchestrated by the Bajrang Dal, VHP and Goraksha Commando Force and that the then District Magistrate had named these organisations in his letter to Assistant Chief Secretary (Home) on September 20, 2013.

However, these organisations were not named in any of the charge sheets filed in the case, it alleged.

“The entire incident was stage managed and well-planned, attempted to be portrayed as one of communal nature.

“In fact, the cow had died of choking of respiratory pipe and asphyxia caused by large amount polythene consumption …

and 12 FIRs were registered initially, yet none included the names” of the BJP members “who were main conspirators and instigators,” the plea alleged.

The petition has sought a CBI probe in the matter on the ground that the local police was hand-in-glove with the leader. It has also alleged that Surendra Singh Rajput, the key accused named in all 12 FIRs, was still absconding.

( Source – PTI )

Central selection in lower judiciary won’t affect state rules: SC

Central selection in lower judiciary won't affect state rules: SC
Central selection in lower judiciary won’t affect state rules: SC

The Supreme Court today sought to dispel the apprehension that a proposal for a centralised selection mechanism for appointment of judicial officers in subordinate judiciary would affect the rules and regulations formulated by the states.

A three-judge bench headed by Chief Justice J S Khehar said the proposal has come forward so that vacancies could be filled up at regular intervals in the subordinate judiciary across the country.

“One thing we want to make very clear is that this suggestion does not touch and tinker with any state rules, terms and conditions, eligibility and all kinds of reservations given by the states,” the bench, also comprising Justices A K Goel and A M Khanwilkar, said.

“Nothing is touched so far as the eligibility, terms and conditions of the respective states are concerned. It is only for centralising the selection process so that at regular interval, selection is conducted,” the bench said.

It said that at present, ordinarily a candidate has to apply separately for examination conducted by respective states but with a centralised mechanism, they can apply for multiple states which have same terms and conditions.

“One advantage, I do not think whether the government had understood it or not, is that there could be 2-3 states with exactly the same terms and conditions. Ordinarily, a candidate applies for one state as per the advertisement given by it, but here, one can apply for more than one state having the same terms and conditions,” Justice Khehar said.

The top court noted that 15 different high courts have submitted their comments on the proposal and three high courts of Gauhati, Jammu and Kashmir and Punjab and Haryana, have sought more time to submit their comments.

It noted that the high courts of Andhra Pradesh, Uttarakhand, Kerala and Gujarat have expressed some reservations on the proposal.

“So to effectively conclude the matter one way or the other, the registrars general of the high courts which have expressed reservations may submit details thereof. Such high courts which have sought further time will also finalise their views and place their suggestions before this court,” it said while posting the matter for hearing on July 27.

“Before parting with this order, we consider it necessary to record that the instant exercise being carried out by this court would not affect the rules and regulations presently in operation in different states in respect to appointments,” it said while observing that even the reservation policy of the states shall be maintained.

“The instant exercise is only for centralising the selection process so as to make the recruitment a regular feature which would result in filling up of vacancies at the earliest through a time bound mechanism,” it said.

During the hearing, the bench also observed that it would make changes only if “everybody will be on board”.

In May, the apex court had sought the views of state governments on a central selection mechanism for judicial officers as it decided to examine the proposals of its committee on judicial reforms.

It had said that the Centre had suggested various options to fill up the vacancies, including one for a central selection mechanism.

It had also observed that the selection process will remain the same and where state public service commissions or concerned high courts were holding tests for filling up the posts, they will continue to do so.

The apex court was hearing a case taken up on its own after a letter was written to the secretary general of the apex court by Secretary (Justice) Snehlata Shrivastava.

Referring to a meeting held by a government representative and Justice Adarsh Kumar Goel, who is also Chairman of Arrears Committee of Supreme Court on April 8, the letter of Secretary (Justice) had said timely filling up of vacancies in the subordinate judiciary was highlighted as an area of concern.

According to a report earlier issued by Supreme Court –‘Indian Judiciary Annual Report 2015-2016’– a whopping 2.8 crore cases are pending in district courts across the country which are short of nearly 5,000 judicial officers.

The report had suggested increasing the judicial manpower “manifold” — at least seven times — to overcome the crisis by appointing about 15,000 more judges in the coming years.

Another apex court report — ‘Subordinate Courts of India: A Report on Access to Justice 2016’– has also highlighted that nearly 15,000 more judges would be required in the next three years to overcome this critical situation.

(Source – PTI)

How can ‘sinful’ triple talaq be a matter of faith: SC asks Muslim bodies

How can 'sinful' triple talaq be a matter of faith: SC asks Muslim bodies
How can ‘sinful’ triple talaq be a matter of faith: SC asks Muslim bodies

The Supreme Court today asked Muslim bodies how can a practice like triple talaq be a matter of “faith” when they have been asserting that it is “patriarchal”, “bad in theology” and “sinful”.

A five-judge Constitution bench headed by Chief Justice J S Khehar also reserved its verdict on a clutch of pleas challenging the constitutional validity of triple talaq among Muslims after hearing parties including the Centre, the All India Muslim Personal Law Board, the All India Muslim Women Personal Law Board and various others for six days in summer vacation.

The court took note of repeated submissions of the AIMPLB and former Union minister and senior lawyer Salman Khurshid, who is assisting it in personal capacity, that triple talaq is not mentioned in holy Quran and is rather “sinful”, “irregular”, “patriarchal”, “bad in theology” and “undesirable”, but the court should not examine it.

“You (Khurshid) say it is sinful. How can a sinful practice be said to be a matter of faith… Has it (triple talaq) going on in consistently for 1,400 years? The answer is ‘yes’.

“Has it going on in the world? The answer is ‘no’. The system itself say it is horrendous and bad,” the bench, also comprising justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, said.

The observations were made when Khurshid was advancing rejoinder arguments by emphasising that the practice was sinful and bad in theology which cannot be good in law. He, however, argued that the court should not examine it.

“That is why, what is sinful cannot be part of practice.

If it is bad in theology, it cannot be accepted in law…What is morally wrong cannot be legally right. What is not fully moral, it cannot be legal,” the bench observed.

Senior advocate Amit Singh Chadha, appearing for Shayara Bano, one of the victims of triple talaq, started rebuttal arguments quoting AIMPLB’s stand that this is sinful and patriarchal practice and said this cannot be integral to Islam.

The patriarchal practice of triple talaq in a male- dominated community is not recognised by many schools of thought, he said, adding, “It is a bad, undesirable and sinful practice and violates constitutional guarantees of Muslim women.”

Asking the court not to resort to “hands off” policy, Chadha said judiciary was the only hope for people, opposed to it as Muslim bodies say it is bad, but be allowed to continue and the Centre says that it is undesirable, but it would not legislate.

“The only right, the only remedy to the citizens is to come to this court which is the custodian of fundamental rights guaranteed under the Constitution. We have no other option. My only remedy is to come to this protector, enforcer and this guardian of my fundamental rights,” he said.

Chadha also argued it has been admitted by all parties that Islam does not discriminate between men and women and it maintains marriage as far as possible.

“Triple talaq is outlawed in various Muslim countries, predominantly in Hanafi countries like Pakistan and Afghanistan. The moment it is said to be bad in theology that is religious belief, the protection of Article 25 (right to practice religion) is thrown out,” he said adding this Article protects only good thing of theology.

Chadha also argued that state shall not deny the rights guaranteed under Articles 14 (right to equality) and 15 (gender equality) of the Constitution and a time has come to test this centuries-old practice, invalid in the eyes of law.

“Triple talaq is not a part of religion and it cannot be said that is a part of the practice,” he said.

He also argued that even the government has said that it was not something which was fundamental to Islam.

He strongly objected to the suggestion made by AIMPLB that it may ask ‘qazis’ to include a condition in ‘nikahnama’ (marriage contract) giving a right to women to say either ‘no’ or ‘yes’ to triple talaq.

He said that it would be illegal as the Dissolution of Muslim Marriage Act 1939 provides that a woman will have to go to a court to get divorce.

“A married Muslim woman, if she want divorce, will have to go to a court of law. This will not serve the purpose as a Muslim man can give divorce instantaneously,” he said.

Senior lawyer Anand Grover, appearing for an organisation opposing triple talaq, said that as of today, most Sunni Muslim women were against this practice and the AIMPLB was not giving a correct perception to the apex court.

Former Union minister, Islamic scholar and lawyer, Arif Mohammad Khan, arguing for All India Women Personal Law Board, strongly objected to the submissions of the AIMPLB and said Islam cannot have any room to dictate any person and the holy Quran says “killing an innocent person is like killing the entire humanity”.

“Three pronouncement of talaq in one go is not valid and is a practice from pre-Islamic Arab era and is not integral to Islam,” he said.

Khan, who had quit the Rajiv Gandhi cabinet over differences in handling the Shah Bano case, said the whole Shariat law has been distorted as “Shariat is the holy Quran and not the opinion of these people (clerics). The holy Quran considers the importance of family and it provides four steps before pronouncement of divorce.”

Another former Union minister and senior advocate, Kapil Sibal, who appeared for AIMPLB, said that Attorney General Mukul Rohtagi had raised the issue of constitutional morality in the matter.

“If they (government) want to have a law, have it. They cannot say we will not have a law and you (court) decide it.

It is for the government to frame a law and then it can be tested on the principles of morality,” he said.

Sibal said this was a “very complex situation” as the AIMPLB says it was a practice and Article 25, which guarantees freedom of conscience and free profession, practice and propagation of religion, is a fundamental right.

“How will you (court) set it aside? The government can bring a law as measure of social reform. If the law does not permit anybody to do something, it can be tested,” he said.

“Lots of thing are happening in the society which are protected by customs. The court is not here to decide what is a sinful practice in the world. We are talking about rule of law,” he said.

Sibal further said, “we are talking about very serious constitutional issue. There is a process provided under the Constitution. Follow that process.”

He said that a court cannot decide the issue in “vacuum” and triple talaq is a practice which has not been disputed and it is practiced by all the schools of thought.

Regarding the court’s query on whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of ‘nikahnama’, Sibal said he had a meeting with AIMPLB members and they have decided to issue an advisory to all the Qazis to put it in nikahnama.

“Put it on record before the court,” the bench said.

“Only 0.4 per cent is practising it and this is not a ground to strike it down,” Sibal said adding that Qazis have been advised to avoid triple talaq until there were unforeseen circumstances.

He said that the issue stands at a dangerous and slippery slope and “all must be careful about it” and this was not an area where court should enter.

“If there is a consensus among Muslim scholars that it is a practice then it is valid. There is nothing in the Quran which says triple talaq is not valid,” he said.

Another senior advocate Indira Jaising, appearing for one of the groups opposing triple talaq, told the bench that there were slippery slopes on both sides and the court will have to walk on the “razor” and decide the issue.

On conclusion of the six-day long marathon hearing, the bench thanked the lawyers for assisting it during summer vacation.

“We thank each and everyone of you for the assistance you have given to us during the vacation,” it said.

The bench had made it clear that it would examine whether the practice of triple talaq among Muslims is fundamental to their religion and had also said for the time being it will not deliberate upon the issue of polygamy and ‘nikah halala’.

It had also said that the issue of polygamy and ‘nikah halala’ would be kept pending and will be dealt with later.

The apex court had on its own taken cognisance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.

The Centre had earlier said that triple talaq is neither integral to Islam nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women.

( Source – PTI )

SC reserves verdict on triple talaq

SC reserves verdict on triple talaq
SC reserves verdict on triple talaq

The Supreme Court today reserved its verdict on a batch of petitions challenging constitutional validity of the practice of triple talaq among Muslims.

A five-judge Constitution bench headed by Chief Justice J S Khehar heard the issue for six days during which various parties including the Centre, All India Muslim Personal Law Board, All India Muslim Women Personal Law Board and various others made the submissions.

The bench, also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, had begun the hearing on May 11.

The members of the bench are from different religious communities including Sikh, Christian, Parsi, Hindu and Muslim.

The bench had made it clear that it would examine whether the practice of triple talaq among Muslims is fundamental to their religion and had also said for the time being it will not deliberate upon the issue of polygamy and ‘nikah halala’.

It had also said that the issue of polygamy and ‘nikah halala’ would be kept pending and will be dealt with later.

Nikah Halala is a practice intended to curb the incidence of divorce under which a man cannot remarry his former wife without her going through the process of marrying someone else, consummating it, getting divorced, observing the separation period called ‘Iddat’ and then returning to him.

The apex court had on its own taken cognisance of the question whether Muslim women faced gender discrimination in the event of divorce or due to other marriages of their husbands.

The hearing assumed significance as the apex court has heard the matter during the summer vacation.

( Source – PTI )

Triple talaq not integral to Islam, is intra-community tussle

Triple talaq not integral to Islam, is intra-community tussle
Triple talaq not integral to Islam, is intra-community tussle

Triple talaq is neither integral to Islam nor a “majority versus minority” issue but rather an “intra-community tussle” between Muslim men and deprived women, the Centre today told the Supreme Court.

Attorney General Mukul Rohatgi, in his rebuttal to the arguments favouring the 1,400 year-old practice of triple talaq, made a strong pitch for judicial scrutiny on grounds including violation of fundamental rights like right to equality and gender justice and said that the apex court cannot shy away.

A five-judge Constitution bench headed by Chief Justice J S Khehar, asked the Centre as to why it did not legislate to regulate marriages and divorce among Muslims.

“You (Centre) said if court quashes triple talaq then you will make a law but why the government did not make a law for last 60 years?” the bench, also comprising justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer, asked.

Rohatgi replied that the hallmark of a secular court was to reform without waiting for a legislation, when such matters come to it.

“I will do what I have to do but the question is what will you (court) do? I have given statement on instruction. I speak for the government and can’t speak for parliament,” he said reiterating that the top court was guardian of fundamental rights and has to see whether there was any violation of such rights.

Earlier during the day, the bench asked the All India Muslim Personal Law Board (AIMPLB) whether a woman can be given an option of saying ‘no’ to triple talaq at the time of execution of ‘nikahnama’ (marriage contract).

“Can it be made possible to give an option to a wife that she can say that she was agreeable to or not agreeable to it (triple talaq)?

“Is it possible to pass a resolution to all ‘qazis’ to include this condition (giving right to woman to say ‘no’ to triple talaq) in ‘nikahnama’? Give an option to wife to say ‘no’ to triple talaq,” the bench said.

Former Union minister and senior lawyer Kapil Sibal, representing the AIMPLB, said that he will respond to after talking to all the board members.

Rohatgi, responding to Sibal and a battery of senior lawyers favouring triple talaq, said even the core of religion has to be tested on the touchstone of fundamental rights.

Referring to the responses of the AIMPLB, he said that even they say that triple talaq was “undesirable”, “sinful” but yet valid and wondered “then how it can be said to be integral to religion”.

He further said this time, Muslim women have questioned the centuries-old “hegemony suffered by them at the hands of their male counterparts” of the community.

“The prism through which you see the case is not like majority versus minority but this is a case where it is an intra-community tussle between Muslim men and women.

“This time Muslim women have questioned the centuries-old hegemony suffered by them at the hands of their male counterparts,” Rohatgi said, adding that the practice of triple talaq is a tussle between the “haves and have-nots” inside the community.

He said this fight is between men of Muslim community, who are more powerful, empowered and educated and women, not so powerful, not empowered and uneducated.

The court can fill up the void by judicial pronouncements if there is no law on a particular issue, Rohatgi said, adding the guidelines on sexual harassment at work place were framed by it in the Vishakha case.

Rohatgi referred to practises ‘sati’, infanticide, ‘devdasi’ and untouchability among Hindus and said that they have been done away with.

“Did courts do it? These were abolished by legislations,” the bench asked.

“Then why do the court goes into issues like Vishaka. The court can’t say that it is helpless and it cannot step in. It is the guardian of fundamental right,” Rohatgi replied.

He said that India is “secular country with a secular constitution” which has kept core of all religions intact but they are subject to fundamental rights.

“We had several religions after Partition. There were people from over 600 princely states and tribes practising different faiths and religions. The core of every religion was kept but they were made subject to fundamental rights,” he said.

He said under Article 25 (right to practice religion) of Constitution, even the core component of a religion can be tested on the grounds of fundamental rights.

“Rights given under Article 25 of Constitution cannot be considered as absolute”, he said, adding the court has to look into these aspects as a community cannot decide what is their fundamental rights.

Comparing practices in Islamic countries, Rohatgi said that in 25 nations, religion continued to strive even after abolishing triple talaq and hence, this cannot be termed as “integral part of Islam”.

“What is optional cannot be under Article 25 and it cannot be considered as an essential part of religion. If it had been integral part of religion then the religion will not remain religion in its original form but if it is optional then even if it is taken out, the religion will remain the same,” he said.

He said that if the right to religion went against the fundamental rights, then it is the Constitution which will prevail over practices like triple talaq.

Sibal, who started arguments today, referred to a Delhi High Court judgement and said that it was wrong in holding that all schools of thought termed ‘triple talaq’ as “sinful”.

The Supreme Court cannot be called upon to decide as to what was wrong or right with the practice and belief, he said.

Referring to a judgement, he went to the extent of saying that the personal law is a legitimate basis of discrimination.

AIMPLB also said that the court should not venture into the issue on its own as no one has approached it.

“Some persons have come to this court,” the bench said.

Sibal said challenging the constitutional validity of triple talaq, being practised by a small portion of community, may revive the practice which is dying.

He said if a secular court like the Supreme Court decides to undertake suo motu (on its own) scrutiny of the issue with the Centre seeking a ban then, the community may take a tough stand.

The Muslim community is like small birds on which golden eagle preys, he said, adding “the community’s nests must have the Supreme Court protection.”

Sibal said it is that faith with which the community is before the court today seeking protection of its personal law customs and practices.

“Our faith in this court for last 67 years is fundamental and with that faith we have come here,” he said.

Today was the fifth day of the hearing on a clutch of petitions challenging triple talaq, polygamy and ‘nikah halala’ which is going on before a bench comprising members of different religious communities including Sikh, Christian, Parsi, Hindu and Muslim.

( Source – PTI )

Will deal with only triple talaq due to paucity of time: SC

Will deal with only triple talaq due to paucity of time: SC
Will deal with only triple talaq due to paucity of time: SC

The Supreme Court today said it was keeping open for adjudication in the future the issues of polygamy and ‘nikah halala’ among Muslims as the Centre insisted deliberations on these aspects as well.

The observation was made when Attorney General (AG) Mukul Rohatgi, appearing for the Centre, said the issues of polygamy and ‘nikah halala’ were also part of the order of a two-judge bench which had referred to the Constitutional bench the three issues, including the practice of triple talaq among Muslims.

“The scope of referring had all the three issues that was divorce, nikah halala, polygamy. All these three issues are before this court by virtue of the reference order of the two- judge bench,” Rohatgi said.

A five-judge Constitution bench headed by Chief Justice J S Khehar said, “It may not be possible to deal with all the three issues in the limited time we have. We will keep them pending for future.”

The Centre’s assertion assumes significance in the backdrop of the remarks of the apex court that it will only deal with the issue of triple talaq that too if it was fundamental to Islam.

The AG asked the bench also comprising Justices Kurian Joseph, R F Nariman, U U Lalit and Abdul Nazeer to make it clear that the issues of polygamy and ‘nikah halala’ are still open and would be dealt by other bench in future.

“It will be dealt in future,” the bench clarified.

The bench is hearing a clutch of petitions challenging the practice of triple talaq among Muslims.

The Centre has resumed its arguments in the case today.

During the last hearing, the apex court had observed that triple talaq is the “worst” and “not a desirable” form of dissolution of marriage among the Muslims, even though there were schools of thought which called it “legal”.

The remark was made by the bench when senior lawyer Salman Khurshid referred to the various schools of thought and the stand of All India Muslim Personal Law Board (AIMPLB) that triple talaq was “abhorrent”, yet valid.

The day-long hearing on the matter last Friday also saw two veterans, jurist Ram Jethmalani and former Union Minister and Islamic scholar Arif Mohammad Khan, coming out all guns blazing against the practice of triple talaq.

While Jethmalani attacked the practice on various constitutional grounds including the right to equality and termed it “abhorrent”, Khan said it was akin to the pre- Islamic era practice of burying a female child alive in the Arabian region.

Khan had said the whole Shariat law has been distorted as “Shariat is the Holy Quran and not the opinion of these people (clerics). The Holy Quran considers the importance of family and it provides four steps before pronouncement of divorce.”

“Triple talaq is far from being fundamental and very far from being sacramental to Islam. It violates every good thing which Islam prescribes. What we are seeing in the form of triple talaq is similar to the pre-Islamic era practice where female infants were buried alive,” he had said.

Jethmalani had said “the right of triple talaq is available only to the husband and not to the wife and it breaches Article 14(Right to Equality) of the Constitution.”

He had said triple talaq was a discrimination on the ground of sex and this practice was abhorrent to the tenets of holy Quran and no amount of advocacy can save this “sinful” practice which is contrary to constitutional tenets.

How can a woman be allowed to become ex-wife only because her husband wants and this is “the highest kind of unconstitutional behaviour”, the noted jurist had said.

Khurshid, who is assisting the court in personal capacity, had said he himself found triple talaq “sinful” and anything which is sinful could not have been ordained by Islam. He also reiterated that triple talaq was a “non-issue” which does not require judicial scrutiny.

He had said the irrevocable nature of triple talaq can be negated if the three-time pronouncement of talaq in one go is considered one leaving the scope for reconciliation and re-union during the ‘iddat’ (waiting) period.

Referring to the prevalent practice in Islamic nations, he had said even if one says talaq thrice in a go, it was considered as one, thus negating irrevocability of divorce.

The bench had asked Khurshid if triple talaq was India- specific and what had led to its repeal in other countries.

Khurshid said whatever was happening in India now, might have happened in other countries, leading to the ban.

To this, the bench had said, “it is like death penalty which is abhorrent but permissible in the law of many countries and many have repealed it,” adding whether anything which is sinful be taken as prescribed by God and made a law by man.

When advocate Farha Faiz, a petitioner in the case, had started her arguments, the bench had said it was not concerned with personal facts.

She had said what Imams and clerics say is not important, the only thing is that the holy Quran says everything.

“The Holy Quran is in mandatory language. It is not an advise. If we are adopting one procedure for marriage, why can’t we have one procedure for talaq also?” she had said.

To this, the bench had said, “we cannot do that. We cannot wipe out (the difference between) Shias or Shunnis”.

Faiz also alleged that the Muslim clerics were running a parallel judicial system like the trial courts and the high courts and the clerics were forcing Muslims not to go to the courts.

“Point taken, you have raised a very valid and good point,” the bench had said.

The apex court has fixed a six-day schedule for hearing in which three days would be available for those challenging triple talaq and three days for those defending it.

( Source – PTI )

Triple talaq is worst form of marriage dissolution, says SC

Triple talaq is worst form of marriage dissolution, says SC
Triple talaq is worst form of marriage dissolution, says SC

The Supreme Court today said the practice of triple talaq was the “worst” and “not desirable” form of dissolution of marriages among Muslims, even though there were schools of thought which termed it as “legal”.

There are “school of thoughts (which) say that triple talaq is legal, but it is the worst and not desirable form for dissolution of marriages among Muslims,” a five-judge constitution bench, headed by Chief Justice J S Khehar, said on the second day of continued hearing on the matter.

The observation came when former Union Minister and senior advocate Salman Khurshid, who is assisting the court in his personal capacity, told the bench that it is not an issue where judicial scrutiny is required and moreover women have the right to say ‘no’ to triple talaq by stipulating a condition to this effect in ‘nikahnama’ (marriage contract).

The court asked Khurshid to prepare a list of Islamic and non-Islamic countries where triple talaq has been banned.

The bench was then informed that countries like Pakistan, Afghanistan, Morocco and Saudi Arabia do not allow triple talaq as a form to dissolve marriages.

Senior advocate Ram Jethmalani, appearing for one of the victims, was blunt in his arguments and assailed the practice of triple talaq various constitutional grounds including the Right to Equality.

“The right of triple talaq is available only to the husband and not to the wife and it breaches the Article 14 (Right to Equality) of the Constitution,” Jethmalani said.

“There is no saving grace for this method of granting divorce. One-sided termination of marriage is abhorrent, and hence, avoidable,” he said.

“Triple talaq makes a distinction on the ground of sex and this method is abhorrent to the tenets of holy Quran and no amount of advocacy can or will save this sinful, repugnant practice which is contrary to the constitutional provisions,” he added.

No law can allow a wife to become an ex-wife “at the fancy of the husband” and it is “the highest kind unconstitutional behaviour”, Jethmalani said.

The high profile hearing on a batch of petitions challenging the constitutional validity of triple talaq will continue after the lunch break.

( Source – PTI )

Right to refuse medical treatment: Govt to take call, says SC

Right to refuse medical treatment: Govt to take call, says SC
Right to refuse medical treatment: Govt to take call, says SC

Terming as “sensitive” the issue of right to have a ‘living will’ to refuse life support in the last days of an ailing person, the Supreme Court today said the issue should be decided by the government.

The apex court declined to give any direction on the issue and said it was for the government to take a call, as it asked a group of four persons, including a Mumbai-based lawyer and three senior doctors to make a representation in this regard.

A bench headed by Chief Justice J S Khehar also said the petitioners should make a representation to the Secretary of the Ministry of Health and Family Welfare on the matter.

“Keeping in view the sensitivity and importance of the matter, we allow the petitioners to express the grievances raised in the petition to secretary of Ministry of Health and Family Welfare,” the bench also comprising Justices D Y Chandrachud and S K Kaul said.

The court, which disposed of the petition, clarified that the petitioners would have the liberty to take appropriate action in accordance with law irrespective of the government’s response — whether affirmitive or negative.

The court also said that various issues arose as a person who is incapacitated cannot take a call on his own treatment and added that it was a legislative policy matter.

However, senior advocate Sanjay Hegde along with advocate Nitin Mishra appearing for the group said the petition does not seek to raise issue of euthanasia or positive assistance to bring an end to life in certain circumstances, but focuses on a different issue of whether a person has a right to refuse treatment under Article 21 of the Constitution (right to life).

Hegde said the plea sought to raise questions of far- reaching constitutional importance impinging upon the right of an individual to refuse medical treatment and it was not a case where a person is incapacitated.

The senior advocate also referred to the landmark apex court judgement in Vishaka case in which, in absence of the legislation, guidelines were laid down to deal with the issue of sexual harrassment against women at work place.

The petitioners included Mumbai-based lawyer and social activist Girish Trimbak Gokhale, pulmonologist and intensive care physican Raj Kumar Mani, palliative care physcian Srinagesh Simha and senior neurologist Roopkumar Dayaram Gurshani.

They sought direction to declare that any person has a right to make decisions to choose or even refuse any kind of medical treatment, which cannot be curtailed by any health care provider.

It also sought direction for framing of guidelines which shall be enforced by all health care providers until the parliament passes an appropriate bill to address the issue.

The petitioners in their plea said that last year they had sent some suggestions and comments on the issue for inclusion in a draft bill but till date they have not got any response.

“The Petitioners state that the sociological dimensions of this issue had been raised in different jurisdictions and have also been raised within India and are broadly considered under the heads of Palliative Care, Advance Care Directives including Living Wills and Medical Power of Attorney, Death by Neurological Criteria and Resolution of Medical Futility,” the petition said.

“The present petition is limited to the right of a patient who does not seek to receive and obtain any kind of medical treatment,” it said.

The apex court had on October 21, 2016 dismissed a petition filed by these petitioners saying it does not see any reason to interfere in the matter when Parliament was seized of the matter.

“The right to life under Article 21 of the Constitution entails the right to regulate treatment and the right to refuse life-sustaining artificial treatment,” it said adding that the right also includes the right to make a conscious decision not to initiate or escalate any of the on-going life-sustaining treatments, in order to defend oneself from possibly unwanted negative consequences of life-prolonging medical technology.

“The Petitioners say and submit that the demand of enacting the law relating to End of Life Care is not only a fundamental in nature but in consonance with International Human Rights, to which India is a signatory and the same is a part and parcel of the basic features of the Constitution,” it said.

( Source – PTI )

Absence of timely legal help to poor affects credibility: CJI

The credibility of the legal system and the rule of law have come under “severe strain” in the absence of timely help to poor and illiterate Indians, Chief Justice of India J S Khehar said today.

The CJI made the observations while highlighting the importance of Para Legal Volunteers (PLV) who, according to him, enabled ordinary and helpless people to avail the benefits of the legal system for alleviating their sufferings and injustice.

“In the absence of timely help to most Indians, the credibility of the legal system and the rule of law comes under severe strain,” he said, stressing that the poor and illiterate Indian were the main clients of the justice system.

Law and Justice Minister Ravi Shankar Prasad, who also spoke at the two-day National Meet of Para Legal Volunteers here, emphasised the use of technology in providing access and administration of justice.

Inaugurating two-day National Meet, the CJI said the service to poor was a “super divine duty” being carried out by the volunteers, which was move than the “divine duty discharged by the judges”.

The last-mile connectivity for a villager under the PLV scheme was not the lawyers but the PLVs working under the competent legal authorities which impart awareness of laws and legal system to them, he said.

When the disputes are such that they are beyond the capacity of these volunteers who have basic training in law, they approach the nearest legal services authority for a dispute settlement mechanism like Lok Adalat, mediation or more formal legal remedies.

“These volunteers trained under the 2009 para legal volunteer scheme act as filters relating to the number and nature of disputes that need to be formally and institutionally dealt with by the legal services. Para legal volunteers save time and money of the poor, the official administration and the courts,” Justice Khehar said.

Lauding NALSA’s poverty allevation scheme, he said it ensured that the benefits of various anti-poverty schemes of the central and the state governments actually reach the intended beneficiaries.

Emphasising the need for restructuring its approach and design, the CJI favoured skill-driven PLVs who can properly research and investigate facts or laws related to a case.

“In fact, this will develop para legal volunteer as multi skilled individual and enhance his or her performance as the critical interface between the common litigant and the courts by a process of upgradation that opens more opportunity for them,” he said.

The Minister emphasised the need for increasing use of technology in the judicial process.

“Time is changing fast and with the changing times, we have to change our technology. Technology is a very important tool in the administration of justice.

“In a country of 125 crore people, 108 crore people have mobile phones, among whom 35 crore have smart phones, which will very fast reach 50 crore figure”, Prasad said.

He said 113 crore people have Aadhaar cards but refused to speak on it further saying the matter was sub-judice.

Noting that good governance can be delivered with the help of technology, he said with government’s scheme of common service centre (CSC), people in villages and in small towns could avail digital services like making of ration cards, PAN cards, Aadhaar cards or booking of railway tickets.

“We have decided to link the CSC with the access to justice. Now these centres could help Dalit women, Kashmiri women and people from North East to get access to justice,” he said, adding that CSCs were being opened in 1,000 panchayats of Uttar Pradesh and Bihar and soon 800 such centres will be opened in Jammu and Kashmir and the North East.

Justice Dipak Misra, the executive chairman of NALSA, said this year has been dedicated as the year of excellence to “access to justice through para-legal volunteers”.

“Through these legal volunteers, the poor people of the country will be able know about government schemes and seek redressal of their grievances,” he said.

Several Supreme Court judges, high court judges and judicial officers from various trial courts across the country were also present at the event.

Source : PTI