The legislative dangers of election year

Last Updated: Mon, Feb 11, 2019 15:04 hrs
A MAN WALKS IN FRONT OF THE PARLIAMENT BUILDING IN NEW DELHI.

It is arguably the most inconvenient thing for elections to have to be scheduled in a year when several contentious Bills are pending in the Rajya Sabha, including but not restricted to the Citizenship (Amendment) Bill and the triple talaq Bill.

It is typical of the protagonists in the election to dangle carrots at those sections of the populace that are most likely to influence its outcome.

Conveniently, the most marginalised groups don’t bring in the votes. Chances are that they may not find the time or transport to even vote. And therefore, they are the perfect pawns in the game.

The parties are then free to appease the most powerful among various majorities and minorities.

With the websites of newspapers and 24-hour news channels eager to report anything that sounds sensational, parties need not even make the high command’s intentions known, let alone act on their promises if they are elected.

All a party needs is for someone who can later be called to order to make a dramatic pronouncement.

And so it was last week, with Congress MP and All India Mahila Congress chief Sushmita Dev telling the national convention of the party’s minority department that her party would abolish the Muslim Women (Protection of Rights on Marriage) Bill, 2018 – informally known as the “triple talaq Bill” – if it were voted to power.

This was on the grounds that the Bill, unlike any other law governing civil issues, had made divorce a penal offence. Sushmita Dev said the Bill was an excuse to arrest Muslim men.

Neither the Congress nor the BJP has needed much reason to arrest Muslim men. There are enough provisions in the law to ensure that any Muslim can be locked away for years on end. A case in point is Zakariya, who was arrested by the Karnataka police in 2008 in connection with the Bangalore blasts, at the age of 19, and remains in jail. In the last decade, he has been out on bail once, to attend his brother’s wedding, and the bail lasted all of two days.

The proposed law with respect to triple talaq would make the divorce illegal and void, and could have the husband jailed for up to three years. The initial Bill failed to get parliamentary approval, and several amendments were made, including a provision of bail for the accused before trial.

It is as dangerous to push the Bill through before the elections as it is to promise to abolish it.

Unlike Supreme Court judgements, which set a precedent for other courts, a law passed by the government is far more restrictive. It allows room for interpretation by the courts, but that is of little consolation.

Back in 1986, the Congress pushed through legislation which effectively overturned a landmark judgement by the Supreme Court in the Shah Bano case – the Muslim Women (Protection of Rights on Divorce) Act, 1986.

Shah Bano, whose husband Ahmad Khan had deserted her and stopped paying her the maintenance of Rs. 200 which he had promised, filed a petition in April 1978. In November the same year, her husband gave her talaq and said he was under no obligation to provide maintenance to a woman who was no longer his wife.

The case travelled from court to higher court, until the Supreme Court gave its verdict on April 23, 1985.

The Muslim Women (Protection of Rights on Divorce) Act 1986 said a Muslim woman would be entitled to “a reasonable and fair provision and maintenance to be made and paid to her within the iddat period by her former husband.” The iddat period lasts for around three months after the divorce.

This law could have been interpreted in favour of the female petitioner, ensuring that a fair amount was provided to her in quick time; in several cases, it has been. In several other cases, it has not been.

It is hard to frame a law with nuance when the government and its ministers are preoccupied with the prospect of losing their power in the coming months, and driven by the need to maintain their own positions at all costs.

It is hard to pass a law with nuance when the opposition is keen to ensure it wins over the largest majority with its stances and promises.

The triple talaq Bill is of particular concern, because unless it is reworded carefully, it could endanger either of two groups of already oppressed people, depending on whether or not it is passed.

The Citizenship (Amendment) Bill is of particular concern because, with its current wording, it could be in violation of equality to all religions guaranteed by the Constitution.

Perhaps the best thing that could happen to India would be a hung Parliament. And for that to happen, the voters must learn to roll their eyes at election promises.

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Why the Ambanis should rule India

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Nandini is the author of Invisible Men: Inside India's Transmasculine Networks (2018) and Hitched: The Modern Woman and Arranged Marriage (2013). She tweets @k_nandini. Her website is: www.nandinikrishnan.com