Why in news?
The central government recently passed an Ordinance making instant triple talaq a criminal offence.
What are the purposes of a criminal law?
- Civil law deals with private wrongs or personal rights wherein compensation is considered sufficient.
- But the criminal law is concerned with situations in which not just an individual is injured, but also the well-being of society.
- Mere compensation is considered inadequate in that scenario and punishment is inflicted.
- The state prosecutes the accused on behalf of society.
- Criminal sanction is the most coercive method available to the state to regulate the behaviour of an individual.
- The purpose of criminal law is to forbid and prevent conduct that threatens substantial harm to individual or public interests.
Why it is not desirable for triple talaq?
- A punishment should have only the degree of severity which is sufficient to deter others.
- The Supreme Court has already set aside instant triple talaq in Shayara Bano case (2017).
- Under this, a Muslim man can no longer use it to cause ‘harm’ to his wife.
- It also no longer threatens the security and well-being of society as a whole.
- Criminalising triple talaq equates it with other severe cases like rioting, promoting enmity between people etc., that attract 3 years in jail and/or fine, as this case.
- These crimes are more serious than the act of an individual who, instead of taking 3 months to divorce his wife (which is permissible), pronounced talaq thrice instantly.
- Thus, imprisonment of 3 years for triple talaq is excessive, arbitrary, irrational and thus violative of Article 14 of the Constitution.
- Also the debate on dealing a civil matter under criminal prosecution still remains.
What should be done?
- In criminalising any act, the state must demonstrate “compelling state interest”.
- Triple talaq can no longer break the marital tie, following shayara bano judgement, and hence there is no evil in the act that ordinance endeavours to prevent.
- Hence, the ordinance itself may be struck down as unconstitutional on the grounds of arbitrary and excessive punishment.
Source: Indian Express
