In parliamentary democracy, numbers are vital—to win elections, to form the government, to make laws. More is always better. As opposition parties in India have found out over the past few days with the BJP-led NDA government pushing through crucial bills in Parliament on the back of its brute strength in the Lok Sabha and careful maneuvering in the Rajya Sabha, where it does not have the majority.
The Upper House passed on Tuesday the Muslim Women (Protection of Rights on Marriage) Bill—thereby banning triple talaq, or talaq-e-biddat, practised by Muslim men that allows husbands to instantly divirce his wife by uttering talaq thrice continuously. Now, the law makes Muslim men liable for a jail term of three years for INStant divorce. The RS approval came after the Lower House rejected the Opposition’s demand for sending the bill for scrutiny to a parliamentary panel.
The first session of the 17th Lok Sabha—the second term of Prime Minister Narendra Modi—will go down in the history for many reasons. From introducing the highest number of legislative bills in the first session by any government in the past 15 years (30 bills) to holding the longest number of sessions, Modi 2.0 government has a long list to show. The triple talaq bill was among 15 bills passed by Parliament in the budget session.
Another key bill passed by Parliament is one with amendments to the Right to Information Act. Moreover, some crucial bills like the Unlawful Activities (Prevention) Amendment Bill 2019, National Medical Commission Bill 2019 and the Aadhaar and Other Laws (Amendment) Bill are awaiting RS nod after crossing the hurdle in the Lok Sabha in this session.
Amit Shah with BJP leaders in the Rajya Sabha.
Opposition parties and parliamentary experts say the rush to pass the bills is not a “good sign” in a democracy. “The tradition is that most of the bills are referred to a standing committee. The advantage is that the committees go deeper into the issue and they consult all stakeholders and collect their views. When the bill comes out of the committee, it’s in a much better shape, After all when it’s going to be a law, it will affect society,” says P.D.T. Achary, a constitutional expert and former secretary general of the Lok Sabha. “Usually, the first Parliament session works without committees. It takes time. By the next session, they will constitute committees. The government could have waited for some more time to pass these important bills,” he tells Outlook.
Manoj Jha of the RJD says leaders of 17 opposition parties—which account for 103 members in the 240-member Upper House—had written a letter to the Rajya Sabha chairman opposing the “hurried passage of bills in the House”. He adds that the session was extended for 10 more days till August 7 just to push through the bills. “There are bills which should go for pre-legislative scrutiny, which is the tradition of the House. The government passed important bills like RTI without any scrutiny. This regime knows how to influence people,” says Jha, a signatory of the letter. In the letter, the opposition leaders had quoted data from the PRS Legislative Research to point out that the 14th Lok Sabha (from 2004-2009) had sent 61 per cent of the bills to a committee. It also added that while 71 per cent of the bills were sent for scrutiny during the 15th Lok Sabha, only 26 per cent were sent during the NDA government between 2014-2019.
The Opposition invariably don’t agree with the government of the day—and it’s a longstanding tradition around the world—but what has angered activists and non-NDA parties over the triple talaq bill is the fact that “instant divorce” had already been termed unconstitutional by the Supreme Court in August 2017. Though the government says that the bill will empower Muslim women, Opposition and activists claim that the law is arbitrary and it will be used to harass Muslim men.
Revolutionary Socialist Party ( RSP) member N.K. Premachandran, who led the Opposition attack in the Lok Sabha against the triple talaq bill, questions the need of the bill when the rights of married Muslim women has already been fulfilled by the Supreme Court judgment. “All marriages and divorces come under personal law. Here, you are converting a personal law into a criminal law. You are separating the husband from wife whereas the SC says even if you say talaq, the marriage stays,” says Premachandran. He also raises concern that that the jailed husband, according to the new bill, is responsible for providing subsistence allowance to wife and children. “What can a jailed husband provide to the wife?”
Calling the bill discriminatory, Kavita Krishnan, the secretary of the All India Progressive Women’s Association (AIPWA), says that the new law violates the uniform criminal code. “Triple talaq has already been declared unconstitutional by the SC. Desertion is a problem with Hindu men and other communities as well. How can you criminalise desertion by Muslim men while you are not criminalising it for Hindu men or others? Criminal law must be applicable for all communities. ” says Krishnan. She adds that activists have been demanding reforms in light of the SC judgment, rather than a peremptory bill like this. “The bill is problematic in more ways than one. It allows the relatives of women to file complaints…In terms of women’s rights, it’s a nonstarter.”
For the BJP, passage of the bill is the culmination of a crusade around which Modi had spun the party’s poll campaign in many electoral battles. The first BJP government introduced the bill in 2017 and was passed in the Lok Sabha. However, it didn’t become a law as it failed to garner support in the Rajya Sabha. Under the new law, triple talaq is now a cognisable offence with a maximum jail term of three years. Though the arrested person can apply for bail, it will be granted only after a magistrate has heard the aggrieved woman.
Zakia Soman of the Bharatiya Muslim Mahila Andolan (BMMA), an organisation which had actively campaigned against the practice of triple talaq, says the bill was pending for long and will help achieve gender justice. “In any case, the husband is not supporting the wife. They just utter these words and they throw the women out and there is no question of maintenance. All these are patriarchal apologists who ask the question: ‘What will happen to the wife?’,” says Soman.
Union minister Ravi Shankar Prasad in Parliament.
The passage of the bill making several changes to the RTI Act has also come in for severe criticism from the Opposition and activists, who feel that the government has weakened the statutory body. Through the amendment, the government has abolished the five-year tenures of the chief information commissioner (CIC) and information commissioners (ICs); their terms will be now decided by the Centre which will also fix their salaries which were earlier equivalent to that of a judge of the Supreme Court. However, no specifics of tenure or salary have been mentioned in the amendment.
Former information commissioner Yashovardhan Azad says that the government isn’t “rationalising” but “downgrading” the body. “Obviously, you’re not going to increase the salary, nor the term,” he says, explaining that a fixed salary provides confidence and autonomy and stability to the system. “The government needs to tell the people that if the system has been running for 15 years and everything has been alright, what has come in between that requires a change?” he questions, referring to RTI Act as a “sunshine legislation” which acts as a “disinfectant”.
RTI activist Nikhil Dey, who has been campaigning against the amendments, tells Outlook that the move will “weaken the backbone” of the act by reducing the power of authorities entrusted to provide information to the public. Dey says that the government could have moved a constitutional amendment and set the tenure for the CIC for seven years, a move which he says would have got backed from different quarters. “They have instead left ambiguity,” adds Dey.
Another bill awaiting ratification in the Upper House is the Unlawful Activities (Prevention) Amendment Bill, which gives more powers to the National Investigation Agency (NIA) to call an individual a terrorist. The Lower House passed the amendments last week despite objection from the Opposition. Coming down heavily on the new provisions of the bill, parliamentarian N.K. Premachandran, says the amendment challenges the country’s federal mechanism. “It’s against the basic structure of the Constitution. This is totally against the federal principle. In the UAPA Act, there is a provision that the NIA has to inform the dircetor general of police of a state when it comes to attaching the property of a person. That provision has been taken away in the amendment,” Premachandran explains.
Supreme Court lawyer Rebecca John says the amendments have made an already tough law even more draconian. “Given the fact that concerns have been raised on the misuse of the existing UAPA, these amendments will only further those concerns and serve to flag many issues that should be protected under Article 21 of the Constitution,” says John. Shreeji Bhavsar, a lawyer with NIA courts, says the amnded law violates a person’s fundamental rights. “Now without a warrant the NIA can raid and seize articles. Any dissenters can be charged,” Bhavsar adds.
For the government, however, these changes are needed to curb terrorist activities. Activists fear that even dissenters could end up as terrorists in the eyes of the new-look UAPA.
The Bills Of Contention
The Aadhaar and Other Laws (Amendment) Bill 2019
- Amendments in the original Aadhaar Act, 2016 Section 5 of the Bill enables Parliament to make Aadhaar mandatory for authentication, which is against the C ruling in 2018
- Criticism Opposition says the bill tries to revive provisions struck down by the SC in 2018
Right To Information Bill 2019 (RTI)
- The salaries, allowances, and other terms and conditions of service of the central and state CICs and ICs to be decided by the central government
- Criticism Information commissioners will lose independence
Jammu and Kashmir Reservation (Amendment) Bill, 2019
- People living along the International Border in J&K to get reservation on a par with those living along the LoC/LAC
- Criticism Why is it needed when the state is under President’s rule
UAPA Amendment Bill
- NIA can go to any state for checking anti-terrorism activities without the state’s approval. The Centre may designate a person “as terrorist if he/she participates in acts of terrorism”.
- Criticism Can be draconian if used against the minorities
Triple Talaq Bill
- A Muslim man wil be jailed for three years if he utters ‘talaq’ thrice to divorce his wife
- Criticism Why only Muslim men should be punished when desertion by a husband is rampant in all religions
By Preetha Nair inputs from Siddhartha Misra