Rajyavardhan Singh*
Supply: IAS Specific
This essay responds to Keiran Correia’s critique of the Muslim Girls (Safety of Rights on Marriage) Act, 2019 by defending the constitutionality of criminalising triple talaq. It argues that the laws does greater than merely declare the follow legally void. It seeks to confront the persevering with social harms that triple talaq inflicts – harms that disproportionately have an effect on Muslim ladies. Removed from violating the constitutional assure of equality, the Act addresses structural inequities inside Muslim private regulation quite than concentrating on Muslim males as a category. Anchored in Article 15(3), this essay contends that the regulation qualifies as a sound measure of protecting discrimination geared toward correcting documented gender-based vulnerabilities. It’s not a hasty flip to legal regulation, however a rigorously thought of legislative response to systemic injustice that constitutional adjudication alone failed to deal with.
In a latest publish on the Constitutional Legislation & Philosophy weblog, writing on the criminalisation of tripletalaq beneath the Muslim Girls (Safety of Rights on Marriage) Act, 2019, Keiran Correia argues that the Act is constitutionally unsound in its strategy to non-public regulation.
As I perceive it, his central arguments are as follows: (1) For the reason that Supreme Courtroom has already invalidated triple talaq, its criminalisation turns into redundant; (2) The Act unfairly targets Muslim males by criminalising conduct that’s not an offense for males of different religions, thereby being violative of Article 14; (3) The Act reinforces dangerous stereotypes about Muslim males, warranting an intersectional strategy to discrimination evaluation; (4) Whereas community-based reform is a reputable strategy, the Act unjustifiably singles out Muslim males with no well-founded rationale; and (5) The invocation of Article 15(3) as a justification for the Act is likely to be problematic, as the availability has traditionally been understood as enabling affirmative motion or protecting measures for ladies, quite than punitive measures in opposition to males.
On this essay, I take a place opposite to Keiran’s and have interaction with every of his claims. Under, I provide my response.
1. On the Query of Redundancy
Keiran’s first main argument builds on J.L. Austin’s idea of “performatives.” He means that the Supreme Courtroom, in Shayara Bano, successfully rendered triple talaq non-performative. This in easier phrases, is to say that for the reason that follow has been struck down, the pronouncement itself turns into “unattainable” – that means it not capabilities as a performative that truly does divorce. Because of this, the marital obligations of the husband and spouse stay intact (given the impossibility of a sound divorce). And therefore, lowering the state of affairs to a mere desertion – an motion that, if prohibited by Parliament, could not maintain up nicely constitutionally.
In response, I exploit the exact same idea of performatives to argue the alternative. Sure, on paper, no divorce has taken place. Nevertheless, the fact for a lady, following their husband’s utterance of “talaq” thrice, is unmistakably that of a divorced particular person (very like Keiran’s personal illustration of a person sentenced to loss of life, whose actuality shifts the second his sentence is pronounced). Part 2(c) of the Act, to this finish, is especially enlightening. It defines talaq as kinds “having the impact of instantaneous and irrevocable divorce,” signalling that the regulation’s concern lies not with the technical validity of the act, however with the lived penalties it units in movement. The phrase “having the impact of,” thus, turns into essential right here. For it fairly ostensibly intends on addressing the social fallout of triple talaq, and never simply its authorized standing. Therefore, the Parliament, whereas legislating, was merely responding to documented circumstances the place males continued announcing triple talaq leaving ladies ready the place they had been socially branded as divorced, whereas with out entry to formal divorce proceedings.
That is the place Chapter III of the Act turns into all of the extra essential. Because it offers for upkeep and custody rights – measures that don’t “entrench” what the Act seeks to “disavow”, however as an alternative, solely provide needed treatments for ladies caught on this implementation hole. Thoughts you, these should not divorce advantages (which might certainly be contradictory) however mere protecting measures for ladies subjected to a follow that, whereas legally void, continues to have vital penalties within the face of abandonment, stigma, financial vulnerability, and so forth. To this finish, I submit that another studying of the Act – framing it as merely concentrating on “desertion” (and subsequently directing ladies in the direction of civil treatments) misunderstands the very particular context and the distinctive harms the laws seeks to deal with. Certain, the Act is probably not theoretically elegant. Nevertheless it responds to an unpleasant actuality, one which invalidation alone has did not treatment.
2. Equality and the Limits of Formalism
Keiran’s second argument critiques the Act for violating Article 14’s mandate of formal equality. He argues that triple talaq is just not an act sui generis; quite, it both quantities to divorce or desertion. Subsequently, provided that the Supreme Courtroom has invalidated triple talaq as a mode of divorce, what stays is mere desertion. An act which, for non-Muslim males, carries solely civil penalties. Nevertheless, beneath Part 4 of the Act, Muslim males face legal punishment of as much as three years for a similar conduct. This differential therapy, he contends, lacks an intelligible justification and creates a man-made dichotomy primarily based solely on non secular id. As such, the Act should be struck down for violating the proper to equality.
First, the Act’s classification doesn’t relaxation on a man-made distinction however on the precise vulnerability of Muslim ladies inside their private regulation framework. A Hindu or Christian girl abandoned by her husband should invoke legally recognised divorce proceedings. In contrast, nonetheless, a Muslim girl subjected to triple talaq faces a definite drawback (i.e., the instant assertion of a non-existent dissolution). With out the Act, her recourse can be restricted to in search of upkeep beneath Part 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (beforehand Part 125 of the CrPC), or initiating divorce proceedings beneath Part 2(iv) of the Dissolution of Muslim Marriages Act, 1939 (as utilized in Veeran Sayvu Ravuthar v. Beevathumma). But neither treatment confronts the precise social stigma triggered when a husband pronounces triple talaq (a mode of divorce that, although void, continues to hold social weight).
The Act, in flip, is designed exactly to shut this implementation hole. For even after judicial invalidation, triple talaq operates as an extra-legal social decree – one which produces a qualitatively completely different hurt than extraordinary desertion. To deal with each types of abandonment as legally or socially an identical is, subsequently, to disregard the structural disparities in how completely different private legal guidelines function.
Second, the argument that criminalisation should monitor formal parity in civil treatments presupposes a symmetry that maybe doesn’t exist. Legal regulation regularly intervenes in asymmetrical energy dynamics. Take as an example, legal guidelines in opposition to dowry harassment, which criminalise calls for for cash or property inside a conjugal relationship, regardless that comparable monetary disputes in different contexts may stay purely civil issues. The truth that desertion in some circumstances warrants solely civil treatments doesn’t foreclose criminalisation the place the act carries a selected and foreseeable hurt. Equally, the Act in concentrating on triple talaq, acknowledges that sure types of abandonment perform as workout routines of arbitrary dominion quite than mere withdrawal from marriage.
In sum, the declare that the Act violates Article 14 by singling out Muslim males presumes an equivalence between desertion simpliciter and triple talaq – an equivalence that doesn’t maintain when considered by way of a substantive quite than a formalist lens. As desertion, most often, leaves ladies with authorized recourse to dissolution of marriage and related protections. Triple talaq, in contrast, leaves Muslim ladies with no such recourse. Subsequently, if equality is to be measured not by superficial uniformity however by its capability to treatment structural injustice, then the Act stands on a lot firmer constitutional floor than Keiran suggests.
3. Overextending Intersectional Discrimination
Keiran, in his third main argument, highlights the distinctive intersectional discrimination confronted by Muslim males beneath the Act. He means that they’re penalised particularly because of each their faith and gender. Drawing a parallel to the case of Johnny Kimble, a Black man in the US who confronted distinct racial and gendered stereotypes, he argues that Muslim males in India are equally subjected to unfair criminalisation and are stereotyped as inherently misogynistic. This, he contends, reinforces broader societal biases whereas erasing the structural patriarchy that impacts all ladies. Subsequently, he calls on the Courts to make use of this chance to develop an intersectional discrimination idea and firmly anchor it within the regulation.
Whereas Keiran fairly rightly highlights the troubling actuality of Muslim males being stereotyped. His argument, although necessary, doesn’t essentially lead me to agree along with his conclusions. The mere truth {that a} group faces systemic discrimination doesn’t imply that each regulation affecting it’s an occasion of the identical. My disagreement along with his argument unfolds alongside two elementary strains.
For one, intersectionality (as was initially theorised by Crenshaw), is a device to seize types of discrimination that fall by way of the cracks of a single-axis evaluation. It’s not a blunt equaliser that may be invoked at any time when a regulation applies to a specific subset of people. Even Crenshaw’s paradigmatic circumstances of intersectional discrimination – that of Black ladies being excluded from each gender-based and race-based discrimination claims concern teams going through compounded structural vulnerability. However legal regulation doesn’t “discriminate” in opposition to perpetrators on this approach in any respect. It solely singles them out primarily based on their particular capability to trigger hurt. To say that Muslim males are uniquely affected by this regulation is akin to saying that home violence legal guidelines “discriminate” in opposition to males. The related query is just not whether or not a regulation impacts a specific group extra, however whether or not it does so due to an unfair or irrelevant classification.
Past this, the stereotype Keiran factors to, i.e., Muslim males are notably misogynistic may exist in public discourse, however the regulation doesn’t create, endorse, or act upon it. Ostensibly, the Act doesn’t punish Muslim males for being Muslim males. It solely punishes a selected follow that impacts Muslim ladies’s rights. If a Hindu or Christian private regulation sanctioned unilateral, extrajudicial divorce, its criminalisation can be equally justified.
4. Remodelling Private Legislation, Fairly
Keiran’s fourth rivalry identifies Narasu Appa Mali because the central juridical impediment to an equality problem. In Narasu, Chagla CJ. upheld the state’s authority to introduce community-specific reform “by phases” – however provided that the classification rested on an affordable basis, measured by three components: (1) theological variations, (2) academic disparities, and (3) the group’s receptivity to reform. By this commonplace, Keiran argues, the 2019 Act falls quick. It isolates Muslim males for criminalisation with none justification alongside these strains, making its distinction arbitrary quite than principled. Moreover, in contrast to Narasu, which involved private regulation reform, the Act ventures into the personal sphere with none broader framework for group engagement.
Two key claims now require nearer scrutiny: (1) that the Act operates strictly throughout the “personal sphere” and subsequently doesn’t alter private regulation, and (2) that the Act lacks an affordable foundation, whereas Narasu was justified in its strategy.
To start with, the assertion that the 2019 Act stays confined to the “personal sphere” rests on a false divide. It artificially separates the regulation of particular person conduct from reworking private legal guidelines. However can the 2 be so neatly divided? The Act does extra than simply criminalise an act of non-public abandonment. It actively reshapes the authorized and social standing of Muslim ladies inside their very own group. Therefore, by criminalising triple talaq, it alters the normative construction of Muslim private regulation, reinforcing Shayara Bano’s rejection of the follow and making certain its gradual disappearance from social life. To recommend that the regulation operates purely throughout the personal sphere is to disregard a elementary reality: private regulation has by no means existed in a vacuum. It derives authority not simply from non secular sanction, but additionally from authorized enforcement and communal legitimacy. And so, when the state intervenes to disrupt that interaction, it’s not merely regulating what occurs within the “personal sphere”. It’s shifting the foundations of non-public regulation itself.
Now, turning to the deeper declare: that the Act lacks an affordable foundation, whereas Narasu was a justified train of authorized reasoning. This argument stands on shaky floor. It assumes that Narasu’s reasoning, rooted in its classification of non-public regulation as past constitutional scrutiny, was ever analytically sound to start with. Whereas Narasu admittedly stays binding regulation, its reasoning feels more and more misplaced within the context of recent constitutional requirements of overview. Choices akin to Sabarimala and Shayara Bano have forged severe doubt on the notion that private regulation is immune from constitutional scrutiny, rendering Narasu’s foundational assumptions suspect. Furthermore, even by itself phrases, Chagla CJ’s reasoning was primarily based on the premise that communities exist alongside a developmental spectrum, with authorized reform contingent on their theological, academic, and social readiness. This framework is something however impartial. It finds itself steeped in a logic that constructs a hierarchy of progress, the place authorized intervention is justified primarily based on an imagined trajectory of communal development. That is neither theoretically defensible nor constitutionally coherent. A regular of reasonableness that ties authorized reform to an exterior evaluation of a group’s supposed “preparedness” is inherently exclusionary, insulating sure private legal guidelines from constitutional scrutiny whereas subjecting others to state intervention on an advert hoc foundation.
The 2019 Act, in contrast, is rooted not in speculative assessments of a group’s capability for reform, however within the empirical actuality of hurt. It responds to a vacuum that constitutional adjudication alone did not fill. Not like Narasu, it doesn’t assemble a hierarchy of deserving and undeserving communities. As an alternative, it recognises {that a} particular type of gendered vulnerability stays unaddressed and ensures that constitutional ensures are translated into lived realities. If reasonableness is to be measured by necessity and constitutional constancy quite than colonial paternalism, then maybe the extra necessary query is just not whether or not the 2019 Act is justified, however why Narasu has gone so lengthy with out the crucial re-examination it so clearly deserves.
5. The Doable 15(3) Defence
Keiran lastly turns to Article 15(3), arguing that the Act finds refuge in its safety as a “particular provision” for Muslim ladies. He notes that courts have handled Article 15(3) as an exception to Articles 14 and 15(1). Nevertheless, he questions whether or not a penal regulation matches inside its scope and whether or not it should nonetheless align with the broader equality code. Whereas courts have been cautious in permitting such an expansive studying, the dearth of a transparent framework leaves ambiguity. He additional argues that the Act runs afoul of the anti-stereotyping precept set out in Anuj Garg v. Lodge Affiliation of India, because it reinforces present prejudiced narratives about Muslim males. In the end, he warns that if Article 15(3) shields legal guidelines that entrench quite than dismantle discrimination, it dangers undermining substantive equality itself.
First, Keiran acknowledges that affirmative motion is just not restricted to reservations however extends to legal guidelines that positively discriminate in favour of ladies. But, he hesitates to increase this logic to legal regulation, as if the imposition of legal penalties by some means transcends the area of “particular provisions.” However why ought to that be the case? The very objective of criminalisation on this context is just not merely punitive however protecting. It seeks to discourage a follow that has had documented, extreme penalties for Muslim ladies. We should perceive that the penal consequence connected to triple talaq is just not incidental to its protecting objective, however integral to making sure compliance. Safety with out enforcement is mere lip service.
Keiran subsequent argues that the Courtroom has but to definitively set up whether or not Article 15(3) operates as an exception to, or merely a clarification of, Articles 14 and 15(1). That is an attention-grabbing doctrinal concern. But when Article 15(3) is an exception, then the state’s capability to legislate for the safety of ladies (together with by way of legal statutes) stays uncontroversial. Whether it is merely a clarification, then we should ask: clarification of what? The one coherent reply is that it affirms the precept that legal guidelines benefiting ladies needn’t be subjected to a inflexible formal equality evaluation. In both case, the conclusion stays the identical – Article 15(3) offers a constitutional justification for differential therapy when that therapy is designed to redress a selected hurt suffered by ladies. The 2019 Act, in criminalising triple talaq, is doing exactly that.
Keiran lastly claims that the Act, by singling out Muslim males, entrenches dangerous stereotypes. This concern has already been addressed within the dialogue on intersectional discrimination, and I don’t intend to revisit it at size. Nevertheless, to reiterate briefly, I argue that the legislative focus of the 2019 Act is on the tangible penalties of triple talaq, and never on broad character judgements about those that have engaged in it.
Apparently, that is the place Keiran invokes Anuj Garg, citing the anti-stereotyping precept. He argues that, very like the regulation challenged in that case, the Act suffers from “incurable fixations of stereotype morality and conceptions of sexual position.” Nevertheless, I query whether or not this analogy holds. In Anuj Garg, the Courtroom struck down a regulation that barred ladies from working in liquor shops primarily based on outdated and paternalistic assumptions about their vulnerability. That regulation presumed ladies’s lack of ability to make decisions for themselves. Right here, nonetheless, the state is just not “defending” ladies from their very own choices, it’s merely responding to an externally imposed hurt – one which has left ladies in a state of authorized and social precarity. To this remaining finish, the anti-stereotyping precept, I submit, applies the place legal guidelines entrench gendered assumptions about capability, morality, or position. It doesn’t prolong to legal guidelines that redress documented and measurable gendered hurt. Conflating the 2 overlooks the lived experiences of Muslim ladies who proceed to be deserted by way of a follow that the Courtroom has already declared unconstitutional.
In Closing
Removed from being redundant, the Act confronts the uncomfortable social actuality that triple talaq continues to supply tangible harms regardless of its nullification (1). The Act’s differential therapy of Muslim males is just not arbitrary discrimination however a tailor-made response to the precise vulnerabilities confronted by Muslim ladies inside their private regulation framework (2). Claims of intersectional discrimination misapply the idea, prioritising theoretical consistency over lived expertise (3). Not like the problematic reasoning in Narasu, which rested on colonial assumptions of developmental hierarchies, the Act responds to empirical realities quite than paternalistic assessments of “group readiness” (4). Lastly, Article 15(3) legitimately shields the laws as a needed protecting measure, with legal penalties serving not as punishment however because the muscle behind constitutional guarantees (5).
*Rajyavardhan Singh is a second-year undergraduate scholar at Rajiv Gandhi Nationwide College of Legislation, Punjab.
