27-Dec-2018: The Muslim Women (Protection of Rights on Marriage) Bill, 2018
The Muslim Women (Protection of Rights on Marriage) Bill, 2018 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 17, 2018. It replaces an Ordinance promulgated on September 19, 2018. Note that a Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced and passed in Lok Sabha on December 28, 2017. The 2017 Bill is listed for withdrawal.
The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal. It defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by a Muslim man resulting in instant and irrevocable divorce. Talaq-e-biddat refers to the practice under Muslim personal laws where pronouncement of the word ‘talaq’ thrice in one sitting by a Muslim man to his wife results in an instant and irrevocable divorce.
Offence and penalty: The Bill makes declaration of talaq a cognizable offence, attracting up to three years’ imprisonment with a fine. (A cognizable offence is one for which a police officer may arrest an accused person without warrant.) The offence will be cognizable only if information relating to the offence is given by: (i) the married woman (against whom talaq has been declared), or (ii) any person related to her by blood or marriage.
The Bill provides that the Magistrate may grant bail to the accused. The bail may be granted only after hearing the woman (against whom talaq has been pronounced), and if the Magistrate is satisfied that there are reasonable grounds for granting bail.
The offence may be compounded by the Magistrate upon the request of the woman (against whom talaq has been declared). Compounding refers to the procedure where the two sides agree to stop legal proceedings, and settle the dispute. The terms and conditions of the compounding of the offence will be determined by the Magistrate.
Allowance: A Muslim woman against whom talaq has been declared, is entitled to seek subsistence allowance from her husband for herself and for her dependent children. The amount of the allowance will be determined by the Magistrate.
Custody: A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children. The manner of custody will be determined by the Magistrate.
22-Aug-2017: SC strikes down instant triple talaq
The Supreme Court banned a controversial Islamic practice of instant divorce as arbitrary and unconstitutional, in a landmark verdict for gender justice that will stop Muslim men calling off a marriage on a whim.
In a split verdict, three of the five all-male judges on the case said the practice of saying “talaq”, or divorce, three times in one go – sometimes even over email and WhatsApp – violated women’s right to equality and was not integral to Islam.
The dissenting vote came from Chief Justice of India JS Khehar and justice S Abdul Nazeer, who argued instant talaq should be suspended and the government asked to bring a law to regulate the practice within six months. The majority verdict overrides the minority view.
Tuesday’s bench of five judges were from India’s major faiths -- Hinduism, Christianity, Islam, Sikhism and Zoroastrianism. Some Muslim groups which contended the state had no right to interfere in religious matters.
Muslim men in India can still divorce using two other forms of talaq that have a three-month cooling off period. Muslim women usually divorce using a practice called Khula. Instant talaq, or “talaq-e-biddat”, is banned in 22 Muslim-majority countries, including Pakistan, for being sinful and arbitrary.
The Supreme Court verdict cannot be misused by the government to try to interfere with personal laws through legislation. Former attorney general Mukul Rohatgi, who had represented the government in the case, said the verdict “will go a long way in ensuring justice to Muslim women.” Rohatgi had asked the court to scrap all forms of triple talaq.
12-Jan-2017: Triple talaq certificate issued by chief kazi has no legal sanction.
Madras high court has ruled that any document issued by the chief kazi approving or certifying triple talaq has no legal validity. The court also restrained kazis from issuing any such certificates until the matter is deliberated by the Muslim Personal Law Board.
Topic Segment: GS Paper I: Role of women and women’s organization, population and associated issues, poverty and developmental issues, urbanization, their problems and their remedies.
12-Dec-2018: Centre rejected minority tag for Lingayats, ASG to HC
The union government has told the Karnataka High Court that it has rejected the recommendation of the state government to grant religious minority status to Lingayat and Veerashaiva communities. The centre reiterated its earlier stand that these communities are part of the Hindu religion and do not form another religion of their own.
Karnataka government recommended the religious minority status for Lingayat/Veerashaiva. Lingayats and Veerashaivas are demanding status of a separate religion for a long time. The Karnataka State Minorities Commission constituted a seven-member panel to look into the demand for minority status and the committee recommended in favour of the demand.
Later on, back in March this year, the Karnataka state cabinet decided to recommend to the centre grant of religious minority tag for Lingayat and Veerashaiva Lingayat community. The opposition Bhartiya Janata Party in the state termed the decision by the Karnataka Congress government as an attempt to divide the Hindus.
Who are Lingayats and Veerashaivas?
Lingayats are followers of 12th-century social reformer Basavanna and his vachana (verses) philosophy while Veerashaivas are a sub-sect of Lingayats who preceded Basavanna. Veerashaivism has its roots in the Vedas and Agamas, and they do not worship any god other than Shiva. The sub-sect can be found spread across states of Karnataka, Kerala, Maharashtra, Andhra Pradesh and Telangana.
Who is Basavanna?
Basavanna was a 12th-century social reformer. The revolution that Basavanna led came years after the Buddha. It was Basavanna and his contemporary Sharanas who launched a very strong spiritual, social and religious rebellion against Brahminical hegemony. Basavanna had declared that "work is worship". He gave women equal status in his movement through the vachanas (verses). In order to take the social movement closer to the people, Basavanna and all the other Sharanas voiced their concerns in simple Kannada vachanas so that even lay people could comprehend them.
9-Nov-2018: No double jeopardy bar if there was no trial
The bar of double jeopardy does not arise if an accused was discharged of a criminal offence, even before the commencement of trial, on the basis of an invalid sanction for prosecution, the Supreme Court has held.
Article 20 (2) of the Constitution mandates that a person cannot be prosecuted or punished twice for the same offence.
A Bench of Justices R. Banumathi and Indira Banerjee held in an October 30 judgment that if an “accused has not been tried at all and convicted or acquitted, the principles of double jeopardy cannot be invoked at all.”
If an earlier order of sanction was found to be invalid, there is no bar for the competent authority to issue a proper order of sanction for prosecution, Justice Banumathi, who wrote the verdict for the Bench in a case under the Prevention of Corruption Act, observed.
“The courts are not to quash or stay the proceedings under the Act merely on the ground of an error, omission or irregularity in the sanction granted by the authority unless it is satisfied that such error, omission or irregularity has resulted in failure of justice,” the Supreme Court observed.
The judgment is based on an appeal filed by the State of Mizoram against an order passed by the Guwahati High Court in August 2015, upholding a Special Court decision to decline to entertain a second charge sheet filed in a corruption case against the accused, Dr. C. Sangnghina, on the ground of double jeopardy.
Allowing the appeal, the apex court observed that the accused was earlier discharged due to lack of proper sanction and the principle of double jeopardy did not apply.
“There was no bar for filing fresh/supplementary charge sheet after obtaining a valid sanction for prosecution. Once it found that there was no valid sanction, the special court should have directed the prosecution to do the needful. The special court has not given sufficient opportunities to produce valid prosecution sanction from the competent authority. It erred in refusing to take cognisance of the case even after production of valid prosecution sanction obtained from the competent authority and the High Court was not right in affirming the order of the special court,” the SC reasoned.
The corruption case was filed by the Aizawl police in February 2009 for misappropriation of public money. During inquiry, it was detected that the respondent had acquired valuable assets disproportionate to known sources of income.
The first invalid sanction for prosecution was issued by the Commissioner-Secretary, Department of Personnel & Administrative Reforms (DP & AR) directly without the Governor’s approval. Following the discharge of the accused by the special court, the Governor accorded a fresh sanction in December 2013.
Double jeopardy
Fundamental right which is guaranteed under Article 20(2) of Constitution of India incorporates the principles of “autrefois convict” or Double jeopardy which means that person must not be punished twice for the offence. Doctrine against Double Jeopardy embodies in English common law’s maxim ‘nemo debet bis vexari, si constat curice quod sit pro una iti eadem causa” (no man shall be punished twice, if it appears to the court that it is for one and the same cause). It also follows the “audi alterum partem rule” which means that no person can be punished for the same offence more than ones. And if a person is punished twice for the same offence it is termed Double jeopardy.
Meaning of Jeopardy: The word Jeopardy refers to the “danger” of conviction that an accused person is subjected to when one trial for an criminal offence.
Meaning of Double Jeopardy: The act of putting a person through a second trial of an offence for which he or she has already been prosecuted or convicted.
This means that if a person is prosecuted or convicted once cannot be punished again for that criminal act. And if a person is indicated again for the same offence in the court then he has the plea of Double Jeopardy as a valid defense.
Indian Law And Double Jeopardy: The Double Jeopardy principle existed in India prior to the enforcement of the Constitution of India. It was enacted under in section 26. Section 26 states that “provision as to offences punishable under two or more enactments,- where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be prosecuted or punished under either or any of those enactments, but shall not be liable to be punished twice for the same offence.
And section 403(1) of (the old) Cr.P.C[4],1898 (Section 300 of the amended Criminal Procedure Code,1973) , which states, 300(1) a person who has once been tried by a court of competent jurisdiction for an offence and convicted or acquitted of offence shall, while such conviction or acquittal remains in force, not to be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been under sub- section (1) of the section 221 or for sub-section (2) thereof. It is to be noted that, the Code of Criminal procedure recognize both the pleas of autrefois acquit as well as autrefois convict. The conditions which should be satisfied for raising either of the plea under the Code are: firstly; that there should be previous conviction or acquittal, secondly; the conviction or acquittal must be by be a court of competent jurisdiction, and thirdly; the subsequent proceeding must be for the same offence. The expression “same offence” shows that the offence for which the accused shall be tried and the offence for which he is again being tried must be identical, and based on the same set of facts.
Section 71 of IPC runs as- limits of punishment of offence made up of several offences where anything which is an offence is made up of parts is itself an offence, the offender shall not be punished of more than one of such his offences, unless it be so expressly provided.
Constitutional Implication: In Constitution of India, Double Jeopardy is incorporated under Article 20(2) and it is one of fundamental right of the Indian Constitution. And the features of fundamental rights have been borrowed from U.S. Constitution and the concept of Double Jeopardy is also one of them. Principle of Double Jeopardy is incorporated into the U.S. Constitution in the Fifth Amendment, which says that “no person shall be twice put in Jeopardy of life or limb.”
Article 20 of the Indian Constitution provides protection in respect of conviction for offences, and article 20(2) contains the rule against double jeopardy which says that “no person shall be prosecuted or punished for the same offence more than once.” The protection under clause (2) of Article 20 of Constitution of India is narrower than the American and British laws against Double Jeopardy.
Under the American and British Constitution the protection against Double Jeopardy is given for the second prosecution for the same offence irrespective of whether an accused was acquitted or convicted in the first trial. But under Article 20(2) the protection against double punishment is given only when the accused has not only been ‘prosecuted’ but also ‘punished’, and is sought to be prosecuted second time for the same offence. The use of the word ‘prosecution’ thus limits the scope of the protection under clause (1) of Article 20. If there is no punishment for the offence as a result of the prosecution clause (2) of the article 20 has no application and an appeal against acquittal, if provided by the procedure is in substance a continuance of the prosecution.
Can Different Charge Is Laid For The Same Action Or Same Offence?
Doctrine against Double Jeopardy in Constitution of India, Article 20(2) says that ‘no person shall be prosecuted and punished for the same offence more than once.” But it is subjected to certain restrictions. And it is to be noted that Article 20(2) of Constitution of India does not apply to a continuing offence.