RESEARCH PAPER ON

ORDINANCE MAKING POWERS AND A CONTEXUAL STUDY OF TRIPLE TALAQ

IN THE SUBJECT OF

THE CONSTITUTION OF INDIA

SUBMITTED TO:
DR. SYAMALA KANDADAI
ASSOCIATE PROFESSOR-CUM-DIRECTOR (RESEARCH & TRAINING)

SUBMITTED BY

ADITI BHAWSAR
SEMESTER III/A
ROLL NO. - 728
NATIONAL UNIVERSITY OF STUDY AND RESEARCH IN LAW, RANCHI

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 TABLE OF CONTENTS

CHAPTER I……………………………………………………………………………………1
INTRODUCTION……………………………………………………………………………....1
1.1 Introduction………………………………………………………………..…………………4
1.2 Research Questions…………………………………………………………....……………..5
1.3 Objective of the Study………………………………………………………..……………....6

CHAPTER II……………………………………………………………………………………6
ORDINANCE MAKING POWER IN INDIA: CONCEPTUALUNDERSTANDING….…6
2.1 General Introduction………………………………………………………………………….6
2.2 Doctrine of Separation of Powers…………………………………………………………….8
2.3 Important cases with reference to Ordinance Making Power……….……..............................9

CHAPTER III…………………………………………………………………...……………...10
POWERS OF THE PRESIDENT IN PROMULGATING ORDINANCES UNDER THE
CONSTITUTION OF INDIA,1950...........…………………………………............................10
3.1 Power of President to Promulgate Ordinance under the Constitution……………………….10
3.2 Validity of Ordinance Making Power by Courts………………………………...…………..11
3.3 Misuse of Ordinance Making Power: Parliamentary Safeguard……………………… .........12

CHAPTER IV……………………………………………………………………………..........14
ORDINANCE IN CONTEXT WITH TRIPLE TALAQ.........................................................14
4.1What is Triple Talaq.....................................................................……………………............14
4.2 Triple Talaq Ordinance is better for politics than a bill………………………………….......15
4.3 Lacunae in Triple Talaq........................................……………………………………...........16

CHAPTER V…………………………………………………...…………………………….....19
5.1 Conclusion...............................................................................................................................19

Bibliography…………………………………………………………………………………..…20

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 ABSTRACT

President is the Executive head of the state and he has been given various powers under the
constitution of India. President is the nominal head of the state and can only work in
accordance with the aid and advise of the council of ministers. Article 123 and 213 of Indian
Constitution provides power to the President and Governor to promulgate any ordinance.
Articles 123 and 213 gives an extra-ordinary power of promulgation of an Ordinance to the
Executive Head of the Country and to the Executive Head of the State(s) respectively, to meet
with the unforeseen or urgent situation, when the Parliament or the State Legislature are not in
session. Ordinance is a decree or law promulgated by a state or national government without the
consent of the legislature. According to the ordinance, giving instant Triple Talaq has been made
illegal and void, and will attract a jail term of three years for the husband. The Ordinance states
that even though the Muslim Women (Protection of Rights on Marriage) Bill, 2017 is pending in
the Rajya Sabha and despite the Supreme Court has observed that the practice of Triple Talaq is
unconstitutional, the practice still carries on. But there are some lacunae associated with the
Triple Talaq Ordinance and it needs to be reviewed.

Keywords : Ordinance, President, Triple Talaq, Legislature, Executive

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 CHAPTER – I
INTRODUCTION

1.1 Introduction:
Legislature is considered to be one of the important organ of the Government. But sometimes the
situation arises where the legislative power of the legislature is shifted to the Executive, and the
exercise of the legislative power by the executive is said to be the Ordinance-making power of
the Executive. But this power is to be exercised subject to the conditions as stipulated under the
Constitution. Ordinance ordinarily is said to be the law promulgated by the state government
through the Governor or by the central government through the President, as Articles 123 and
213 provides the power to the President and the Governor respectively. The exercise of this
power can also be traced back from pre-independence era of British Raj to post-independence
era. So, it cannot be said to a new concept as it has been exercised before the commencement of
the Constitution of India. Members of the constituent also debated for and against this power and
after the discussion in the assembly this power has been enshrined in the Constitution of India.

Need of Ordinance-making power occurs only when the actual law making body is not in active
position of legislating a law. So, the executive can only exercise the Ordinance-making power
during the recess of the Parliament or the State Legislature. Satisfaction of the President and the
Governor is the prima facie consideration for exercising this power and the aid and advice of the
Council of Ministers shall also been taken into the consideration. Since, this power is against the
theory of Separation of Power which is the basic feature of a democratic country like India, the
law making power of the executive also have certain limitations. The power to promulgate
ordinances is uncharacteristic of the parliamentary form of Government which the Indian
Constitution envisages.

The existence of necessity for promulgating the Ordinance is not justifiable. The validity of an
Ordinance cannot be tested on the grounds similar to those on which an executive or judicial
action is tested. So, in other words it can be said that an Ordinance cannot be challenged on the
grounds of non-applicability of mind.

“Ordinance-making power is always considered as the temporary law based on the circumstances
or the situation exists. A law cannot be made by re-promulgating an Ordinance to have a

4
continuous effect, for making it permanent, the Ordinance has to undergo with proper legislative
procedure of Parliament or the State Legislature, as the case may be. While exercising this power
the constitutional safeguard should be kept in mind and it has to protect the Fundamental Rights
as given by the Constitution. Subject on which Ordinances can be promulgated must have the
limitations. The President and the Governor should made laws only which the Parliament and the
State Legislature is subject to respectively. The ambit of this power is co-extensive with
legislative powers of Parliament.”

The President or the Governor can withdraw an Ordinance at any time. The Ordinance must be
laid before the Parliament or the State Legislature, as the case may be, when it reassembles and
ceases to operate at the end of six weeks from the date on which the Parliament or the State
Legislature reassembles. A resolutions may also be passed by the Houses to cease the effect of
an Ordinance.

Articles 123 and 213 gives an extra-ordinary power of promulgation of an Ordinance to the
Executive Head of the Country and to the Executive Head of the State(s) respectively, to meet
with the unforeseen or urgent situation, when the Parliament or the State Legislature are not in
session. The President is not to be said as the repository of legislative power of the Union and
simultaneously the Governor is also not the repository of the legislative power of the State. It is
the certain circumstances which demands the need of an immediate laws, so that to cope-up with
the contingencies.

1.2 Research Questions:

1. Whether the nature of Ordinance-making power is similar to legislative power of the

Parliament?
2. Whether the exercise of Ordinance-making power has some constitutional limitations?

3. Whether the Triple Talaq has a lacunae?

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1.3 Objective of the Study:

1. To examine the constitutional provision of Ordinance-making power of the President and the
Governor.

2. To examine the nature and constitutionality of Ordinance-making power.

3. To evaluate and appreciate the constitutional limitation of Ordinance-making power.

4. To examine the scope of judicial decisions for restricting the misuse of Ordinance-making
power.

5. To find out the lacunae in the Ordinance of Triple Talaq.

CHAPTER -- II
ORDINANCE MAKING POWER IN INDIA: CONCEPTUAL UNDERSTANDING

2.1 General Introduction:

Any function exercised by the legislative bodies in their legislative capacity is legislative law or
legislation in the eyes of the state. Legislation is said to be one of the necessary measures of the
government, because it is the way in which the government secures the power to achieve the
goal.1

For making of a temporary law by way of Ordinance by the President as the Executive Head of
the Union or by the Governor as the Executive Head of the State, during the recess of the
Legislature i.e., when it is not in session and when it becomes urgently necessary to make such
law or when there is the circumstances which requires immediate action is enshrined in the
Constitution of India.

1
Joint Select Committee on the Government of India Bill, 1919, Minutes of Evidence, 521 (Proceedings, Oct. 13,
1919).

6
In case of the Union the power is exercisable by the President with the exception of, when both
the Houses of Parliament are in session. In the instance of the States it is exercisable by the
Governor except when the Legislature i.e., the two Houses, where the Legislature is bi-cameral,
is in session.

“This Ordinance-making power is not exercised in normal course of action of law making so this
can be exercised only when there are situations exist which makes it necessary to take immediate
action. An ordinance proclaimed by the president or governor has the same power as a law of
parliament or state law, as the case may be. By an Ordinance, the President cannot make any law
which Parliament would have no authority to enact or by the Governor who would not have the
legislative power of the State to enact and which is subject to the limitations to which Parliament
or the State Legislature is subjected.”

An Ordinance must be present before the Houses of Parliament that fit together again. An
Ordinance ceases to work at the end of six weeks after the reassembly of Parliament. If the
houses are reconstructed on different dates, the six-week period is calculated from the last of
those dates. Without being approved by parliament, the Ordinance can lasts up to six months and
six weeks. All acts done and completed under an unapproved Ordinance will lapse.

The Constitution of India provides the specific provisions for the purpose of exercising the
legislative functions by the Executive. Legislative Power of the President has been provided
under Article 123 and Legislative Power of the Governor has been specified under Article 213 of
the Constitution of India.

Article 123 of the Constitution of India, 1950 reads as:

“Article 123: Power of President to promulgate Ordinances during recess of Parliament3-

(1) If at any time, except when both Houses of Parliament are in session, the President is
satisfied that circumstances exist which render it necessary for him to take immediate action, he
may promulgate such Ordinances as the circumstances appear to him to require.

(2) An Ordinance promulgated under this article shall have the same force and effect as an Act
of Parliament, but every such Ordinance –

7
a) shall be laid before both Houses of Parliament and shall cease to operate at the expiration of
six weeks from the reassembly of Parliament, or, of before the expiration of that period
resolutions disapproving it are passed by both Houses, upon the passing of the second of
those resolutions; and

b) may be withdrawn at any time by the President.

Explanation: Where the Houses of Parliament are summoned to reassemble on different dates, the
period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.

(3) If and so far as an Ordinance under this article makes any provision which Parliament
would not under this Constitution be competent to enact, it shall be void.”

2.2 Doctrine of Separation of Powers:

Under the Constitution of India, the President have the executive powers, the Parliament have
the Legislative powers and the Judiciary have the judicial powers. The President holds his office
for a fixed period and his powers and functions are enumerated in the Constitution itself. The
Parliament has been given power by the Constitution to make laws subject to the Constitution
and there is no such limitation on its legislative powers. Similarly, the Judiciary also performs
independently in its field and there is no interference with other organs of the government. It is
the clear concept of Separation of power that the Executive should perform their own functions
and the Legislative and Judiciary will not be interfering with them, the Legislature should
perform their functions under its own ambit and the Executive and the Judiciary will not be
interfering with them and similarly the Judiciary should perform its functions without the
interference of the Executive and the Legislature. However the Supreme Court and High Courts
have been given the power of judicial review and they can declare any law passed by the
Parliament or Legislature as ultra vires or unconstitutional. So, taking consideration these

8
factors, Kania, C.J. and some eminent jurists are of the opinion that Doctrine of Separation of
Powers has been accepted by the Constitution of India.

In Golak Nath v. State of Punjab2, Subba Rao, C. J. observed:

“The Constitution brings into existence different constitutional entities, namely, the Union, the
States, and the Union Territories. It creates three major instruments of powers, namely, the
Legislature, the Executive and the Judiciary. It demarcates their jurisdiction minutely and
expects them to exercise their respective powers without over stepping their limits. They should
function within the spheres allotted to them.”

2.3 Important cases with reference to Ordinance Making Power:

“Some of the important decisions and constitutional amendments which brought certain changes
in the provision of Articles 123 is discussed as below:

The first evolution in Ordinance can be seen in 1970, In R.C. Cooper v. Union of India3, The
constitutionality of the Banking Companies (Acquisition of Undertakings) Ordinance, 1969
was challenged before the court. This act sought to nationalize 14 of the India’s largest
commercial banks through the Ordinance. Supreme Court held that President’s decision could
be challenged on the ground that ‘immediate action’ was required; and the Ordinance has been
passed primarily to by-pass debate and discussion in the legislature.

In 1980, the power of President to issue an Ordinance under Article 123 was questioned in A. K.
Roy v. Union of India4 in respect of the National Security Ordinance, 1980. The Supreme
Court held that judicial review of the President’s satisfaction regarding the necessity to issue an
Ordinance is not totally excluded. This satisfaction of the President cannot regarded a purely
political question and kept beyond judicial review. However, the court refused to go further into
the question, because the Ordinance had been replaced by an Act by then and the material placed
before the court on this ground was merge. It was also stated that exercise of judicial review over

2
1967 AIR 1643, 1967 SCR (2) 762
3
AIR 1970 SC 564 ; 1970 SCR (3) 530
4
1982 AIR 710, 1982 SCR (2) 272

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the President’s Ordinance only when there were substantial grounds of challenging the decision,
and not at every casual and passing challenge.

In 1987, in D. C. Wadhwa v. State of Bihar5, it was contended that the Ordinance making-power
of the executive can be used only in exceptional conditions and cannot be used as a substitution
for law making power of the legislature. In this matter the court was examining a case were
continuously re-promulgation power was used by State Government under the authority of the
Governor, i.e., repeatedly issuing new Ordinances to replace the old ones, instead of passing a
legislature through the State Legislature. In total 259 Ordinances were re-promulgated by using
Ordinance making power and some of them for as long as 14 years. The Supreme Court argued
that if Ordinance making was made a usual practice, creating an ‘Ordinance Raj’ the courts could
strike down re-promulgated Ordinances.”

CHAPTER -- III
POWERS OF THE PRESIDENT IN PROMULGATING ORDINANCES UNDER THE CONSTITUTION OF
INDIA, 1950

3.1 Power of President to Promulgate Ordinance under the Constitution:

President is empowered to promulgate the Ordinance, which have the same effect and force as
law made by Parliament. But laws made by the way of an Ordinance is temporary in nature and
every such Ordinance is ceases to operate after the six weeks of re-assembly of Parliament,
unless they said Ordinance is withdrawn by the President himself, or disapproved by Parliament.
In case, if there is long need of law or intended to be permanent which was made through an
Ordinance, it must be replaced by a regular process of Parliament.

The authority of Ordinance-making power of the President is as extensive as the legislative

power of the Parliament. Even Courts are not competent to challenge the jurisdiction over the
occasion or purpose or subject matter of an Ordinance, except for the justifiable reason for
exceeding the legislative powers conferred on the Union by the Constitution. However,

5
1987 AIR 579, 1987 SCR (1) 798

10
Parliament has not been in favour of this form of legislation except in so far as it is unavoidable
and there are rules intended to control the exercise of this power.

The exercise of the Ordinance-making power of the President shall be based on his ‘own
satisfaction’ and Courts have no authority to inquire into the reasons for the subjective
satisfaction of the President or into the sufficiency of those reasons. Supreme Court in R. C.
Cooper v. Union of India6 observed, that in issuing Ordinances, the satisfaction of the President
is not final, but Supreme Court did not clarifies the position when the Courts can interfere.
However, the ‘Satisfaction’ of the President’s Ordinance making-power is often debated and
doubted on the ground of ‘mala-fide’.

“An Ordinance when promulgated has the force of an Act of Parliament. It is a law and not the
less so, by reason of not having been passed by Parliament, although it is a piece of temporary
legislation replaceable by an Act of Parliament.”

3.2 Validity of Ordinance Making Power by Courts:

Besides the constitutional validity of the Ordinance-making power of the President or the
Governor, Courts have also given a shape regarding the same issue. Courts in various cases has
given a clear cut decision to issues related to the use of the Ordinance-making power by the
Executive. Since, this power of Ordinance is some short of delegation of power by the
Legislature to the Executive when one of the organ of the government, that is, the Legislature
which consists of the Parliament or the State Legislature, as the case may be, is not in session;
then the other organ of the government, that is, the Executive can exercise the power of
legislation subject to conditions, as the Ordinance making power enshrined under the
Constitution under Articles 123 and 213. But this power is against the Doctrine of Separation of
Power, which is one of the basic characteristic of a democratic country. Due to the reason of
exercising the power of another organ, some of the limitations were applicable to that power.
Courts have held some of the decisions which are carried for the exercising the power of an
Ordinance; these can be considered as the Judicial Scrutiny of the Ordinance making power.

In case of T. Venkata Reddy v. State of Andhra Pradesh7,

6
Ibid
7
1985 AIR 724, 1985 SCR (3) 509

11
“The President cannot promulgate an ordinance unless he is satisfied that there are circumstances
which render it necessary for him to take immediate action. But, President himself determine
whether such a situation has arisen and a court cannot enquire into it i.e. propriety, expediency,
necessity, and motive (behind) of legislative Act. While an executive act can be struck down on
the ground of non-application of mind or mala fides, an Act or Ordinance cannot. An Ordinance
can be invalidated only on the grounds of contravention of constitutional limitations.”

The validity of Ordinance had been challenged at times and the court has upheld its constitutionality
in majority of cases. In R. K Garg v. Union of India8, “the court held that Special Bearer Bonds
Ordinance, 1981 was not ultra vires of Article 123. President is competent to issue an ordinance
amending or altering tax laws. Ordinance power is co-extensive with Parliamentary power, and
while considering the validity of law the court will have nothing to do with the morality of law
and an ordinance might well include a situation created by a law, being declared void by a court
of law. There is no inhibition on the ordinance-making power that it shall not deal with a matter
already covered by a law made by Parliament.”

In A. K. Roy v. Union of India9, “the court held that National Security Ordinance, 1980
(providing for preventive detention) was valid and not violative of Article 14. An ordinance is
like a Parliamentary law. However, it held that ordinance would be subject to the test of
vagueness, arbitrariness, reasonableness, and public interest and that it was passed only when
legislatures were not in session. The Court said that “judicial review is not totally excluded in
regard to the question relating to the President's satisfaction.” The exercise of power under Art.
123 cannot be regarded as a purely political question.”

3.3 Misuse of Ordinance Making Power: Parliamentary Safeguard

In no country (including U. K. and U. S. A.), except India, the Executive is vested with
legislative power. In R.C. Cooper v. Union of India10, (Bank Nationalization Case), “the
Supreme Court held that “under the Constitution, the President being the Constitutional Head,
normally acts, in all matters including the promulgation of an Ordinance, on the aid and advice
of his Council of Ministers”. Such power may be abused by a minority support to enact a
measure for a temporary period as not being sure of support in Parliament; by a majoring

8
AIR 1981 SC 2138.
9
Ibid
10
Ibid

12
government in order to avoid debate in Parliament and possible amendment, and advising the
President to prorogue parliament at any time having this specific object in mind (mala-fides).
(By 44th Amendment, judicial interference in the case of mala fides has been established).”

The case of D. C. Wadhwa v. State of Bihar11, furnishes a glaring example of abuse of ordinance
power. In Bihar, in between 1976 to 1981, there were 256 ordinances promulgated in the State,
and all of these kept alive by the way of re-promulgation without being brought before the
Legislature. The court called it a ‘subversion of democratic process’ and ‘colourable exercise of
powers’ and held that “this amounted to a fraud on the Constitution. The Executive cannot usurp
the function assigned to the legislature under the Constitution. The Court insisted that the
government cannot by-pass the legislature and keep ordinances alive indefinitely without
enacting their provisions into Acts of legislature.

It may be noted that while legislation through Parliament, an elected body, is open and
transparent and is subjected to criticism on the floor of the House, an ordinance is purely
executive decision, neither transparent nor open nor subject to any open discussion in any forum.
Further, Parliament's control over the Executive's ordinance-making power is ex post facto i.e., it
is exercised after the Ordinance has been promulgated and not before.

The Ordinance comes into effect as soon as it is promulgated. If later the ordinance comes to an
end for any reason, the ordinance does not become ‘void-ab-initio’. It was valid when
promulgated and whatever transactions have been completed under the ordinance cannot be re-
opened when the ordinance comes to an end.

Parliamentary Safeguards:
The ordinance must be laid before the Parliament when it re-assembles and ceases to operate at
the end of six weeks from the date on which Parliament reassembles; if, however, both Houses
pass resolution disapproving of it before the expiry of six weeks, the Ordinance ceases to operate
on the day of passing of such resolution as per the provision under Article 123 (2) (a). When the
two Houses of Parliament assemble on different dates, the period of six weeks is to be reckoned
from the later of the two dates as provided in Article 123 (2). Thus, the Parliament must pass a
law to replace the ordinance within six weeks of its assembling. The maximum duration for
which an Ordinance may last is seven and a half months as prescribed in Article 85, six months

11
Ibid

13
cannot intervene between two sessions of Parliament, and the Ordinance, would cease to operate
six weeks after the Parliament meets. And if the President or the Governor wants to end the
effect of an Ordinance then they can withdraw the said Ordinance.

Besides passing resolutions disapproving of an Ordinance, Parliament gets a chance to review

the measure if government seeks to replace an Ordinance by a Bill; and when government seeks
so, a statement explaining circumstances which necessitated immediate action by an Ordinance
must accompany such Bill. However, no debate on above statement is allowed.

Articles 123 and 213 cannot be said to be undemocratic. An ordinance is promulgated on the
advice of the Council of Ministers, which remains answerable to the Parliament. If the executive
misuses or abuses its power, the House of Parliament may not only disapprove the ordinance but
also pass a vote of no-confidence against the Council of Ministers.

It can be noted, the power of the President to issue ordinance is co-extensive with legislative
power of Parliament; it is no higher and no lower than the power of Parliament to make laws. If
and so far as an Ordinance under this article makes any provision which Parliament would not
under this Constitution be competent to enact, it shall be void. But, an appropriation from out of
the Consolidated Fund cannot be made by an ordinance. Further, an ordinance may make
provision with respect to a matter in List I (Union List) and List III (Concurrent List), but not in
List II (State List), except when proclamation of emergency is in operation.

CHAPTER - IV

ORDINANCE IN CONTEXT WITH TRIPLE TALAQ

4.1 What is Triple Talaq?

It is an instant divorce custom being practiced among the Muslim fraternity, conceding the
balance of ending the matrimonial alliance, in the favour of their male counterparts, i.e.,
husbands, by simply pronouncing the word “TALAAQ” three times. The unfair practice does not
take into account the intricacies of human nature governed by sudden emotional outbursts in the
heat of the moment and sometimes giving them an easy way out to further their desire of
polygamy. Off late, there were growing innumerable instances of it gaining a tech savvy
dimension as well, through the use of electronic media. Therefore, this chauvinistic and

14
paternalistic practice, as declared by the Supreme court, shall ultra vires not only infringe the
right to equality (Article 14) but also is gender discriminatory. Hence, no amount of argument
that the judgment is an intrusion to the personal laws of the religion, can fairly justify its
perpetual practice, profession, and propagation.

There are three forms of talaq (divorce) in Islam: Ahsan, Hasan and Talaq-e-Biddat (triple or
instant talaq).Ahsan and Hasan are revocable but Biddat is irrevocable.

Triple talaq is a practice mainly prevalent among India's Muslim community following the
Hanafi Islamic school of law. Under the practice, a Muslim man can divorce his wife by simply
uttering "talaq" three times but women cannot pronounce triple talaq and are required to move a
court for getting divorce under the Sharia Act,1937. Triple talaq divorce is banned by many
Islamic countries, including Pakistan, Bangladesh and Indonesia.

4.2 Triple Talaq Ordinance is better for politics than a bill

The Supreme Court had in January 2017,said that 're-promulgation of ordinances is a fraud on
the Constitution' and cannot become a 'parallel source of legislation'.

There is a fundamental weakness in the ordinance that could manifest when matters come to
court and the wife must prove that talaq has been said to her, in the absence of witnesses or
documentary evidence. It becomes a case of one person’s word against another’s rendering
criminal trials inconclusive, often with the victim securing no redress. Activists have suggested
that triple talaq be treated on par with domestic violence attracting the provisions of the
Protection of Women from Domestic Violence Act (PWDVA), which primarily offers civil
recourse and constant monitoring by the state.

The Ordinance fails to satisfy Article 123 of the Constitution which enables the President to
promulgate an Ordinance when Parliament is not in session. They said this power is to be
exercised only in instances requiring immediate attention but in the instant case, there was no
need for immediate action when the Bill was pending before the Rajya Sabha as after the
Supreme Court’s verdict, Indian Muslim men could no longer divorce their wives by way of a
talaq having the effect of instantaneous or irrevocable divorce.

15
The impugned Ordinance has defined Talaq as Talaq-e-biddat or any other form of talaq having
the effect of instantaneous and irrevocable divorce and thus made its pronunciation a punishable
offence thereby forcing couples towards matrimonial disharmony and unnecessary indulgence
with the criminal justice system whereby a complaint even by a third party or a fuming spouse
can lead to several levels of involvement of state machinery, even if it is compounded later.

The petition said the Ordinance fails to appreciate that Muslim marriage is part of the personal
law and is in the nature of a contract besides objecting to Section 3 read with Section 4 of the
Ordinance which makes a pronouncement of “certain ineffective words” a punishable offence
upto 3 years.

4.3 LACUNAE IN TRIPLE TALAQ

The Lok Sabha on December 28 passed the Muslim Women (Protection of Rights on Marriage)
Bill, 2017, which has been hailed as a landmark step in securing the rights of Muslim women by
outlawing the practice of triple talaq. However, the as the adage goes, the devil lies within the
detail, and a critical analysis of this Bill indicates that it is a weak legal framework, which in
turns exposes the lacunae in lawmaking in India.

In Shayara Bano v Union of India12, in August, 2017, the Supreme Court of India in a 3:2
judgment, held that instant triple talaq is arbitrary and therefore unconstitutional. The majority of
the bench held that triple talaq is not part of essential feature of Islam. Justice Kurian Joseph
even stated that triple talaq is condemned by the Quran and therefore cannot be even considered
an aspect of Muslim personal law.

 The Muslim Personal Law (Shariat) Application Act, 1937 is the enabling legislation which
made Muslim personal law or Shariat, applicable to all Muslims in India. However, there has
been a sense of ambiguity about what all constitutes Shariat law as the Act does not specify
it. In matters of divorce, Muslim men can unilaterally divorce their wives (known as ‘talaq’,
the Arabic for divorce). However, if a Muslim woman wishes to divorce her husband, she has

12
MANU/SC/1031/2017

16
 to make an application to the court under Section 2 of the Dissolution of Muslim Marriages
Act, 1939. The Attorney General had informed the Supreme Court that parliament will enact
a law laying down grounds on which Muslim men can divorce their wives. However, the
Muslim Women (Protection of Rights on Marriage) Bill, 2017 introduced by the law minister
fails to address this point, rather it seeks to criminalise the practice of triple talaq in a bid to
deter the practice.

 The marriage between a Muslim man and a Muslim woman is in the nature of a contract. The
procedure to be followed in case of a break-down should be civil in nature and not criminal.
The remedy to a contractual wrong, should not be to introduce a criminal offence. Triple
talaq is merely the wrong form of divorce as recognised by the Supreme Court. However, the
Bill seems to blur the dividing lines between civil law and criminal law.

There were contradictions in the Bill, while there is a provision for three-year jail term, the Bill
also provides women right to seek maintenance from the husband, and questioned how a jailed
husband would provide that amount, and urged the government to set up a corpus to help such
women. The Bill's provisions would close all ways for reconciliation.

 Clause 7 of the Bill states that the offence of pronouncing triple talaq is a cognisable and
non-bailable offence. A non-cognisable offence is an offence whereby the police cannot
arrest a person without a warrant. Whereas, in cognisable offences, for serious crimes, the
police may not have time to get a warrant and hence the police can take cognisance of the
offence and arrest the accused immediately. Private wrongs are usually non-cognisable
offences, such as bigamy. For a non-cognisable offence, the aggrieved person (the wife in
this case), must file a complaint seeking the arrest of the accused, then the magistrate will
decide whether an arrest warrant should be issued or not. However, by making the offence
of triple talaq a cognisable offence, the police can arrest Muslim men without any form of
judicial oversight to determine whether a warrant should be issued, and the police can take
a Muslim man into custody even if the wife does not file a complaint.
 Although the Bill provides for a magistrate to provide the wife a subsistence allowance,
there is no clarity whether an interim relief with the allowance can be provided or if the
allowance will be provided only after the conviction of the husband, which in turn would

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 mean a long wait for the woman in question. It must be kept in mind that Section 125 of
the Code of Criminal Procedure (CrPc) already places an obligation on a husband to
provide maintenance to his wife and dependent children.

 The Bill fails to address some of the major social evils facing Muslim women, such as the
practice of polygamy and nikah halala. Nikah halala is an Islamic practice that requires a
woman to marry and sleep with another man in order to return to her first husband. Women
are sometimes made to this without their consent, due to the demands of their ex-husbands,
and men who sleep with the woman often charge a fee to do so.

 The government has publicly stated that it has not consulted any Muslim organisation before
drafting this bill. This indicates very poorly on the drafting procedures adopted by the law
ministry. It is essential for any legislation that all stakeholders are consulted before coming to
a final position. It is also disturbing to note that the Bill was passed in the Lok Sabha on the
same day it was introduced, raising serious questions about the manner of parliamentary
deliberations while dealing with such important legislation. The present Bill leaves much to
be desired and one can only hope that the Rajya Sabha acts as a check on this hasty
piecemeal legislation and that greater insight will prevail.

 There are no factors for calculating allowance which would be given to the women.

5.1 Conclusion

“The Ordinance is issued only when there is urgency and situations that seeks some immediate
actions for maintaining the peace and public order, but satisfaction of the President or the
Governor regarding the situation is the foremost requirement for exercising this function.
In this context, the discretionary power regarding the issue of promulgation of an Ordinance by
the President or the Governor shall be exercised with regard to the ‘satisfaction’. The term
‘satisfaction’, here referred to, is satisfaction by the President or the Governor, as the case may
be. Satisfaction here can be referred as the Subjective Satisfaction and the Objective Satisfaction.

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Subjective satisfaction from the executive is to be required regarding the existence of
circumstances and the necessity to take urgent legislative action. On the other way, the objective
satisfaction lies with the Council of Ministers. If the choice of subjective satisfaction to which
the president determines promulgation of an Ordinance, is considered independent of such
ministerial advice, then the president could at his own discretion to issue a regulation, as it was done
by the Governor-General during the British Raj. Since, the exercise of Ordinance-making power is
due to arise of an emergency situation, the principle of aiding and advising the President, by the
Council of Ministers, to take urgent legislative action, is a Parliamentary principle but
compelling the President to abide by the aid and advice of the Council of Ministers in not a
sound principle.”

Although the Triple Talaq has been declared illegal but, there are lacunae present in the bill.
“Violence against women has been acknowledged as one of the crucial social mechanisms by
which women are forced into a subordinate position compared with men and therefore a
violation of women’s equality rights,” the report said. “Passing legislation, however, does not
indicate judicial or executive sensitivity to women’s rights. Faithful implementation of the laws
is thus the essence for good governance.”

Bibliography

A. BOOKS

1. Singh, M.P., V.N. Shukla’s Constitution of India, 12th Edition (Eastern Book Company,
Lucknow, 2015):

2. Bakshi, P. M. (2013). The Constitution of India (12th ed.). Delhi: Universal Law Pub. Co.
Pvt. Ltd.

3. Jain, M.P., Indian Constitutional Law, 6th Edition, Vol. I (Lexis Nexis Butterworths, Nagpur,
2010)

B. ARTICLES
1. Tara, Nayana, “Judicial Review of Ordinances in India: A Case for reviewing Motives”, SCC
OnLine, (2014) 8 SCC J-15.

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2. “Preventing further normalization of ‘extraordinary’ ordinance making power”, SCC
Online, CNLU LJ (97) [2017-18] 231.
3. Pandey, A. P., “Hundred Years of Ordinances in India: 1861-1961”, The Indian Law
Institute.
4. Mandal, Saptarshi., Triple Talaq Judgment and the Continuing Confusion about the
Constitutional Status of Personal Law.

C. JOURNALS:

1. Bag, Amartya, “Ordinance Making power of President: A Parallels Power of Legislation?”

SSRN, 2010.

2. Raj, Rishi; Mishra, Mayank, “Ordinance Making Power: Constitutional Scheme and Judicial
Interpretation”, International Journal of Law and Policy Review, Vol. 3, No. 2 (2014), ISSN
(O): 2278-3156.

3. Bhanu, Dr. Arvind P.,“Ordinance-Making Power :Issues of Abusing and Disregard of

Legislature”, Indian Journal of Research, Vol. 2, Issue: 11, (2013).

4. Kumar, Alok Prasanna, “The Ordinance Route: Exception or Rule?” Economic & Political
Weekly (Law and Society), Vol. 53, Issue No. 20, (2018):

D. CASE LAWS

1. Golak Nath v. State of Punjab, 1967 AIR 1643, 1967 SCR (2) 762.
2. R.C. Cooper v. Union of India, AIR 1970 SC 564 ; 1970 SCR (3) 530.
3. A. K. Roy v. Union of India, 1982 AIR 710, 1982 SCR (2) 272.
4. D. C. Wadhwa v. State of Bihar, 1987 AIR 579, 1987 SCR (1) 798.
5. T. Venkata Reddy v. State of Andhra Pradesh, 1985 AIR 724, 1985 SCR (3) 509.
6. R. K Garg v. Union of India, AIR 1981 SC 2138.

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E. WEBLIOGRAPHY

1. https://www.ndtv.com/india-news/triple-talaq-or-instant-divorce-to-be-an-offence-cabinet-
clears-executive-order-1918767.
2. https://economictimes.indiatimes.com/news/politics-and-nation/government-to-move-
ordinance-for-new-law-that-on-triple-talaq/articleshow/63997913.cms.
3. https://www.greaterkashmir.com/news/india/congress-calls-triple-talaq-bill-full-of-lacunae-
bjp-calls-it-instant-relief/270416.html.
4. http://www.newindianexpress.com/nation/2018/feb/08/remove-flaws-will-welcome-triple-
talaq-bill-all-india-muslim-personal-law-board-1770337.html.
5. https://thewire.in/law/bill-criminalising-triple-talaq-a-hasty-legislation-exposes-gap-in-
indian-lawmaking.
6. https://www.firstpost.com/india/triple-talaq-bill-not-enough-marital-rape-anti-dowry-
legislation-among-5-criminal-laws-indian-women-need-just-as-urgently-4303291.html.
7. https://indianexpress.com/article/india/re-promulgation-of-ordinances-fraud-on-constitution-
sc-4456354/.
8. https://scroll.in/article/895448/civil-offence-for-hindus-crime-for-muslims-the-triple-talaq-
ordinance-is-plainly-discriminatory.
9. https://www.news18.com/news/india/triple-talaq-ordinance-murder-of-democracy-should-be-
withdrawn-says-muslim-law-board-1891261.html.

10. http://www.manupatrafast.com

11. http://www.scconline.com

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