Professional Documents
Culture Documents
SSRN Id2548455
SSRN Id2548455
* Assistant Professor, Symbiosis Law School, Pune. Symbiosis International University. Author
can be reached at shelke_atmaram@yahoo.com; ashelke@symlaw.ac.in.
ARTICLESCONTENTS
INTRODUCTION 169
CRITICAL ANALYSIS OF THE ACT 170
LEGAL IMPLICATIONS OF THE ACT 172
A. Surrendering sovereign and constitutional power for vested
political interests 172
B. Bigotry in a democracy 175
C. Arbitrary rule of legislatures vis-a-vis constitutionalism and role
of the judiciary 177
CONCLUSION 179
168
INTRODUCTION
In April 1985, the Supreme Court of India in Shah Bano Case1
held that a Muslim husband is responsible to pay maintenance under
Section 125 of Criminal Procedure Code, 1973. The judgment in Shah
Bano2 led to widespread community protests in India. The Muslim
community’s reaction against the Supreme Court verdict ranged from
numerous meetings and conferences organized by several Muslim
groups, such as the Jamiate-Ulema-e-Hind, the Jamia Millia Islamia,
and the All Indian Muslim Personal Law Board to mass protests in
various regions of India, including Uttar Pradesh and Bihar, which
have a significant Muslim population.3 The Rajiv Gandhi government
finally succumbed to the opposition and pressure of the community
and enacted the Muslim Women (Protection of Rights on Divorce)
Act, 1986 (Hereinafter referred to as the “Act”). The Act had been
challenged in the Daniel Latifi case4 on the ground of violation of
fundamental rights under Part-III of the Constitution of India. The
Court in Daniel Latifi5 held that the Act was constitutionally valid.6
169
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6
170
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013, Volume-
II, Number 1. ISBN: 978-93-5143-018-6
171
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6
to Section 5 of the Act on the date of the first hearing of the application
under sub- section (2) of Section 3 of the Act, parties to the dispute (i.e.
divorced woman and her former husband) may resort to remedies under
Sections 125 to 12813 of Cr.P.C., 1973. For the purpose of this Section,
the date of the first hearing of the application according to explanation
provided under Section 5 of the Act means the date fixed in the summons
for the attendance of the respondent to the application. For the
application of Sections 125 to 128, an ‘affidavit’ or ‘declaration’ in
writing from both the parties is necessary. An ‘affidavit’ or ‘declaration’
according to Section 5 may be made either jointly or separately. As word
‘and’ is used in the Section, an affidavit by both the parties is mandatory.
Further, word ‘may’ has been used in Section 5 of the Act, therefore,
application of Sections 125 to 128 of Cr. P. Code 1973 is discretionary,
and it has provided discretion to the parties, to be governed or not to be
governed by Sections 125 to 128 of the Cr.P.C. 1973. Since Sections 125
to 128 of Cr. P. Code 1973 are dealing with criminal liability, the
discretion to apply it under Section 5 of the Act has several adverse legal
and jurisprudential implications.
172
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013, Volume-
II, Number 1. ISBN: 978-93-5143-018-6
14. THOMAS J. GARDNER, TERRY M. ANDERSON, CRIMINAL LAW 11 (11th ed., 2009).
15. Jose A. Estevez Araujo, Multilevel Democracy, in NEW CHALLENGES AND
OPPORTUNITIES FOR LOCAL DEVELOPMENT, SOCIAL COHESION AND
INNOVATION 94 (Andrea Gallina and Soren Villadsen ed. 2007).
16. Jose A. Estevez Araujo, Multilevel Democracy, in NEW CHALLENGES AND
OPPORTUNITIES FOR LOCAL DEVELOPMENT, SOCIAL COHESION AND
INNOVATION 94 (Andrea Gallina and Soren Villadsen ed. 2007).
17. Id. P. 94.
18. In ordinary delegation of power by the Parliament to Executive at least there are Legislative
and Judicial Controls on mis-use of power. Under the above Section absolute power is
assigned to governing subject. There are no further controls. For further discussion on
permitted delegation or excessive delegation, see, In re Delhi Laws Act, AIR 1951 SC 332;
Gwalior Rayon Silk Mfg. v. The Asst. Commissioner of Sales AIR 1974 SC 1660 etc.
19. 1968 AIR 1232, 1968 SCR (3) 251
20. The legislative function includes decision about correct application of criminal law.
173
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013, Volume-
II, Number 1. ISBN: 978-93-5143-018-6
21. See, Municipal Corporation of Delhi v. Birla Cotton, Spinning and, Weaving Mills Delhi &
Anr. 1968 AIR 1232, 1968 SCR (3) 251.
22. See, Gwalior Rayon Silk Mfg. v. The Asst. Commissioner of Sales AIR 1974 SC 1660; Mahe
Beach Trading Co. v. Union Territory of Pondicherry (1996) 3 SCC 741.
23. Registrar, Co-operative Societies v. K. Kunjabmu AIR 1980 SC 350.
174
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013, Volume-
II, Number 1. ISBN: 978-93-5143-018-6
B. Bigotry in a democracy
An equilibrium of just and rational social order is the ultimate
objective of a law. The object of the supreme law of the land is not
only to shun dictatorship, nepotism and favoritism but also to control
and warn the people against exaggerated sentimentalism and narrow
sectarianism. Bigotry even by the representatives of the people is
unexpected and condemned in a democratic country. If bigotry is
allowed, it may lead to dictatorship, nepotism etc.
Bigotry is not tolerated even by common law. According to Coke,
statutory law is subject to common rights and reason. He asserts that
“…(I)n many cases, the common law will control Acts of Parliament,
and sometimes adjudge them to be utterly void: for when an Act of
Parliament is against common right and reason, or repugnant, or
impossible to be performed, the common law will control it, and
adjudge such Acts to be void.”24 The infamous Adolf Hitler and his
companions followed rules and procedures while enacting and
implementing laws which were unjust and prejudicial. Needless to
say, they were condemned for supporting inhuman laws. Thus the Act
has again raised well debated question, Can a majority pass legislation
based on prejudicial, irrational or mere political considerations?
24. Thomas Bonham v. College of Physicians (1610), 8 Co. Rep. 114-118. An impact of the Lord
Coke’s judgment has been apparently seen in Marbury v. Madison 5 U.S. 137, 1 Cranch 137,
2 L. Ed. 60 (1803) even though the court has not expressly quoted Lord Coke.
175
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013, Volume-
II, Number 1. ISBN: 978-93-5143-018-6
25. GORDON GRAHAM, THE CASE AGAINST THE DEMOCRATIC STATE: AN ESSAY
IN CULTURAL CRITICISM 36 (2002)
26. Id., P. 28.
27. It is important to note that the Universal Declaration of Human Rights (UDHR), 1948 in its
preamble has expressly pointed out that human rights shall be protected by rule of law. The rule of
law and right of equality (i.e. Human Right) do not tolerate the “prejudicial preferences”.
28. “Prejudicial Preferences” are unreasonable classifications and therefore against right of
equality granted and protected under Article 14 and other Articles of the Constitution of India.
29. Members of Parliament are free to discuss and deliberate upon the subject matter without any
fear. Even laws relating to defamation are not applicable to them.
30. The word “Domicracy” here means governance by arbitrary dominance in a democratic society.
176
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6
177
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013, Volume-
II, Number 1. ISBN: 978-93-5143-018-6
33. Such as Fundamental Rights and remedy provided to implement fundamental rights,
independent of judiciary to ensure justice to all etc.
34. Id., Ft no. 32. P. 3.
35. Bhagawati J. in Bachan v. State of Punjab AIR 1982 SC 1336.
36. See, Soli J. Sorabjee, Rule of Law: Its Ambit and Dimension, RULE OF LAW IN FREE
SOCIETY 5 (N.R. Madhva Menon ed., 2008).
37. ANDREW ALTMAN, ARGUING ABOUT LAW: AN INTRODUCTION TO LEGAL
PHILOSOPHY 1 (2nd ed., 2001).
178
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6
CONCLUSION
The arbitrary rule of the parliament is antithetic to the rule of law
and constitutionalism. The rule of law and constitutionalism shall be
used as tools to control arbitrary majoritarianism. The judiciary shall
see, whether the law is just and fair to all the citizens and not only to
people in power or majority. The law and the interpretation of the law
shall be dictated by reason and not by bigotry of the society or party
in power. According to Roman jurist Cicero, “Law is the highest
reason, implanted in the nature, which commands what ought to be
done and forbids opposite…the origin of justice is to be found in law,
for law is its natural force; it is mind and reason of intelligent man,
the standards by which justice and injustice are measured.”38 In
every modern democratic society in order to deliver justice de-
politicization of the religious dogma is need of the hour.
Constitutionalism and rule of law mandate the preservation and
protection of constitutional morality and institutionalized protection.
The judicial institution is duty bound to rise above the prejudices and
institutionalize the justice. As observed once by Dr. Upendra Baxi,
“Modern India seems to have at least two parallel legal systems: one
for the rich and the resourceful and those who wield political power
and influence and the other for the small men without resources and
capabilities to obtain justice or fight injustice.”39 Legalizing parallel
discretionary system under Section 5 of the Act, has led to
legalization and institutionalization of arbitrariness and raw power.
“Law then is seen more and more as a system through which such
power-grabbing and sharing is sought to be legitimated.”40 Political
parties have failed to promise that they would not hobnob with
communal forces or not mix religion with their strategies of building
vote banks, which is the biggest blow to secularism.41
179
Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6
180