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Revisiting 'The Muslim Women (Protection of Rights on Divorce) Act, 1986' In

The Light of Its Impact Over Legal and Jurisprudential Principles

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Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6

Revisiting ‘The Muslim Women (Protection of

Rights on Divorce) Act, 1986’ In The Light of Its
Impact Over Legal and Jurisprudential Principles

PROF. ATMARAM F. SHELKE*

A B S T R A C T : The Muslim Women (Protection of Rights on Divorce) Act, 1986
has not only shaken the conscience of rational human beings but also led to a
number of legal and jurisprudential implications. The legislature under Section 5 of
the Act vested parties with the discretion 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, discretion to apply it under Section 5 of the
Act has also resulted in surrendering sovereign and constitutional power to the
vested political interests. In the era of constitutionalism and the rule of law, there are
a number of checks on arbitrary majoritarianism, which also could not stop arbitrary
majoritarianism under Section 5 of the Act. The piece of legislation remains the
biggest mishap to secular democracy in India.

* Assistant Professor, Symbiosis Law School, Pune. Symbiosis International University. Author
can be reached at shelke_atmaram@yahoo.com; ashelke@symlaw.ac.in.

Electronic copy available at: http://ssrn.com/abstract=2548455

Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6

SYMBIOSIS CONTEMPORARY LAW JOURNAL (SCLJ) 2014

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

Electronic copy available at: http://ssrn.com/abstract=2548455

Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6

REVISITING THE MUSLIM WOMEN, ETC.

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

1. Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945.

2. Id.
3. Kavita R. Khory, The Shah Banu Case: Some Political Implications, in RELIGION AND LAW IN
INDEPENDENT INDIA 153 (2nd ed., 2005). See also Subhashini Ali, Shah Bano judgment was a
landmark in our social and political history, India Today, December 26, 2005, Available at
http://indiatoday.intoday.in/story/shah-bano-judgement-was-a-landmark-in-our-social-and-political-
history/1/192383.html visited on 09/02/14; MARTHA C. NUSSBAUM, WOMEN AND HUMAN
DEVELOPMENT: THE CAPABILITIES APPROACH 173 (1 st ed., 2000).
Note: Mahr means is something that is paid by the man to his wife. It is paid to the wife and to her
only as an honor and a respect given to her and to show that he has a serious desire to marry her
and is not simply entering into the marriage contract without any sense of responsibility and
obligation or effort on his part. (http://www.islamswomen.com/marriage/fiqh_of_marriage_6.php).
4. Danial Latifi and Another v. Union of India (2001) 7 SCC 740.
5. Id.
6. In this case petitioner had challenged the constitutional validity of the Muslim Women (Protection
of Rights on Divorce) Act, 1986. The validity of the said Act was challenged on the ground of
violation of Articles 14, 15 and 21 of the Constitution of India. The petitioners submitted that (See
page 742) (i) Section 125 Criminal Procedure Code, 1973, was enacted as a matter of public policy,
in order to provide a quick summary remedy to persons unable to maintain themselves; that the
provision reflected the moral stance of the law and ought not to have been entangled with religion
and religion-based personal laws; (ii) Section 125 Criminal Procedure Code , 1973, also furthers the
concept of social justice embodied in Article 21 of the Constitution of India; hence excluding
divorced Muslim women from its protection is a discrimination against them; (iii) The inevitable
effect of the Act is to nullify the law declared by the Supreme Court in Shah Bano case, which is
most improper; (iv) the Act is un-Islamic and also has the potential to suffocate Muslim women and
to undermine the basic secular character of the Constitution; (v) the Act is violative of Articles 14
and 21 of the Constitution of India.

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CRITICAL ANALYSIS OF THE ACT

The Act extends to the whole of India except the State of Jammu
and Kashmir. The objectives of the Act as set out in the preamble
read: “An Act to protect the rights of Muslim women who have been
divorced by, or have obtained divorce from, their husbands and to
provide for matters connected therewith or incidental thereto”.
Section 2 of the Act deals with the definitional part of the legislation.
The term ‘Divorced Women’, ‘Iddat Period’,7 ‘Magistrate’ and
‘Prescribed’ are defined under the Section 2 of the Act.
Section 38 of the Act deals with the Mahr or other properties of a
Muslim woman to be given to her at the time of divorce. Sub-clause
a) of clause (1) of Section 3 deals with a reasonable and fair provision
and maintenance within the ‘iddat period’9 by her former husband.
Prima facie it seems that under this Section parliament had not
intended to impose obligation on the husband after the iddat period.
Fortunately, the Supreme Court in Danial Latifi and Other v. Union of
India10 held that:
“The contention that the expression “within” in Section 3(1)(a) should
be read as “during” or “for” cannot be accepted because words cannot
be construed contrary to their meaning as the word “within” would mean
“on or before”, “not beyond” and, therefore, it was held that Act would
mean that on or before the expiration of iddat period, the husband is
bound to make and pay maintenance to the wife and if

7. Section 2 (b) ”Idaat Period” means, in the case of a divorced woman,-

(i) three menstrual courses after the date of divorce, if she is subject to menstruation;
(ii) three lunar months after her divorce, if she is not subject to menstruation;
(iii) if she is enceinte at the time of her divorce, the period between divorce and delivery of
her child or the termination of her pregnancy whichever is earlier.
8. Section 3: Mahr or other properties of Muslim woman to be given to her at the time of divorce:-
(1) Notwithstanding anything contained in any other law for the time being in force, a
divorced woman shall be entitled to- (a) a reasonable and fair provision and
maintenance to be made and paid to her within the iddat period by her former husband;
(b) where she herself maintains the children born to her before or after her divorce, a
reasonable and fair provision and maintenance to be made and paid by her former
husband for a period of two years from the respective dates of birth of such children; (c)
an amount equal to the sum of mahr or dower agreed to be paid to her at the time of her
marriage or at any time thereafter according to Muslim law; and (d) all the properties
given to her before or at the time of or after her marriage by her relatives or friends or
the husband or any relatives of the husband or his friends. In addition to clauses clause
2 to 3 also dealing with procedural and other aspects.
9. Supra note 7.
10. (2000) 7 SCC 740.

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fails to do so then the wife is entitled to recover it by filing an

application before the Magistrate as provided in Section 3(3) but
nowhere has Parliament provided that reasonable and fair
provision and maintenance is limited only for the iddat period
and not beyond it. It would extend to the whole life of the
divorced wife unless she gets married for a second time”.
The Supreme Court rightly interpreted Section 3 of the Act in the
light of objectives laid down in the preamble of the Act. An
interpretation of Section 3(1) (a) definitely protects the interests of a
divorced wife, but at the same time all husbands may not be in a
position to make reasonable and fair provisions and maintenance on
or before the expiration of the iddat period.
In case, a child is maintained by the wife, the husband is responsible
to pay only for two years from the date of birth of the child.11 There is no
rational basis in restricting maintenance to the first two years only.
Practically, a child requires more monetary maintenance when he/she
starts going to school. Non-performance of the duties imposed under
Section 3 of the Act attracts extremely mild punishment provided under
Clause (4) of Section 3 of the Act which provides imprisonment for a
term not more than a year or until payment of unpaid amount. Therefore,
the provision does not have any deterrent effect. The husband may not
perform his duties on time because the punishment only extends until the
payment is made. He can make a payment even on the day of the
proceeding and be free from the liabilities under the Act. A husband may
use this provision as a means to harass the victim (a divorced woman) by
intentionally delaying the payment till the time of final proceeding for
non-performance of his duties under Section 3 of the Act. Under Section
4 of the Act, the responsibility to maintain a divorced woman is imposed
on her relatives (who would inherit property upon her death), children,
parents or the State Wakf Board.
Section 5 of the Act12 offers choice to the parties to be governed by
Sections 125 to 128 of the Criminal Procedure Code, 1973. According

11. See, Section 3 (1) (b), Infra Ft. no. 9.

12. Option to be governed by the provisions of sections 125 to 128 of Act 2 of 1974: If on the date of
the first hearing of the application under sub-section (2) of section 3, a divorced woman and her
former husband declare, by affidavit or any other declaration in writing in such form as may be
prescribed, either jointly or separately, that they would prefer to be governed by the provisions of
[Footnote No. 12 Contd.]

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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.

LEGAL IMPLICATIONS OF THE ACT

There are many legal and jurisprudential implications of the Act,
among which the following are considered to be more prominent:
A. Surrendering sovereign and constitutional power for vested
political interests
The privilege to apply laws (particularly criminal law) or the
authority to impose laws is a sovereign power. It is a sovereign privilege

[Footnote No. 12 Contd.]

sections 125 to 128 of the Code of Criminal Procedure, 1973, and file such affidavit or declaration
in the court hearing the application, the Magistrate shall dispose of such application accordingly.
Explanation:—For the purposes of this section, “date of the first hearing of the application”
means the date fixed in the summons for the attendance of the respondent to the application.
13. Sections 125 to 128 of Cr. P. C. deals with the orders for maintenance of wives, children and
parents. According to clause 1 of section 125 of Criminal Procedure Code, 1973, if any person
having sufficient means neglects or refuses to maintain: (a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury
unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a
Magistrate of the first class may, upon proof of such neglect or refusal, order such person to
make a monthly allowance for the maintenance of his wife or such child, father or mother.

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and inherent power of the State. By enacting criminal laws through

the use of the police power, the State is regulating the conduct of
citizens by telling them what they may not do or what they may do.14
The conduct of citizens is commanded by the law or sovereign
authority. The law (criminal law in this context) is a master and not a
servant or beggar of the culprit. According to Bodin, there are four
marks of sovereignty: the power to pass laws, the power to declare
war, the power of ultimate decision and the power to invalidate
laws.15 According to him the power to create law is divided into
constituent power on the one hand and the power to pass law on the
other.16 For Bodin, the power of ultimate decision is divided into
different powers, such as the final decision on the correct application
of laws or the power to establish the correct interpretation of the
Constitution.17 In other words, application of the law to subjects is a
sovereign power rather than a discretion or privilege of an individual
governing subject or culprit.
In India, this power is derived from and governed by the Constitution
of India. The Parliament has to use the above mentioned power in the
right spirit. The ruling party shall not use this power for vested political
interest or as a vote-bank. Section 5 of the Act delegated power to apply
law to the individual governing subject itself. Therefore, the Act suffers
from the vice of excessive delegation.18 In Municipal Corporation of
Delhi v. Birla Cotton, Spinning and, Weaving Mills Delhi & Anr.,19 the
court has observed that “the Constitution entrusts the legislative
functions20 to the legislative branch of the State, and directs that the
functions shall be performed by that body to which the

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.

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Constitution has entrusted and not by someone else to whom the

legislature at a given time thinks it proper to delegate the function
entrusted to it”. The court in this case further observed that, “a body of
experts in a particular branch of undoubted integrity or special
competence may probably be in a better position to exercise the power of
legislation in that branch, but the Constitution has chosen to invest the
elected representatives of the people to exercise the power of legislation,
and not to such bodies of experts.” The court has clarified that even to a
body of experts only limited powers can be delegated. According to the
Court, abdication of the functions vested in the legislative branch is
inconsistent with the Constitutional scheme.21 The power of delegation is
subject to the qualification that the legislature does not abdicate or efface
itself by setting up a parallel legislature.22 Under Section 5 of the Act, the
power to apply a law is delegated to every individual governing subject.
In other words, each individual governing subject is equated with a
parallel legislature. They are not even a body of experts as expected in a
delegated legislation. Therefore, the Act has touched the highest point of
delegation of power by setting up thousands of parallel legislatures.
There cannot be a better example of complete abdication of legislative
power to apply law to the subjects.
The doctrine of excessive delegation does not allow the Parliament
to delegate the above mentioned power. Further, an excessive
delegation can lead to oppression. As the Supreme Court of India has
rightly observed, “delegation unlimited may invite despotism
uninhibited.”23 Section 5 of Act also contravenes the basic objectives
of delegation of power in modern democracy. In a modern
democracy, delegation of power is justified on various grounds, such
as Pressure upon Parliament, Technicality of Subject Matter,
Experience of Executives, Possibility of Experiment, Complexity of
Modern Administration, etc. The delegation of power under Section 5
of the Act is not done to achieve the above mentioned objectives.
Therefore, this type of delegation is against the spirit of the
Constitution and the rule of law.

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.

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The Rajiv Gandhi government had surrendered sovereign and

constitutional power by delegating powers under Section 5 of the Act.
There is always a possibility of surrendering sovereign and
constitutional powers for some or the other reason. Therefore, in
every civilized State, there is a constitutional mechanism and
guarantee provided against such tendencies. Unfortunately, the above
mentioned constitutional mechanism and guarantee could not prevent
Parliament in the present instance. Surrendering or delegating the
above mentioned sovereign and constitutional power to the governing
subject should be declared as excessive, unconstitutional, invalid and
against basic objectives of delegation of legislative power in a
democratic system.

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.

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The fallacy in a democratic system is that the ‘will of the people’

is authoritative and ought to prevail. Arbitrary majoritarianism is
fundamentally a set of voter’s ideology or preferences. This
apparently presents a major difficulty, a difficulty traditionally known
as ‘the problem of inclusion’25 i.e. inclusion of unwanted, neglected
or oppressed by the representatives of a set of voters in majority. To
defend ‘the will of the people’ irrespective of how it has come about,
whether through ignorance and prejudice or impartial information,
quickly leads to another conflict between rationality and politics in
what is known as the ‘paradox of democracy’.26 The party in majority
may bestow advantages to a class based on some logical ground or for
mere political consideration, which are known as “informed
preferences” and “prejudicial preferences.” “Informed Preferences” or
decisions are based on some factual information or it has some logical
or rational basis. “Prejudicial preferences” are biased preferences or
preferences based on irrelevant or mere political considerations. In a
democracy, it is difficult to draw an exact line between “informed
preferences” and “prejudicial preferences”. “Prejudicial preferences”
are not legitimized in the era of constitutional democracy. The
“prejudicial preferences” are not only against established
‘international legal ideology’27 but also modern democracy and the
Constitution of India.28
In a democracy, a forum (i.e. Parliament) for free discussion and
deliberation29 is not created to dominate the disadvantaged, fragile person
or group. Deliberations and discussions are crucial for preserving and
protecting “rationalism” or “informed preferences”. Legalization of
“irrational dominance” is further controlled and regularized by the
Constitution. An honest democrat shall not support and tolerate
“domicracy”30 or appeasement policy in a democratic system.

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.

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Apart from politics, there is no rational basis for providing

discretion under Section 5 of the Act. Section 5 of the Act is not only
against common right or reason but also a clear example of prejudicial
preferences without any rational basis. As discussed above,
prejudicial preferences and irrational preferences cannot be
legitimized in a true democracy. This type of bigotry on the ground of
religion or otherwise, therefore, is a shame to a civilized democracy
like India. The aforesaid deliberation has also made it apparent that
enactment of the Act does not reflect lack of “political intelligence”
but lack of “political rationalism”.

C. Arbitrary rule of legislatures vis-a-vis constitutionalism and

role of the judiciary
The judiciary plays a pivotal role in a democratic State. The
judiciary under the judicial review is duty bound to see whether the
legislature and executive are working in accordance with the
provisions and standards of the Constitution. If legislatures are
enacting laws which are inconsistent with the Constitution, judiciary
is duty bound to declare the enactment as null and void.
“Though the state legislative ‘police power’ to enact laws to promote
the public health, safety, and welfare, including the criminal law, is a
primordial and sweeping exercise of sovereign power and the democratic
will, such laws must not violate those principles embedded in state and
federal constitutions and be enforced and elaborated by state and federal
courts.” 31 Therefore, the arbitrary delegation of power under Section 5
of the Act by the legislature can be declared against the Constitution of
India.
A pre-requisite of the judicial independence in a democratic State
postulates that judiciary is a protector against arbitrary rule of legislature,
the protector of constitutionalism and ultimately the protector of rule of
law. As it is rightly observed by legal theorist John Hart Ely, “They
(judges) have the political independence needed to overcome the
obstacles that politics has thrown in the path of democratic promises of
the Constitution.”32 The democratic promises are

31. JOHN DELANEY, LEARNING CRIMINAL LAW AS ADVOCACY ARGUMENT:

COMPLETE WITH EXAM PROBLEMS AND ANSWERS 51 (2004).
32. ANDREW ALTMAN, ARGUING ABOUT LAW: AN INTRODUCTION TO LEGAL
PHILOSOPHY 89 (2nd ed., 2001).

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made in the Preamble and other Articles33 of the Constitution of India.

Further at the center of the rule of law is the idea that a government
should not exercise its power in an arbitrary manner.34 As it was rightly
observed by Justice Bhagwati, “whenever we find arbitrariness or
unreasonableness there is denial of rule of law.”35 Further, if there is
cogent evidence of the commission of a crime for which an ordinary
citizen would be arrested, the law cannot be differently applied
depending on the status of the person.36 The status of the person includes
religious, economical, political status of the person. Therefore the
application of criminal law or discretion to apply criminal law (Section
5) based on religious status of the person is contrary to the rule of law
and the democratic promises made in the Constitution of India.
Rule of law principle was invoked in the Senate at the time of
President Bill Clinton’s impeachment proceeding wherein Mr. Hyde
said, “rule of law is one of the greatest achievements of our
civilization, for the alternative to the rule of law is the rule of raw
power.”37 “Raw powers” do not pass the test of rule of law. They are
uncivilized powers or uncivilized ways of exercising the powers. Raw
powers shall be illegitimated by higher judiciary in a modern
democratic State. As discussed above in the present instance
(delegation of power under Section 5 of the Act) the power exercised
by the party in power does not pass the test of the rule of law.
Therefore, the power exercised in order to enact this Act shall be
declared as “raw power” and therefore against the rule of law.
As discussed above, it is a duty of the judiciary to declare arbitrary
rule of legislation as void by taking suo moto action or otherwise.
Fortunately, the Supreme Court of India has interpreted Section 3 of
the Act in the light of the preamble of the Act and provided relief to
the women. Unfortunately, the judiciary has failed to perform its
legitimate role by not declaring Section 5 of the Act as excessive
delegation or unreasonable.

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).

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ETC.

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

38. Cf. HENRY J. ABRAHAM, THE JUDICIAL PROCESS: AN INTRODUCTORY

ANALYSIS OF THE UNITED STATES, ENGLAND, AND FRANCE 7 (3rd ed., 1974).
39. UPENDRA BAXI, THE CRISIS OF THE INDIAN LEGAL SYSTEM 4 (1982).
40. Id., P. 14.
41. See, JYOTI SHARMA. SECULARISM AND AYODHYA POLITICS IN INDIA 97 (2007).

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 Published in “Symbiosis Contemporary Law Journal (SCLJ)”, 2013,
Volume-II, Number 1. ISBN: 978-93-5143-018-6

SYMBIOSIS CONTEMPORARY LAW JOURNAL (SCLJ) 2014

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