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- Recently, the Union Cabinet decided to take the ordinance route towards making instant triple talaq a criminal offence.
- This decision has come under a lot of criticism as being a sign of undue impatience.
- Several sections believe that this is a matter that required deliberation, especially after keeping in mind that serious objections were raised to some of the provisions of the Bill passed by the Lok Sabha.
- It is important to note that there is an ongoing debate on the desirability of criminalising instant triple talaq.
A Note on the The Muslim Women (Protection of Rights on Marriage) Bill, 2017:
- The Muslim Women (Protection of Rights on Marriage) Bill, 2017 was introduced in Lok Sabha by the Minister of Law and Justice, Mr. Ravi Shankar Prasad on December 28, 2017.
- The Bill makes all declaration of talaq, including in written or electronic form, to be void (i.e. not enforceable in law) and illegal.
- Further, 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.
Importantly, the Bill makes declaration of talaq a cognizable and non-bailable offence.
A husband declaring talaq can be imprisoned for up to three years along with a fine.
What is a cognizable offence?
A cognizable offence is one for which a police officer may arrest an accused person without warrant.
What about allowances?
- 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.
- Further, the amount of the allowance will be decided by a First Class Magistrate.
What about the custody of minor children?
- A Muslim woman against whom such talaq has been declared, is entitled to seek custody of her minor children.
- Further, the determination of custody will be made by the Magistrate.
What is Talaq-e-biddat?
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.
The Issue of Contention:
- The Muslim Women (Protection of Rights on Marriage) Bill, as approved by the Lok Sabha, sought to give statutory form to the Supreme Court ruling of 2017 which had declared talaq-e-biddat as illegal.
- In its provisions, the Bill made this form of divorce punishable by a three-year prison term and a fine.
- Facing Opposition concerns, the government proposed significant changes to dilute the provisions relating to the treatment of talaq-e-biddat as a criminal offence.
- Unfortunately, despite a notice for these amendments being given, the matter was not taken up in the Rajya Sabha in the last session.
- It was not taken up in the Rajya Sabha due to a lack of consensus.
- Currently, it is not clear as to what may have prompted the government to take recourse to the extraordinary power of promulgating an ordinance.
- It is supposed that the upcoming elections to some State Assemblies this year may be a contributing factor.
What are the changes to be introduced through the ordinance?
- These changes do address some of the reservations about the original Bill.
- Firstly, it makes the offence cognisable only if:
- a) the woman, or b) one related to her by blood or marriage, against whom triple talaq has been pronounced, files a police complaint.
- Second, the offence has been made compoundable. This means that the parties can settle the matter between themselves.
- Third, it provides that a magistrate may grant bail to the husband after hearing the wife.
- It is believed that these amendments will restrict the scope for misuse by preventing third parties from setting the criminal law in motion against a man pronouncing instant triple talaq against his wife. Further, these amendments will also leave open the possibility of the marriage continuing by allowing bail and settlement.
- The mere lack of consensus in the House is not a good enough reason to promulgate an ordinance.
- It is believed by some that this could even amount to a subversion of the parliamentary process. Further credence to this can be given when we acknowledge the fact that the Bill has been passed in one House and the other is likely to consider it in an amended form.
- Unfortunately, the core of the issue still remains unaddressed, i.e. whether a marital wrong, which is essentially a civil matter, should lead to prosecutions and jail terms?
- Interestingly, when the law declares instant triple talaq to be invalid, it only means the marriage continues to subsist- it is somewhat self-contradictory for a law to both allow a marriage to continue while proposing a jail term for the offending husband.
- In a recent development, the SC has approved a shoot-to-kill order for a tigress.
- The question to be asked here is whether or not the objective is to make forests safe for humans, or for wildlife?
- There has been a situation where a five-year-old tigress from Pandharkawada in Maharashtra, has been accused of killing and even eating more than a dozen people over the last two years.
- A ‘shoot-to-kill’ order was issued against the tigress.
- The Earth Brigade Foundation (EBF) had filed a plea to the Supreme Court of India to overturn this ‘shoot-to-kill’ order. However, this plea was later dismissed.
- The EBF’s main contention is that all the kills have taken place within designated forest areas or on their periphery. This forest is home to spillover tigers from the nearby Tipeshwar Wildlife Sanctuary.
- Human encroachment has been alarmingly on the rise and it disrupts contiguity of the habitat, thereby multiplying the chances of man-animal conflict.
- As a matter of concern, there is heavy pressure of illegal grazing, with livestock consuming a huge proportion of the food and water meant for wildlife.
- Local people take cattle “on contract” from rich owners to graze them illegally in the forest.
- It is important to note that the EBF’s case is not to save one tigress, but to keep wild habitats safe for wildlife to ensure their long-term survival.
- There has been a misuse of the term ‘man-eater’ as well. The term “man-eater” is the legacy of the British Raj. Having said that, it is now used whenever it is necessary to scare people, including those who rule on what is just, into demanding the killing of a tiger/leopard involved in a man-animal conflict.
What do the National Tiger Conservation Authority protocols say?
It says that “Human beings killed due to chance encounters may also be eaten by the animal [especially an encumbered tigress in low prey base area] … [This is] not sufficient for classifying a tiger/ leopard as a ‘man-eater.’
The recent case of the tigress at Pandharkawada is looked upon as a textbook example of this as it involves an encumbered tigress (who is currently supporting two cubs), chance encounters (killings in the forest/forest boundary), and bodies consumed in a low prey-base area (the degraded forest).
- The President of the United States of America, Donald Trump announced this week that it would be slapping $200-billion worth of Chinese exports with 10% tariff, hiking it up to 25% by the year-end.
- As a consequence of this, almost 6,000 items will be hit by the new U.S. tariffs, from September 24 onward.
- Importantly, the tariff announcement from the President of the United States of America came with the warning, “If China takes retaliatory action against our farmers or other industries, we will immediately pursue phase three, which is tariffs on approximately $267 billion of additional imports.”
Larger Background and Context:
- The issue of trade wars is a topical issue these days, and should be looked into from the perspective of a global phenomenon which naturally does have an impact on India as well.
- At its core, this stems for the desire of certain countries towards ‘protectionism’. Currently, there are signs of a trade war between the US and China, with each country raising import barriers and duty rates on a few products. Further, President Trump has been claiming that unilateralism in trade is good for the U.S.
- A global trade war will hurt everyone, but the question is to what extent. All economies, will be adversely affected. If there happens to be a trade war that escalates between the US and China, it is estimated that global economic growth could slow from 2.9% to 2.2% over the next four years. This estimation was carried out by a consultancy named Wood Mackenzie.
- There are a number of countries with the largest trade surplus with the United States. This list is led by China, which exports $375 billion more than it imports. China is followed, far away, by Mexico ($71 billion), Japan (69 billion), Germany (65 billion), Vietnam (38 billion), Ireland (38 billion), and Italy ($31 billion).
- Since June 1, 2018, European companies exporting steel to the U.S. have been forced to pay a 25 percent duty on the import price, and 10 percent for aluminum. In response to this decision by the U.S., the European Union (EU) has threatened to slap levies on imports of whiskey and motorcycles from the U.S. Trump, in turn, is reviewing whether he can impose higher tariffs on European car imports in the event of European retaliation.
Possible Impacts on India:
- From an impact on India perspective, we are dependent on both raw materials as well as the import of intermediate goods. Thus, should the tariffs on intermediate goods be raised globally, this would have an impact on domestic manufacturers in India as well. This could affect our ‘Make in India’ initiative.
- Higher tariffs on products can increase the cost of various raw materials.
Further, this would invariably lead to a higher inflationary and low growth scenario. Thus, in an overall low-growth scenario, and especially considering that the Indian labour market has experienced ‘jobless growth’ for a while now, a global trade war will put further stress on India’s labour market.
- Further, it is important to note that a situation of high inflation and low growth happened during the period of the ‘Great Depression’.
- One observes that inflation is generally good for assets such as gold, while having a negative impact on currency and some sectors in the equity market. Further, the three external risk factors, namely a) higher tariffs, b) rising interest rates, and c) elevated bond sales at a time when the domestic banking system is grappling with a renewed stress of bad loans, is a serious threat to India.
- Further, in the wake of the demonetization initiative of the Government, the growth projections did slow down; if a global trade war persists, then India’s own growth projections further take a hit.
- Generally speaking, any unexpected turbulence in the global financial markets could negatively affect flows to emerging markets. This can generate major challenges for a wide range of emerging market currencies; particularly in countries with high corporate debt levels, significant foreign debt holdings or weakening economic fundamentals.
- Also, India imports soyabean from the U.S., in the event of a trade war, the cost of imports of soyabean from the U.S. would be higher.
Analysis of the latest step taken:
- There are a few questions which this escalation raises.
Firstly, what is the likely trajectory of this conflict? Experts believe that in the near term, the trade war will cause a shrinkage in bilateral trade volumes.
- However, over the longer term, a reversal of the globalisation of supply chains may take place.
- The second important question is: what impact will this trade war have on the future of the hyper-connected world that we live in today?
- For example: China, and any other nation which trades with the U.S., may seek alternative markets and trading partners, incase the U.S. continues with its retreat into economic isolationism.
- It is feared that global institutions such as the World Trade Organization (WTO) and a myriad other multilateral rule-making bodies may wither away, losing their authority.
- It is also feared that in the much-longer term, there may be a loss for the world community of nations. It is important to note that many of these nations have worked hard to establish the post-World War order.
The Underlying Causes:
- The first cause is that of ‘Reluctant dam managers’.
- In the state of Kerala, as is with the case of other states, more flooding was caused by emergency releases from dams that were full.
In fact, according to a World Bank analysis, while preparing the National Hydrology Project (NHP) in 2015 showed that although weather forecasts are more accurate now, dam managers, who are especially bureaucrats are reluctant to authorise advance controlled releases.
Why is this so?
- Experts believe that this is partly because of the fact that operating schedules are not based on predicted rainfall.
- Currently, the world has moved to dynamic reservoir operations based on weather forecasts.
- It is important to also mention that the political leadership and the bureaucracy too do not tolerate mistakes. As a consequence of this, dam managers are reluctant to risk their careers and order controlled releases in advance.
- The National Hydrology Project (NHP) is improving hydro-meteorological and weather forecasting systems across India. Having said this, it is felt that unless dam managers feel free to take credible risks, these will not be used for dynamic reservoir operations.
- It is increasingly felt by many experts that a ‘plan B’ is also needed for water scarcities such as basin-scale water modelling and analysis supporting contingency planning (inter-basin transfers, linking canals to intermediate storage structures, and water re-allocation to higher-priority uses). Unfortunately, none of these exist in India today.
The second cause is that of Blocked waterways.
- Unfortunately, the story across Kerala is that roads, railway lines and housing colonies are being laid and built without regard for natural water-ways, but with formal planning permission.
- Further, the State Department of Inland Waterways focusses on large waterways while district and local panchayats have no mandate or interest in maintaining these to reduce flood risk. The State Disaster Management Agency also ignores them.
The third is Unprepared populations.
- In spite of the fact that India is a signatory to the UN’s Sendai Framework for Disaster Risk Reduction, unfortunately, little has changed on the ground.
- In Kerala, most people were caught unawares by the ferocity of the flooding.
- Had information been disseminated and absorbed earlier, disaster risks could have been greatly reduced.
Most modern cities have elaborate flood management plans (underground flood basins and spare riverbeds in the Netherlands).
The Way Forward
- It is suggested that River-basin specific flood inundation modelling with climate change simulations is a necessary first step to understand the full impact of potential unprecedented flooding.
- River-basin specific flood inundation modelling with climate change simulations includes worst-case scenarios such as twice the maximum historical rainfall.
- The second important aspect is that the local community should co-manage water resources with the government. This can be done by planning intermediate storage, drainage and emergency responses.
- Further, there must be massive awareness generation, to ensure that airports are not extended into river floodplains. This is an unfortunate situation witnessed with the Chennai airport and the Adyar river.
- It is important to address issues such as deforestation, encroachment and unplanned construction.
- India must use the best-available information for decision-making. This would include,
a) improved hydromet systems and weather forecasts,
b) robust modelling of catchment water flows with simulations of different climate-related scenarios,
c) international norms for safety factors and building codes.
- India must also prioritise buffers, flexibility and adaptability. This includes:
- a) reviewing safety criteria of dams and canals,
b) re-building these with higher safety factors,
c) creating new intermediate storages, and introducing dynamic reservoir management.
- In conclusion, we must reduce the vulnerability of the poor who pay a disproportionately higher cost in calamities.
- The Union Cabinet has cleared an ordinance as well as Presidents assent has been received that makes talaq-e-biddat, or instant triple talaq, a criminal offence that will attract a maximum jail term of three years.
- The new law incorporates safeguards, including a provision for bail to an accused before the start of the trial.
- The offence of instant triple talaq has also been “compoundable” or a provision that allows the wife to withdraw a complaint or approach the magistrate for a dispute settlement.
Cases are on rise
- 201 cases had been reported from across the country after the Supreme Court banned triple talaq in August 2017.
- Since January 2017, 430 cases had been reported until September this year.
- The practice of triple talaq continues in spite of the Supreme Court having annulled it and the Lok Sabha having passed a Bill that is pending in the Rajya Sabha.
Improvised Bail Provisions
- While instant triple talaq will continue to be a “non-bailable” offence the police cannot grant bail at the police station the accused can approach a magistrate for bail even before trial.
- The magistrate could exercise discretion to grant bail “after hearing the wife”.
- The magistrate would also have power to decide the quantum of compensation and subsistence allowance for the victim and her minor children.
- Another safeguard that had been added is that the police can lodge an FIR (first information report) only if the complaint is filed by the wife (victim), her blood relations or her relatives by virtue of her marriage.
- Non-relatives or neighbours cannot lodge a complaint under the proposed law.
Ordinance making powers of the President (Article 123)
- Ordinance can be proclaimed by the President only during recess when the Parliament is not in session
- It can also be issued when only one house is in session.
- The decision of the President to issue an ordinance can be questioned in a court on the ground that the President prorogued one house or both the houses of the Parliament deliberately with a view to issue an ordinance on a controversial subject.
- Ordinance issued by the President must be laid before both the houses of Parliament when it reassembles.
- From the date of reassembly the ordinance is valid for a period of six weeks.
- The President can withdraw an ordinance at any time.
- Ordinance cannot be issued to amend the constitution.
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