The ‘criminalisation’ test

The government claimed the passage of the Triple Talaq Bill, 2019, to be a win for gender justice. But concerns continue to be raised with respect to the law in several quarters. The first is that the law is inappropriate, given that it applies criminal sanction in a matter of Muslim marriage, which is a civil contract, and that it violates the fundamental rights and freedoms granted under Articles 14, 21 and 25 of the Constitution. Secondly, it is also claimed that the amended law violates the fundamental principles of criminal law, especially on the account of the ‘criminalisation’ test.

It must be understood that criminal law is a public law and any wrongdoing having the potential to adversely affect the social order, in general, will attract penal sanctions irrespective of the nature and extent of harm caused to the victim of the crime. The triple talaq law, when considered in terms of the consequences of the conduct upon the social and moral fabric of society, would withstand the scrutiny of the first test of intervention by criminal law.

Secondly, the choices of sanction depend on the type of behaviour requiring intervention. The persistence of the menace of triple talaq as a behaviour is intended to be reacted to and, therefore, deterrence appears to be imperative in this case.

Thirdly, it is not for the first time that criminal law has been invoked for socio-cultural issues. In fact, depending upon their ramifications, issues related to marital discord, Sati, dowry, environment, etc., regularly invite criminal sanctions under local and special laws in India.

Fourthly, it is hard to fathom that this law would be hit by unconstitutionality on grounds of violation of the rights to equality, life and personal liberty, or religious freedom. To be in violation of the right to equality or life, the provisions, once enacted, would have to suffer from the vice of arbitrariness or un-reasonableness. However, any criminalization, in and of itself, cannot be deemed to be arbitrary if the same creates an intelligible differentia and the intelligible differentia has a nexus with the object sought to be achieved by the Act. Even if one were to look beyond such doctrinal tests for arbitrariness, one would find that the law is protected by Article 15(3), allowing for the State to enact laws discriminating in favour of women. Further, the issue of religious freedom has been settled by the Supreme Court in the case of Shayara Bano vs Union of India, which held that triple talaq does not qualify as an essential religious practice and therefore cannot find protection under Article 25 of the Constitution.

The term ‘criminalisation’ is being invoked frequently in regard to this law. But, many do not understand the term without the present contextual reference. So, it is necessary to look at the issue in the context of established principles of criminalisation. As Nicola Lacey asks, “What are the facts, beliefs and principles which should underpin a political body’s choice to proscribe certain sorts of behaviour by means of the criminal justice system?”

Lacey states that “criminalisation charts human freedom, determining what people are not allowed to do, it affects justice, equality, legitimacy and monetary resources.” Similarly, Antony Duff, too, proffers, “criminalization is an account of the principles and values that should guide decisions about what to criminalize and about how to define offenses.”

It has also been suggested that criminalization should not be invoked without valid reasons. For instance, the function of criminalization is to declare an act as a “morally wrongful activity.” Applying this reasoning to the criminalization of triple talaq can help us understand the proposition. In the context of criminalization, the validity of the law needs to be tested on the touchstone of the following principles.

Firstly, the autonomy principle developed by Lacey states that the “punishment for breach can…be justified because, by offending, the individual (free and rational) is deemed to choose not only to offend but also the punishment ‘price-tag’ attached to his conduct.” Those who resort to instant Triple Talaq are autonomous beings capable of understanding the implications and consequences of their acts. So, they ought to be held responsible in light of this principle.

Secondly, the harm principle, as propounded by J S Mill, forms the core of criminalization. It empowers the State to intervene coercively to regulate conduct that risks and harms others. In the instant case, the law seeks to regulate the conduct of triple talaq, which is harmful not only to Muslim women, but to society at large.

The third principle is that of legal moralism, according to which “the reason why moral wrongs are seen as public wrongs that should be condemned by criminal sanction is because they are serious violations of the respect that we owe to each other and thus denial (at least implicitly) of the moral status of those who are their objects. Those harms or wrongdoings that affect the public at large and can be dealt with in morally appropriate ways with the help of punitive laws should be criminalized.”

The fourth principle is that of wrongfulness which emphasises the intrinsic wrongness of the act. Developed by Andrew Ashworth, this principle endorses the inherent nature of wrongfulness in the practice of triple talaq.

Fifthly, the dignity principle propounded by Dan Cohen states that the main goal of criminal law ought to be to defend the unique moral worth of everyone. The act of triple talaq essentially violates the dignity of women in a despicable manner, therefore making the principle relevant.

Notwithstanding the above argument, it is important to explore non-punitive social sanctions to address this practice effectively. Also, the burden of proof should be shifted from the accused to the prosecution.

(The writer is Chairperson, Centre for Criminology & Victimology, National Law University Delhi)