Group 8 28th Feb Class Notes - Tests, Arbitrariness, and Triple Talaq Presentation

Group 8 Class Notes - 28/02/2018

State of West Bengal vs. Anwar Ali Sarkar

·       Helps to establish the language that is to be used for the ‘Tests”.

o   Two stage tests –

§  Intelligible differentia

§  Nexus

EP Royappa v State of Tamil Nadu

·       Don’t try to shift the jurisprudential law in another direction. Subtly say that the ‘Reasonable Classification Test’ is a subset of ‘Arbitrariness’ and helps to decide the later.

·       The chief secretary of Tamil Nadu was transferred for vague reasons by making arbitrary posts for him.

·       The judgement shows a shift from a more formalistic to substantive understanding of justice.

·       Example of Arbitrariness – right to appeal, but only within 48 hours.

Legal Arbitrariness

·       The drinking age, or any age of majority are entirely arbitrary in nature, but are permitted since they are reasonable in nature. For example, a person having to attain the age of 18 before being allowed to drive has the motive of only wanting mature people to drive. In order to do so, either state monitors the age and mental and physical development of each individual or set a specific age at which a person is assumed to be mature. The prior method is unreasonable and shall violate the right to privacy on many levels but the later is reasonable though arbitrary.

·       Other examples:

·       Cow Slaughter Ban

·       Attendance requirements in school and colleges.

Om Kumar v. Union of India – 2 judge bench

·       Proportionality test/Principle of proportionality:

·       This test was originally a global concept, and has been used more often in India in the last 15 years.

·       The proportionality test had started off in Russia, it then took over Europe, Canada and Australia.

·       Proportionality has already been used in some Indian cases.

·       Facts of the case:

·       A scam was initiated in Delhi in in the 90’s regarding selling govt. flats and inviting investors in constructer projects.

·       Some perpetrators were punished more harshly for the same kind of allegations.

·       According to the test, a measure restricting a right must –

·       Serve a legitimate goal (legitimate goal stage)

·       It must further such goal. (suitable or rational connection stage)

·       Must not be a less restrictive, but an equally effective alternative.

·       Must not have a disproportionate impact on the right-holder (balancing stage).

Group 7 presentation -

Case:

·       Shayara Bano vs. Union of India – The Triple Talaq Case

Main issue – 

·       Constitutionality of Triple Talaq under Article 14.

Arguments –

·       E.P Royappa vs. State of Tamil Nadu

o   Arbitrariness principle – equality is the antithesis of arbitrariness.

o   If act is arbitrary, it cannot be equal according to practical logic and under the law, thus violates Article 14.

o   Manifest Arbitrariness – done capriciously, irrationally and without adequate determining principles.

Justice Nariman –

·       Triple Talaq is no longer a personal law – falls under article 13. Says that it allows a muslim man to ‘arbitrarily’ divorce his wife, thus standard of arbitrariness. Hence, uses this to prove Triple Talaq unconstitutional.

Justice Kurian –

·       Doesn’t give his opinion about whether personal laws are subject to constitution.

Justice Khehar –

·       Dissenting opinion from that of Justice Nariman.

·       Article 14 can only be invoked against state action. It is uncodified, furthermore, triple talaq is only an issue of sunni muslim law.

·       No legislation is involved here therefore no state action is justified (but the other justices believe that a legislation exists in the form of the Shariat application act)

·       Legislatures job is to fix such inequality, to legislate against triple talaq.

·       The Judges job however, is only to critique a written law.

Ratio –

·       The test of manifest arbitrariness can be used to negate legislation, legislative and executive action.

·       Triple talaq is constitutionally impermissible.

Question and Answers –

·       Q – Value of the precedent questionable –

·       ANS –

o   No consensus amongst the judges, some use the arbitrariness, some don’t. Do personal laws fall under article 13 then – the case does not answer this.

·       Q – Did the Muslim minorities get benefited by the judgement – minority outreach?

·       Ans – No

o   Hindu succession act 1956 – First led to arousal of questions against a UCC

o   Uniformity in such a legislation would be hard to achieve because equality means different things to different people.

o   Most laws will automatically follow Hindu personal laws if a uniform civil code is applied. Muslim laws shall be subsumed under the Hindu personal laws; similar to Sikh, Jain and Buddhist personal laws being subsumed under Hindu personal laws.

o   The UCC also challenges the customary laws of the various Indian indigenous tribes.

o   There are to many differences in the personal laws for this to work under the current circumstances.

·       Q – Does the Indian state have legitimacy to implement UCC without violating the basic structure doctrine? –

·       ANS –

o   The UCC is against personal laws which are an extension of one’s personal identity.

·       Q – UCC and gender equality –

·       ANS –

o   Under Section 10 of the Indian Divorce Act, adultery, when committed by men, has to be proved along with an additional marital offence. This discriminates against women.

o   UCC draft is currently trying to be raised.

·       NOTE –

o   Alternative to UCC includes a reform of individual personal laws or, reform in no personal laws but in general laws which are not covered by either secular or personal laws, for example the domestic violence act, day care, maternity leave etc.