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TODAY’S TALK ON EDITORIALS CIVILS360

SEPTEMBER 2, 2017

A blind eye

  • The continuing failure of the Myanmar government to act decisively and urgently to protect civilians from the raging crossfire between the security forces and insurgents is shocking.
  • The recent clashes in the western State of Rakhine have claimed over 70 lives and forced thousands of Rohingya to flee across the border into Bangladesh, in a rapidly deteriorating humanitarian crisis.
  • Most of the victims are women and children, according to the UN’s International Organisation for Migration, which has called for additional aid to cope with Dhaka’s refugee situation.
  • The reactions of the radical Buddhist nationalists, who have traditionally resisted recognition of the Rohingya as citizens of Myanmar, have been predictable. They have demanded even tougher action from the government in the wake of the terror unleashed over the past week, and rubbished the findings of the officially appointed Advisory Commission on Rakhine State, headed by former UN Secretary General Kofi Annan.
  • The Myanmar government has an obligation to act on the recommendations of the Commission, on the guarantee of citizenship rights to the Rohingya, freedom of movement and enforcement of the rule of law. It is inconceivable that the country’s yearning for peace and normal life could be fulfilled in the absence of these minimum prerequisites. The ruling National League for Democracy, which takes legitimate pride in its heroic defiance of the military junta, has a largely unfinished agenda on democratic transition. Enormous powers are vested in the military. The further consolidation of the hard-won freedoms from dictatorship will remain an arduous task so long as a large minority of the population is systematically excluded from the political process.

Unending slowdown

  • India’s economy continues to decelerate with the government’s estimate for first-quarter gross domestic product pegging growth at a 13-quarter low of 5.7% in April-June. The reasons for the protracted slowdown — a slide of five straight quarters from 9.1% in March 2016 — are many and varied.
  • But there is little doubt that the demonetisation exercise combined with the uncertainty around the July 1 adoption of the new indirect tax regime served to significantly dampen economic activity. While the GST-related “inventory deaccumulation” that Chief Statistician T.C.A. Anant referred to may well be reversed in the current quarter as companies across sectors gain comfort with the new tax regime, it is still doubtful whether demand for industrial output is going to attain any meaningful strength.
  • The Reserve Bank of India last month said that its industrial outlook survey had “revealed a waning of optimism in Q2 about demand conditions across parameters and especially on capacity utilisation, profit margins and employment.”
  • A look at the sector-specific trends shows that manufacturing expansion in gross value added (GVA) terms has slackened to a near stall at 1.2%. This, from 5.3% in Q4 of the last fiscal and 10.7% a year earlier, is a far from heartening sign.
  • With capacity utilisation expected to weaken this quarter, according to the RBI, and with surveys suggesting that consumer sentiment has deteriorated steadily in August, the auguries for a demand rebound are far from promising.

To work out both policy and investment measures to boost momentum:

  • One option would be to suspend the fiscal road map for a limited period in order to pump prime the economy through increased capital spending by the government.
  • The risks of fiscal loosening are of course manifold, especially at a juncture when several State governments have either announced or are contemplating large-scale farm loan waivers, which would push up interest rates and crowd out fresh lending. Still, there is a thin sliver of a silver lining in the GDP data.
  • The services sector continues to remain buoyant. Quarterly GVA across this broad swathe that encompasses trade, hotels, transport, communication and broadcasting accelerated to 11.1%, from 6.5% in the fourth quarter, faster than the 8.9% posted in the corresponding period last year.
  • The civil aviation sector saw passenger traffic soaring by 15.6%, and construction activity, a provider of jobs, also ticked up by 2%.
  • The Finance Minister has his task cut out: to find ways to restore momentum before the tailwinds of low inflation and affordable energy prices start reversing direction.

Calibrating a new standard

  • In recent years a person questioning the British government’s stance on international students was given one of two typical responses.
  • One track focused on reminding her that the drop in numbers in some groups (including Indian students) was largely the result of the crackdown on fake colleges that admitted students under the pretense of study merely to enable them to come to Britain.
  • The second argument focussed on highlighting the supposedly sizeable number of overstaying students. “Students, yes; overstayers, no. And the universities must make this happen,” Prime Minister Theresa May insisted two years ago, while still Home Secretary.

Four-month window

  • Students have a maximum of four months after their degree to find a job, which has proved a major disincentive for many.
  • The raison d’etre for this tough stance came crashing down last week, as it emerged that the number of international students overstaying their visa illegally was a fraction of what the government had been suggesting.
  • Home Office data relying on a new system of exit checks at Britain’s borders that began in 2015 found that a mere 4,600 had done so last year, in contrast to the roughly 100,000 suggested by the International Passenger Survey (IPS) conducted at border crossings that the government had been relying on to date.
  • A separate study by the official statistician, the Office for National Statistics (ONS), considered things by nationality too, finding that Indian students were among the nationals most likely to leave before their visa expired, with many others staying on because they had managed to extend their visa for work or other reasons.
  • Even before the latest revelations, the stubbornness appeared irrational to a certain degree at least, given Britain’s post-Brexit ambitions to forge trade deals across the world. India has indicated in the past that taking students off the immigration figures would be seen as a significant concession and gesture of goodwill at a time that Britain has been tightening immigration in other areas.

The Brexit angle

  • Whether the figures will prompt change remains to be seen. The government’s response so far has been to commission a report into the economic and social impact of international students on Britain. This may be all very well, except for the fact that organisations such as Universities UK have already conducted thorough research highlighting the huge economic contribution foreign students make to local economies across the country (£25 billion a year in total), spurring the creation of jobs.
  • However, even beyond the specific case of international students, the data raise questions about the very basis of the direction of British policy. As the outcome of last year’s Brexit referendum made only too clear, concerns about levels of immigration have had a profound impact on the direction of British political life. With some of the immigration data that have fuelled that debate now in question, a period of national introspection is undoubtedly in order.

To clear the path ahead

  • Without a doubt, the August 22 Constitution Bench judgment on instant talaq ( talaq-e-bid’a ) was a historic one.The latest ruling completely and unconditionally invalidates talaq-e-bid’aand renders it bad in law . The Koranic procedure of talaq is the only way by which a Muslim husband will be able to divorce his wife from now on. It is time then to recap the judgment to chart out the next steps.

The majority judgment

  • Justices R.F. Nariman and U.U. Lalit started off by correctly concluding that talaq-e-bid’a cannot be excluded from the definition of “talaq” mentioned in Section 2 of the Muslim Personal Law (Shariat) Application Act, 1937. Additionally, they declared that as the Shariat Act was a law made by the legislature before the Constitution came in force, it would fall within the expression “laws in force” in Article 13(3)(b), and would be hit by Article 13(1) if found to be inconsistent with Part III of the Constitution, to the extent of the inconsistency.
  • But the biggest achievement of Justices Nariman and Lalit is their harmonisation of constitutional equality with Koranic egalitarianism. This was done by endorsing the Koranic law of talaq mentioned in Shamim Ara and declaring talaq-e-bid’a to be “manifestly arbitrary” and violative of Article 14 because it allows a Muslim man to break the marriage “capriciously and whimsically” without attempting to save it through reconciliation. On these grounds, Section 2 of the 1937 Act was struck down as being void to the extent that it recognises and enforces instant talaq.
  • Interestingly, Justice Kurian Joseph, even while fully agreeing with the doctrine of manifest arbitrariness on the pure question of law, disagreed with Justices Nariman and Lalit that the 1937 Act regulates instant talaq and hence can be brought under Article 14. In his view, talaq-e-bid’a can be set aside without testing any part of the 1937 Act against Part III of the Constitution. As the whole purpose of the Shariat Act was to declare Shariah as the “rule of decision”, any practice that goes against the Shariah cannot be legally protected. Talaq-e-bid’a falls outside the Shariah because it goes against its primary source, the Koran. Therefore, what is bad in theology is bad in law as well.
  • Those who criticised the authors of the majority judgment for grounding the crux of their ruling in the Koran ignore the fact that personal laws of all communities in India enjoy constitutional protection. And as these laws are sourced from religious scriptures in most cases the Apex Court cannot but uphold the right of individuals and groups to profess, practise and propagate everything that forms an essential part of their religious scripture, subject to the provisions of Article 25(1). It may be pointed out here that the Koranic procedure of talaq that was implicitly upheld in this judgment does not in any way violate our constitutional values.

The minority opinion

  • In their 272-page ruling former Chief Justice J.S. Khehar and Justice S. Abdul Nazeer, in contradiction to the majority judgment, declared talaq-e-bid’a to be an essential part of the Hanafi faith and gave it protection under Article 25(1). However, this view does not stand up to scrutiny as it is based on the flawed theological premise that a religious custom which has been in vogue for several centuries automatically becomes integral to the denomination that practises it. Such a stance is not consistent with the teachings of the Koran.
  • Had Justices Khehar and Nazeer given weight to the overwhelming evidence in the Koran and authentic hadeeses against instant talaq they could have avoided the problematic invocation of Article 142 to direct the state to enact an “appropriate legislation” on talaq-e-bid’a . One fails to understand how after having declared instant triple divorce a fundamental right under Part III of the Constitution the judges could direct the state to bring a law against it. Article 13(2) clearly states that the “State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” Even Justice Kurian had expressed “serious doubts” if the exercise of a fundamental right can be injuncted under Article 142.

Implications of verdict

  • The biggest goal attainment for Muslim women is the realisation that talaq-e-bid’a in any of his manifestations will not dissolve the marriage. This renders redundant not just halala but the incorporation of a platitudinous advisory against instant talaq in the nikahnama .
  • There is also scope now to amend the 1937 Act, even without designating it as statutory law, to exclude talaq-e-bid’a from the definition of the word “talaq” mentioned in Section 2, and make the Koranic procedure of talaq gender-neutral. Indeed all provisions of the Shariah mentioned in the 1937 Act can be similarly redefined to bring them in conformity with the humanitarian teachings of the Koran and the Prophet.
  • This judgment will also encourage legally and theologically informed Muslim intellectuals to establish mediation centres across India under the Alternative Dispute Resolution (ADR) mechanism to help Muslim couples amicably resolve their marital disputes. To echo the feelings of many, this is not the end but the beginning of the process of reforms in the Muslim personal law.
  • The biggest challenge, however, would be to inform the Muslim masses that the abolition of talaq-e-bid’a is not against the Shariah but has, on the contrary, brought it closer to the original principles of Islam.