Wednesday, January 03, 2018

BJP fidgety, belligerent in Rajya Sabha over triple talaq bill, Jailtey fumbles on issues related to rules and to law

The plain fact is that the BJP cannot push The Muslim Women (Protection of Rights on Marriage) Bill, 2017 in Rajya Sabha as it did in the Lok Sabha on December 28, 2017 because it does not have the numbers. The NDA has 83 if one counts in five of the nominated members, and excludes the six independents and the 13 AIADMK members. The UPA has 121 if ones includes the TRS with 3 and YSRCP's 1. As on January 3, 2018, there are 238 members in the Upper House, and both the BJP and the Congress have 57 members each. The ruling party showed its nervousness when Law Minister Ravi Shankar Prasad introduced the Bill and then made the statement amid loud protests from the Opposition benches.

The scene became testy for Deputy Chairman P.J.Kurien when he had to allow Congress's deputy leader of the House Anand Sharma moved an amendment suggesting that the Bill be referred to a House Select Committee and he gave out the names of the members from the different parties, leaving six for the ruling BJP and its NDA partners.

Leader of House and Finance Minister Arun Jaitley fumbled when he tried to show that Sharma's amendment was not valid because a Select Committee is only possible when the Bill originates in the Council of States, that is the Rajya Sabha, and not when it is transmitted. And he impliedly questioned the decision of Chairman and Vice President M.Venkaiah Naidu, who had apparently agreed to the amendment to be moved by Sharma at the Business Advisory Committee (BAC) meeting held on Tuesday evening. Vice-Chairman Kurien had over-ruled Jaitley's objection saying that once the Chairman had allowed an amendment to be moved, there cannot be any objection.

Another weak reason that Jaitley proferred was when he referred to the minority judgments of former Chief Justice J.S.Kehar and Justice Kurien, who had suspended triple talaq for six months and suggested that the legislature should bring the appropriate law and that it is no for the court to decide the issue. Jaitley argued that the six-month period ended on February 22, 2018 and it is incumbent on the legislature to pass the bill expeditiously. He was wrong. But the majority of three judges in the five-judge constitutional bench had held triple talaq to be untenable in law, even going by Islamic jurisprudence. And it is the majority judgment that is considered the law of the land. The minority judgment has no locus standi until the court's verdict is challenged and it is reviewed and the earlier judgment is overturned, where the merits of the minority judgments can be cited and approved. Until then, the minority judgment has not legal validity. It was surprising then that the lawyer in Jaitley had fumbled on the issue.

It is also the case that even after a bill has been passed in the Lok Sabha, the Rajya Sabha can choose to refer it to a Select Committee as it did in the Lok Pal Bill in 2011was stalled and it was referred to a Select Committee in May, 2012.So, Jaitley was wrong saying that the rules do not permit a bill to be referred to the House Select Committee after Lok Sabha had passed it.
The BJP members, including the ministers, were seen shouting down the Opposition when TMC's Derek Obrien and Leader of Opposition Ghulam Nabi Azad of the Congress insisted on division and voting on the issue of amendment introduced by Sharma.The BJP was not in a position to dare the opposition.

The House was adjourned when the BJP members did not concede the Opposition demand for division and voting on Sharma's amendment.

Later at the press briefing, Azad said that the Congress could not ask for a division because it did not have the numbers, which is a weak argument because he had said that the Bill as it stands is unfair, especially to Muslim women. He said there was no provision in the bill for the maintenance of the woman and the family if the man guilty of pronouncing instant talaq is imprisoned and it was non-bailable. The Congress too lacked courage of its conviction because even if it was outnumbered in the Lok Sabha, it should have insisted on voting.
Both Azad and senior party leader Veerappa Moily had pointed out that in the last three-and-a-half years, the Modi government did not allow most of the bills to be sent to the standing committee which was the convention.

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