- CASE 1
- DIFFERENCE BETWEEN INSTANTANEOUS TRIPLE TALAQ AND TRIPLE TALAQ
- ( A – 7 )
- ( A – 8 )
THE FUNDAMENTAL RIGHTS – 02
●The concept of ‘Rule of Law’ incorporated in Article 14 is a basic feature of the constitution, hence, cannot be dismantled even by an amendment under Article 368.
●The right under Article 14 Is AQualified Right.
Case 1: ShayaraBano v/s Union of India & Others (Instantaneous Triple Talaq Case)
The Supreme Court, in its landmark judgement, banned the practice of instantaneous triple talaq, a form of dissolution of Muslim marriages. It held that instant triple talaq is unconstitutional as it violates the Right to Equality guaranteed under Article 14.
Note: Only the practice of instantaneous triple talaq has been made illegal. Triple talaq still remains legal and valid.
DIFFERENCE BETWEEN INSTANTANEOUS TRIPLE TALAQ AND TRIPLE TALAQ:
In instantaneous triple talaq, the Muslim man pronounces ‘talaq’ three times upon his wife at one go. Also, instant triple talaq option was available only to Muslim men, not Muslim women.
In triple talaq, the muslim man pronounces ‘talaq’ three times at three different sittings over a period of three months. This practice is still legal and valid.
EXCEPTIONS TO ARTICLE 14
Immunity to the President and the Governors – Article 361
1. The President and the Governor of state are not answerable to any court for exercising and performing their powers and duties.
2. No criminal proceedings shall be instituted or continued against them during their term of office.
3. They cannot be arrested or imprisoned during their term of office.
4. No civil proceedings shall be initiated against them for the act done by them whether before or after entering their office, until the expiration of two months immediately after delivering a notice to them.
Protection of publication of proceedings of Parliament and State Legislatures – Article 361A
1. According to this article, no person can be subjected to civil or criminal proceedings in any court for publishing (newspaper, radio, television) true reports on any proceedings of either houses of the parliament or either houses of the state legislatures.
2. The publishing reports should not be made with hatred in order to avail the protection.
3. This provision does not apply to reporting of secret sittings of the Parliament and the state legislatures.
Parliamentary Privileges – ARTICLE 105 AND ARTICLE 194
1. Article 105 grants the Members of Parliament with the freedom of speech inside the Parliament.
2. The MPs cannot be made liable to any proceedings in any court for anything said or any vote given by them in the Parliament or its committees.
3. Article 194 provides similar immunities to the Members of State Legislatures.
Article 31C states that any law made by the State to implement the Directive Principles of State Policies under articles 39(a) and 39(b) cannot be challenged on the ground that they are violative of Article 14.
Under International law, the foreign diplomats who are on a visit to India or posted here; the Head of foreign States; the UN and its agencies are not answerable to any court in India for their actions.
Prohibition Of Discrimination On Grounds Of Religion, Race, Caste, Sex Or Place Of Birth
Unlike article 14, which gives a general rule of equality, article 15 is more specific in its application with four different clauses.
Clause 1: It says that the state shall that discriminate any citizen based only on his Religion, Race, Sex, Caste, Place Of Birth or any of them.
1. Discriminating the citizens based only on one or more of the above criteria will make a law void. Whereas, discriminations based on one or more of the above criteria along with other criteria will not make a law void. In that case, the law will be valid.
2. The laws that violate clause(1) of the Article 15 are held void based on the result of the law not on the motivation behind drafting such laws.
Clause 2: It says that no citizen, on grounds only of his religion, race, sex, caste, place of birth or any of these shall be subjected to any disability, liability, restriction or condition with regard to
Sub Clause (a): Access to shops, public restaurants, hotels and places of public entertainment
Sub Clause (b): The use of Wells, Tanks, Bathing Ghats, Roads and places of public resort, wholly or partially funded by the State or dedicated to the public use.
|Note: Clause 1 is aimed against the discriminations by the State, whereas Clause 2 is aimed against the discriminations by both the State and the private individuals.|
CLAUSE 3: It says that nothing in the article 15 shall prevent the State from making any special provision for women and children. That is, the State can reserve certain institutions, facilities, services etc for women and this will not amount to discrimination solely based on sex of a citizen.
CLAUSE 4: It says that nothing in the article 15 or Clause(2) of the article 29 shall prevent the State from making special provisions for the advancement of the citizens who belong to Socially and Educationally Backward Classes, Scheduled Castes and Scheduled Tribes.
● According to article 15, the classes of citizens who are socially and educationally backward are called as Backward Classes.
● The classes of citizens should be Socially and Educationally Backward, not either Socially or Educationally Backward.
● Poverty alone cannot be taken as a criteria for assessing backwardness.
● The level of backwardness of Backward Classes should be comparable, though not similar, with that of SCs and STs.
● Caste may be one of the criteria to determine backwardness, it cannot be taken as the sole criteria, as it will perpetuate caste system.