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11 May 2017 Question Bank

 

11th MAY 2017

QUESTION BANK

(2 Questions)

 

Answer questions in NOT MORE than 200 words each. Content of the answer is more important than its length.

Links are provided for reference. You can also use the Internet fruitfully to further enhance and strengthen your answers.

 

GS II: POLITY  JUDICIARY

1.     The "triple talaq" case rests on the question whether personal law can be subject to the Constitution at all. Elaborate.

http://www.thehindu.com/opinion/lead/triple-talaq-and-the-constitution/article18420742.ece

  • The Supreme Court begins hearing arguments inShayara Bano v. Union of India, which has popularly come to be known as the "triple talaq case".
  • This case, in which the constitutional validity of certain practices of Muslim personal law such as triple talaq, polygamy, and nikah halala has been challenged, has created political controversy across the spectrum.
  • The court will have to decide first whether to adjudicate the case in a narrow manner, which stops at assessing the relationship between triple talaq and Muslim personal law, of whether to undertake a broader approach, and ask whether personal law can be subject to the Constitution at all.

The narrow view

  • Proponents of the first view - which include some of the interveners before the court - invite the judges to hold that triple talaq is invalid because it has no sanction in Muslim personal law.
  • In response to the AIMPLB's claim that the state has no right to interfere in the personal, religious domain, they respond that the religious domain, properly understood, does not, and has never, allowed for triple talaq.
  • They draw a distinction betweeninstantaneoustalaq, or talaq-i-bidat (where divorce is complete when "talaq" is uttered three times in succession) with talaq ahasan, which requires a 90-day period of abstinence after the pronouncement, and talaq hasan, which requires a one-month-long abstinence gap between utterances. The latter two are part of Islamic personal law, but the first one is not.
  • In fact, the Supreme Court itself, in a number of cases, has either doubted the validity of instantaneous triple talaq, or gone so far as to say that it is not a part of Muslim personal law.

The broad view

  • Far from entering the thicket of personal laws, the court should simply ask whether a challenged practice of personal law violates anyone's fundamental rights.
  • In order to subject triple talaq - as a claimed aspect of Muslim personal law - to constitutional norms, the court must first overrule a 1951 judgment of the Bombay High Court (subsequently affirmed by the Supreme Court in another case) calledState of Bombay v. Narasu Appa Mali. In that case, Justices Chagla and Gajendragadkar held that uncodified personal laws may not be scrutinised for fundamental rights violations. They did so on the technical reasoning that Article 13 of the Constitution subjected only "laws" and "laws in force" to the scrutiny of fundamental rights, and that "personal laws" are neither "laws" for this purpose, nor "laws in force".
  • Beneath this technical reasoning, however, was a deeper assumption: a distinction between law, as created by the state or its agencies through acts of legislation on the one hand, and "personal law", which had its source in the scriptures, and in non-state bodies for interpretation and enforcement, on the other.

The choice

  • There is no doubt that triple talaq violates women's rights to equality and freedom, including freedom within the marriage, and should be invalidated by the Supreme Court.
  • The larger question, however, is whether the court will stick to its old, narrow, colonial-influenced jurisprudence, and strike down triple talaq while nonetheless upholding a body of law that answers not the Constitution, but to dominant and powerful voices within separate communities; or will it, in 2017, change course, and hold that no body of law (or rather, no body of prescriptions that carries all the badges and incidents of law) can claim a higher source of authority than the Constitution of India?

 

GS II: BILATERAL INDIA-CHINA

2.     China's Belt and Road Initiative reflects global trends and a new paradigm which India can support and shape. Comment.

http://www.thehindu.com/opinion/op-ed/navigating-the-new-silk-road/article18420757.ece

  • Will Prime Minister Narendra Modi surprise everyone and participate in China's ‘Belt and Road Forum for International Cooperation' which begins on May 14?

Four point solution proposed by China

  • China has suggested

1.      starting negotiations on a ‘China India Treaty of Good Neighbours and Friendly Cooperation',

2.      restarting negotiations on the China-India Free Trade Agreement,

3.      striving for an early harvest on the border issue. (To repeat Nehru's outright rejection in 1960 of Zhou Enlai's proposal to settle the border dispute would be a historic mistake.)

4.      actively exploring the feasibility of aligning China's ‘One Belt One Road Initiative' (OBOR) and India's ‘Act East Policy'.

With the long term in mind

  • India's response should be based on its long-term interest and not short-term concerns. First, treat the Belt and Road Initiative (BRI) - which already has contracts of over $1 trillion covering over 60 countries - as enlarging areas of cooperation; and push for India as the southern node and a ‘Digital Asia'.
  • India cannot be a $10 trillion economy by 2032 without integrating itself with the growing Asian market and its supply, manufacturing and market networks.
  • As a continental power, China is knitting together the Asian market not only with roads, rail, ports and fibre optics but also through currency exchange, standards, shifting of industry and common approaches to intellectual property rights.
  • As the world economy is expected to triple by 2050, Asia will again have half of global wealth.
  • Coordination between the major powers is emerging as the best way of global governance in a multi-polar world. Despite their territorial dispute, strategic differences and military deployment in the South China Sea, China and Japan have just agreed to strengthen financial cooperation.
  • The BRI seeks "complementarities between a countries' own development strategy and that of others", though its goals have yet to be formalised, and India would lend a powerful voice to a strategy and structure that ensures common goals will not be neglected.
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