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Second, barring constitutional amendments under Article 368, Parliament is not competent to enact any law which is inconsistent with the fundamental rights enshrined in Part III of the Constitution. Article 13 (2) states: "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." Endorsing this, Article 123 (3) warns that if an ordinance "makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void."
The ordinance, insofar as it arbitrarily curtails the personal liberty of a citizen without his having committed any offence, violates Part III of the Constitution, specifically Article 21 which states: 'No person shall be deprived of his life or personal liberty except according to procedure established by law.' It also goes against Article 19 which inter alia allows all citizens "to move freely throughout the territory of India” and “practise any profession, or to carry on any occupation, trade or business."
Third, the Supreme Court in several cases, including Maneka Gandhi v. Union of India (1978) and Justice K.S. Puttaswamy v. Union of India (2017), had made it clear that "law" means reasonable law, not any enacted piece. And a procedure established by it has to be fair, just and reasonable to avoid being struck down as unconstitutional. The ordinance fails on all these counts.
If by criminalising the mere pronouncement of the legally impotent formula talaq-talaq-talaq it violates the principle of substantive due process, the ordinance disregards procedural due process by laying down an iniquitous procedure for the "offender's" imprisonment, bail, custody of his children and the amount he has to shell out as subsistence allowance to his wife even while serving a jail sentence. The unfairness, injustice and unreasonableness lie in the fact that the ordinance inflicts this torment on a citizen despite acknowledging the voidness of his pronouncement.