The present discourse is distinguished by the infamous politics of ‘Muslim Personal Laws’ and arcane resistance to the possibility of common code by the All India Muslim Personal Law Board (AIMPLB) through an affidavit submitted to the Supreme Court. In the cacophony of the debate, the most strident question has been sidelined which is whether or not Muslim personal law is a codified law that deals with personal matters like marriage, divorce, inheritance, maintenance, adoption and polygamy clause by clause. Given the conspicuous absence of uniform and codified Islamic law, the very question of Muslim Personal law appears a chimera and thus indefensible.
The Personal Law Board
The legitimacy of AIMPLB to speak on behalf of Muslims as a whole is doubtful. Formed as late as 1973, it is astonishingly neither a government body nor a community representative. There are much-nuanced differences in the principle and practices of Shia or four schools of Sunni jurisprudence (Hanafi, Maliki, Shafi and Hanbali) and their sub-sects like Wahabi, Ahl-e-Hadith, Deoband and Barelvi and also the cultural pattern of each of these categories do not match with what is stated as Islamic by AIMPLB. Similarly, these laws are being constantly reworked in familial domain to bypass the so-called Islamic laws, thus giving primacy to the internal dynamics of kinship, caste, class and gender. The heterogeneous character of the Muslim community bars them from having unitary interests when it comes to personal laws. As a result, the submissions of AIMPLB on talaq, polygamy and status of women cannot be treated as authoritative and final. The Supreme Court must make it clear that, this private, unrepresentative body with such an erratic confidence will not dictate to legislature, executive, judiciary and Muslim community as an authority on Muslim law.
All laws, including personal laws or UCC, are political contraptions. Ironically, despite a plethora of personal laws, it is only the Muslim Personal Law which has always been made the subject of political exploitation. In fact, the very submissions are political in character which will ultimately end in fomenting communal passions and benefit right-wing political parties. The whole debate revolves around personal laws versus civil code without bothering about whose rights are represented in either of these two alternatives and who should speak for change on behalf of whom. It is often argued, and rightly so in certain contexts, that male privileges are strongly entrenched under the rationale of Islamic sanction which is not self-evident. Nobody raises the question whether Islamic sanctions are Quranic in character or only the interpretative outcome of those humans who command Islamic jurisprudence. It thus raises the possibility of narrow or broad interpretations based on their preferred selection, exclusion and silences.
We must note that most of the Muslim personal laws outlined by different schools of jurisprudence were not Quranic but were developed through human judicial reasoning (Ijtihad). Second, the existing Muslim Personal Law in India is the by-product of colonial master plan of Warren Hastings which promised that with respect to “inheritance, marriage, caste and other religious usages, or institutions, the laws of Koran with respect to Mohametans, and those of the Shaster with respect to the Gentoos, shall be invariably adhered to.” The British replaced the Islamic law pertaining to criminal matters with IPC 1860, CrPC 1899 and the Indian Evidence Act 1872 without significant opposition.
AAA Fyzee, a noted scholar of Islamic jurisprudence, while discoursing on Shari’at Application Act 1937 stated that the so-called Muslim law in India is not a law of divine command but a piece of legislative enactment by the British. He insisted upon reform in the existing Muslim personal laws to remove gender anomalies and argued that Muslim Personal Law cannot be considered Sharia because Islam is not the state religion, judges are not Muslims and there is no caliph to enforce Sharia.
We need to deconstruct the submissions of AIMPLB that triple talaq is legal and Islamic. Is it Quranic, Prophetic, some Caliph’s or the opinion of a certain Islamic jurist? If there is anything clearly stated in Quran, then all other authoritative sources appear meaningless. And Quran clearly states that divorce is a process which is procedurally spread over at least three months. Divorce is not about momentary utterance of the word talaq thrice at one go and without witnesses. Likewise, is the case with polygamy. In the Quran, polygamy is predicated upon the welfare of orphans but consciously removed in Sharia as a necessary condition without prescribing the reason. The most important part is the subjectivity of fair treatment to all wives which is difficult to measure and therefore, having multiple wives was denied impliedly.
Article 246 and entry 5 of the Concurrent List gives power to the Legislatures to pass laws regulating personal law. In addition, Article 25 (2) too empowers State to make laws for social welfare and reform and if the State does that, it would not be proper to challenge that the measure of social welfare and reform impinges upon the religious freedom of any section. Article 13(1) provides that all pre-constitution laws, so far as they are inconsistent with Part III, shall, to the extent of inconsistency, be void.
Whether the expression “all laws in force” or “law”appearing in Article 13(1) include personal laws? If yes, then personal laws would be amenable to writ jurisdiction. It is made copiously clear that these are an inclusive, not an exhaustive definition; therefore, at first blush it appears that “all laws in force,” would include personal laws because they were laws which were in force in the territory of India. The institution of polygamy offends Article 15(1) inasmuch as a Muslim male is permitted to have more than one wife whereas a Muslim woman is restricted to one husband. Similarly, triple talaq goes against the basic tenet of the non-discrimination and human dignity clause.
Finally, there is a need of reforms within personal laws to reconcile with gender justice norms of civil code without disturbing the broader framework of Islam.
Associate Prof, MANUU
Yogesh P Singh
Dy Registrar, Supreme Court