The Supreme Court has spoken again: The “reform” of Islamic personal law (Full article)

The Hon’ble Supreme Court has once again spoken about Muslim Personal Law, in an unconnected matter, once again bringing into focus Islamic law, “reform” of which is a pet theme of many..This “reform” of Islamic law is expounded by proponents of a common civil code but with little or no understanding of the jurisprudential issues involved, Flawed notions are bandied about regarding Islamic law including claims that it “permits” child marriage. These claims ignore the fact that in the Islamic system of jurisprudence the concept of majority is linked not with an arbitrary number as age, but (in consonance with nature) with puberty, and two, that capacity for marriage does not mean a requirement of marriage..When the Supreme Court says there is no safeguard for women against arbitrary divorce it fails to recall its own judgements that mandate a settlement mechanism from both sides before a valid divorce can take effect. Why this haste exhibited in such matters? Why do we not see this judicial anguish expressed with the same sense of urgency in matters of mob violence that devastate not just the rights but the very lives of thousands of Muslims at each incident? Casting aspersions on the Constitution bench that delivered the earlier judgements is hardly proper..Let me ask a question – which of these two situations is destructive of a woman’s rights and status? One where she is married to a man as his wife, assuming he already has a spouse, with the relationship affording to her the status of a wife with its attendant legitimacy, legitimacy of the children, right to maintenance for her as well as the children, and acceptance of the group as a family by society.Two, where she is relegated to the position of a mistress or “keep” or a discard-at-will “partner”, with society labelling her immoral, and denied the rights arising out of a marital status..If one answers with sincerity and not to score brownie points, the answer is clear..Saying palpable injustice should not be suffered, presupposes an objective definition of injustice. Injustice to me, however, is not when you perceive it to be so..How do judges refer to Islamic practices as contrary to the dignity of women? Marrying two women is immoral and destructive of women’s dignity, whereas marrying one woman and using several other women as mistresses is moral and upholds women’s dignity ?! Perceptions can vary, obviously, and there are no absolutes..Now Article 44 of the Constitution came up for comment in Ms. Jordan Diengdeh vs S. S. Chopra (AIR 1985 SC 935) with the court suggesting a complete reform of law of marriage (in that case involving a Christian and a Sikh). This decision quoted the judgement in Mohammed Ahmed Khan vs Shah Bano (AIR 1985 SC 94) in which the necessity of uniform civil code in the country was suggested by the Court which quoted art. 44 of the Constitution said there was “no evidence of any official activity for framing a common civil code for the country”. Advisedly restricting the scope for mischief based on that observation, the court proceeded to say that it was for the Muslim community to take the lead in the matter of personal law reform..While the case at hand was between Muslims, and the observation was in that case, not a single instance has been forthcoming of any community as a body coming forward for a change from their personal law to a common codified law. At best some reform-desiring members of a group have tried to create awareness of anomalous results in certain areas. These attempts have been resisted by groups which hold that their Divinely revealed law cannot suffer non-Divine modification, and members of their community must seek solutions emerging from within the concerned group. Obviously such solutions are more acceptable, as fresh interpretations rather than any reform substitution or amendment..The Supreme Court has said that a common civil code will “help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies”. Was national integration somehow obstructed due to diversity of laws ? People don’t have loyalty to laws, but to the nation..Following diverse personal laws, operating in a non-secular, personal field, internal to a group, has little to do with loyalty to country. It is not as if a foreign law was being followed, what was being followed was a local law that had evolved locally over the centuries and was not even as originally created In fact, what prevails now is a hybrid version peculiar to the sub-continent..The observation “laws which have conflicting ideologies” implies some “conflict” in the laws’ ideologies. Conflict would arise only if two sets of laws were to be applied to one set of people in a given situation, whereas in personal law matters a particular personal law would find application within a particular group, and not different laws. .Where would the conflict be ? Certainly not in the laws, for different groups would follow differing laws, governing personal relations between members of that group alone, and not relations between citizens with different “ideologies”..Where we come into transaction situations with others of other groups, codified national laws would govern, as they do now..Stating further that the State had the duty to secure a common civil code for the country, the Court proceeded also to say that (the State) “unquestionably has the legislative competence to do so”. That conclusion there is at least some reason to question whether the words of Article 44 are not the imperative language of other Articles as seen below..Article 26 of the Constitution says subject to public order, morality and health, every religious denomination or any section thereof shall have the right-.(a) to establish and maintain institutions for religious and charitable purposes;.(b) to manage its own affairs in matters of religion; … etc..Now, a religious institution is not necessarily only a mosque where worship is performed. Any institution that caters to any aspect of religious practice would qualify as a religious institution. Wakf, Qazi, Bait-ul-Maal, setting of calendars on moon sightings signalling the start of months, institutions for the sacrifice at Eed-ul-Azha (Bakrid as it is loosely referred to) – what part of this is divorced from religion?.A Constitutionally guaranteed freedom to establish and manage institutions for religious purposes, and for a community to manage its own affairs in matters of religion, cannot be eroded or diluted by lopsided (mis)interpretation of another provision as to render the guarantee itself nugatory or illusory..The definitions of words and/or phrases like “religion” and “religious purposes” would be very significant, and affairs in matters of religion do not mean just worship !.The practice of Islam for instance would encompass various matters of this religion. So far, no one has suggested that public order, morality or health are affected by my marriage to more than one woman or my divorce by unilateral action consistent with my personal law, or my distribution of my inherited property in a certain manner, or the way my family members dress, the way we worship, the way we celebrate our festivals, etc., which are for me all religious matters..Not one of these involves public morality or order. How then can one Constitutional provision be so interpreted without reason so as to render otiose the guarantee enshrined in the Constitution ?.Article 37 says the provisions contained in this Part of the Constitution shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws..Therefore if a citizen were to invoke the Court’s power seeking direction to the State to implement a Directive Principle of State policy, the application would stand rejected. The words are not “enforceable at the instance of any citizen”, and therefore under no circumstances would they be enforceable by Courts..Not being enforceable directly at all, indirect enforcement by suo motu directives of Courts would also stand excluded. Courts ought not to erode their authority; would the Court suggest the State do something, which suggestion is far short of an order, which the Court itself stands precluded from, and therefore has no power to enforce?.Crudely stated, if the Court directs the State to enact a uniform civil code and the State refuses, can the Court do anything about it ?.Note the Article states “shall not be enforceable the Court” but does not state that action in pursuance of a directive principle “shall not be called in question before any Court”. Therefore, while you cannot seek direction to enforce, I can sustain a challenge to the exercise of such power by the State. Grey waters, with uncertainties lurking..Scrutiny of shifts in phraseology is a tool that aids understanding of intent. Article 38 (1) says the State shall strive to promote the welfare of the people while sub-clause (2) adds emphasis by saying the State shall, in particular, strive to minimise the inequalities in income..The mandatory “shall strive” in sub-clause (1) changes to “shall in particular, strive” in sub-clause (2). Such emphasis is provided by the framers of the Constitution where they desired to stress a certain point. In Article 39, we learn the State shall, in particular, direct its policy towards securing certain goals (note the continued use of the “in particular”), with this article also seeking parity between citizens..In Article 39A, dealing with legal aid, the expression “shall secure” is once again present..However, when we come to Article 44, we learn that the State shall endeavour to secure for citizens a uniform civil code throughout the territory of India. Is it anybody’s case that this palpable, perceptible, discernible shift from the mandatory or directory shall strive, further emphasised in shall in particular strive, to the recommendatory words “shall endeavour to secure…” is just an accident?.Where even the emphasized mandatory directive provision is not enforceable by any Court, will this suggestive recommendation expression be given so much weight that Courts start requiring the State to do something about a common civil code ?.The Supreme Court has observed that even in a statute, “legislative futility is to be ruled out so far as interpretative possibility permits”. And here we have the Constitution..“Endeavour to secure” are words which do not mean declare, provide, lay down, promulgate, enact or legislate. The intent seems to be that something must be secured in the sense of being obtained. That securing is the obtaining of agreement if there can be persuasion of the type that finds acceptance among classes, religious, social, ethnic, etc., of citizens. The state must make an effort, endeavour to secure; it cannot impose something..Also, a uniform civil code is the expression used, and not “the same set of laws”; uniformity means consistency, regularity, standardization, homogeny, evenness, equality, sameness : sameness is the quality of being like the other, not being the other..Foing further, Article 47 says the State should consider the raising of the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption (except for medicinal purposes) of intoxicating drinks and drugs which are injurious to health..The mandatory “shall” and the “in particular” show emphasis. Now, will the common civil code decree, considering the “in particular” emphasis, that consuming intoxicating drinks stands prohibited ? If not we are attempting to interpret the Constitution to suit political compulsions rather than first correctly interpreting it and then allowing national life to be guided by those principles..And where such attempts are insidious, or emanate from judicial desks, the future is fraught with danger. There is no need for pressure on the Muslims; if pressure is required, it is on the honesty and integrity of political thought and policy, and judicial integrity and even-handedness..The burqa is subject of a lot of criticism; but the same voices that condemn the burqa also condemn Western dresses. Those criticising the burqa must remember that their voices are raised against a constitutionally guaranteed right to practice one’s religion, and someone of another religion is hardly going to be the one telling me how to practise mine. I will remind you that what is guaranteed is the practice of religion, not just of worship which forms only a part of religion..Muslim women wearing the burqa have become a favourite target for “oppression” comments, while Christian nuns wearing the dress of their religious calling is perfectly acceptable ! If I consider celibacy of Brahmacharis, Sanyasins, nuns, priests etc. oppressive, that would be just my private view. An answer from non-Muslims when religious cloaks of nuns are cited is, “Well, they are women of God”.Surely then, a similar Godly dress worn by Muslim women should not attract hostile comment. Is it the burqa, or is it the fact that the woman inside is a Muslim that is the source of comment and the perceived oppression? How do Hindu women cover their heads before elders and in temples, Sikh women in a Gurdwara, Rajashtani women in their home State? Populist pretexts today masquerade as reformist zeal..Considering the Constitutional fiat that directive principles shall not be enforced by any Court, the question is can a Court prod the State to do the same thing suo motu, and achieving the same thing indirectly so to speak ?.The Court in 1985 quoted with approval Dr. Tahir Mahmood, “in pursuance of secularism the State must stop administering religion-based personal laws”. The approval of the Supreme Court leads one to conclude that the words are, in a sense, adopted by the Court as its own..Now, “stop administering” is not the same thing as to “do away with” (see Dr. Ambedkar’s speech of 1948 quoted below). One would be excused for wondering whether the State can stop administering religion-based personal laws, and stop there, leaving those desirous of following those laws to devise their own mechanism for the administration thereof, like an arbitral council..There again those of that inclination will face a road-block – arbitration law asserts that in an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute in accordance with the substantive law for the time being in force in India..Then, while Dr. Mahmood on the one hand says “the State must stop administering religion-based personal laws”, on the other he is quoted as saying,.“Instead of wasting their energies… to secure an ‘immunity’ for … personal law from the State’s legislative jurisdiction, the Muslims will do well to begin exploring and demonstrating how the true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the common civil code of India” (emphasis added). .It would be immediately apparent that this is actually an argument for the enriching of the proposed common civil code by (obviously) including in it Islamic laws, “purged of anachronistic interpretations”..Thus the judgement quotes the same voice which simultaneously seeks cessation of administration of religion-based personal laws, and yet argues for the inclusion of those very laws and their engrafting into the common civil code ! One would again be excused for asking whether there is not something mutually incompatible in the two positions. The Courts would be administering the very same laws under a different label..The Court further quoted a report of Pakistan’s Commission on Marriage and Family Laws. In the words of Allama Iqbal,.“The question which is likely to confront Muslim countries in the near future, is whether the law of Islam is capable of evolution – a question which will require great intellectual effort, and is sure to be answered in the affirmative.”.If the law of Islam, or personal law of Muslims, evolves, it will have done that, but that evolution will not make it anything other than what it is – a religion-based personal law. Will Courts then desist from administering the provisions of the common civil code to the extent they are based on religion?.If so, then is the position that law administered by Courts shall be such as was never a part of any religious law? Following Dr. Mahmood’s words quoted approvingly by the Court, the State would have to remove all law found in Hindu scriptures, including Manu’s laws, Vedic laws, remove all Christian laws, Muslim laws, Sikh, Parsi, and what have you. What remains would be a rather uncommon civil code..Now Article 25 says that subject to public order and morality, all persons are equally entitled to the right freely to profess, practise and propagate religion. There is nothing to indicate there can be propagation by mode A and not by mode B, for instance, and therefore any law proscribing conversions would be violative of this provision. The State has effectively applied curbs on freedom of conscience! By curtailing your right to convert, is my right to propagate not violated ?.Article 25 also says nothing in this article shall affect the operation of any existing law or prevent the State from making any law (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. Thus only such activities that are economic, financial, political or secular and associated with religious practice can be regulated or restricted. It is noteworthy that the only conclusion is that there can be some political activity associated with some religious practice. The words associated with and religious practice would assume importance..What is “religious practice” can be a subject of lively debate, and it can certainly be argued that the provision covers matters which do not per se comprise religious practices but are only attendant therewith or associated with such practice, and fall within the defined categories of financial, political, economic, or otherwise secular. However, the potential for mischief is there, since even a fund collection drive could be termed “financial”..Prior to 1955, India was the largest country in the world which permitted its great majority of people, Hindus and Muslims, to practice polygamy (unlimited to Hindus and limited to four wives to Muslims). In some parts of India, such as in Lahaul Valley of Himachal Pradesh and among the Thiyyas of South Malabar, polyandry prevails and was recognised under custom. Chota Todas as a community in Nagaland are still said to have polyandry prevailing..In Goa, Daman and Diu, during the Portuguese rule, a Hindu husband was permitted to take a second wife during the lifetime of the first wife, in some specified places and in some circumstances, with the consent of his first wife. That continues to be the law in those territories..Naturally customary divorces have been recognised. Customary modes of divorce are easy. In some cases marriage can be dissolved by mutual consent, and require very few formalities. In most cases, it is a purely private act of the parties. In some communities, some forum is required such as the gram panchayat or family council. Any problem if it is a local Qazi or the husband himself ?.Such has been the importance of customary divorces in Hindu law that even after the reform and codification of Hindu law of Marriages, the customary divorces continue to be recognised (See sec. 29 (2) of the Hindu Marriage Act, 1955). Some Hindus have a system where a gram panchayat sits and issues a divorce declaration awarding “compensation” to the woman and the divorce is complete. Compare this with the Islamic “and for divorced women, fair provision on a reasonable scale” (quoted also in Shah Bano’s case). Are those Hindus not following law akin to Muslim personal law ?.Now, will all these diverse laws be abrogated? Or will we have a hybrid fabricated by engrafting or transplanting specific provisions of each on to the intended matrix of the total effort? What parts of these customs will be accepted by whom, and subject to what safeguards?.Has any exercise been carried out, or even attempted, to ascertain these basic aspects of what the diversities are? What are the possible variants that might find acceptability of any degree amongst the religious spectrum of groups, denominations, sub-denominations, tribes, castes, etc. ?.Even among the mainstream Hindus we have the two large schools, Dayabhaga and Mitakshara, which differ hugely with respect to the inheritance provisions, the former being more like the Muslims’ law of inheritance in so far as the point at which a person acquires rights in property is concerned..In later judgements the Supreme Court was pleased to voice another view. In Lily Thomas [2000 (6) SCC 224], the Supreme Court pointed out that in Pannalal Bansilal Pitti vs State of A.P. the Court indicated that enactment of a uniform law, through desirable, may be counterproductive. The Court was relying on the affidavits filed by the Government of India in the case of Sarla Mudgal, President, Kalyani vs Union of India, (1995) 3 SCC 635 wherein it was stated that the Government would take steps to make a uniform code only if the communities which desire such a Code approach the Government and take the initiative themselves in the matter..The Court pointed out that the Government had also annexed a copy of the speech of Dr. B. R. Ambedkar in the Constituent assembly on December 2, 1948 Dr Ambedkar stated,.“I should also like to point out that all the State is claiming in this matter is the power to legislate. There is no obligation upon the State to do away with personal laws … Therefore, no one need be apprehensive of the fact that if the State has the power, the State will immediately proceed to execute or enforce that power in a manner that may be found to be objectionable by the Muslims or by the Christians or by any other Community in India.”.Now, if you do not do away with personal laws, then what are they for if not to be applied and implemented ?.The Court reassuringly added that the affidavits and the statement made on behalf of the Union of India should clearly dispel notions harboured by the Jamat-e-Ulema-e-Hind and the Muslim Personal Law Board. The Court added that it had not in Sarla Mudgal’s case issued any direction for the enactment of a common civil code..Then came Ashutosh Gupta 2002 (4) SCC 34 where it was held (in the context of Article 14) that the concept of equality before law does not involve the idea of absolute equality among all, which may be a physical impossibility. All that Art. 14 guarantees is the similarity of treatment and identical treatment..The equal protection of laws does not mean that all laws must be identical. Equality before the law means that among equals the law should be equal and should be equally administered and that likes should be treated alike..In Ms. Aruna Roy & others (2002) 7 SCC 368, the Court said,.“Religion is the foundation for value based survival of human beings in a civilized society. The force and sanction behind civilized society depends upon moral values.”.The importance of religion in regulating human conduct stands recognized. Denuded of its constitutionally guaranteed practices, can religion remain religion ?.In TMA Pai Foundation (2002) 8 SCC 481 it was noted that regarding Article 27 of the International Covenant on Civil and Political Rights, the Human Rights Committee in its general comment adopted on 6-4-1994, stated the article establishes and recognises the right that is conferred on individuals belonging to minority groups and which is distinct from, and additional to, all the other rights which, as individuals in common with everyone else, they are already entitled to enjoy under the covenant..The Court explained that rights conferred on linguistic or religious minorities are not in the nature of privilege or concession, but their entitlement flows from the doctrine of equality which is the real de facto equality. Equality in law precludes discrimination of any kind, whereas equality in fact may involve the necessity of different treatment in order to attain a result that establishes equilibrium and parity..In the 5th Schedule of the Constitution, sub-clause (1) states that,.“Notwithstanding anything in this Constitution the Governor may … direct that any particular Act of Parliament or Legislature of the State shall not apply to a Scheduled Area or any part thereof … or shall apply … subject to such exceptions and modifications as he may specify … and any direction … may be given so as to have retrospective effect and.(2) The Governor may make regulations ….(3) In making any such regulations … the Governor may repeal or amend any Act of Parliament or of the Legislature of the State or any existing law which is for the time being applicable to the area in question..(4) All regulations made under this paragraph shall be submitted forthwith to the President and, until assented to by him, shall have no effect..Thus the Constitution itself asserts unequivocally that there can be areas in the country where even a common civil code would not apply. Diversity of laws, it seems, is very much a part of India and the Constitution !.The press reporting on pronouncements of the Hon’ble Courts will, we hope, doubtless take notice..Shafeeq Rehman Mahajir is an human rights activist, and advocate. You can read his interview with Bar & Bench here.