Illusion of legality
In fact, the Muslim Personal Law Board has, in its affidavit in the apex court, taken the position
that MPL is not “law” as defined by the Indian Constitution.
Written by Faizan Mustafa | Updated: September 19, 2016 12:12 am
Just like the American Constitution’s seven articles, Islam believes in minimum interdiction and
leaves maximum scope for human interpretation of laws. (Illustrations: C R Sasikumar)
Advocates of the uniform civil code attach out of place importance to Muslim Personal Law
(MPL) without really appreciating both its lack of “legality” as well as “divinity”. In fact, the
Muslim Personal Law Board has, in its affidavit in the apex court, taken the position that MPL is
not “law” as defined by the Indian Constitution.
The Narendra Modi government has referred the question of the uniform civil code to the Law
Commission of India. Several benches of the Supreme Court are presently examining MPL’s
legality and the government has to state its position. Last year, in the Kerala High Court,
the BJP government gave an affidavit which stated, “it is the consistent policy of Central
government not to interfere in the personal laws of minorities unless necessary initiative for such
changes comes from a sizeable cross sections of such communities.”
The chief justice of India has now hinted at the possibility of referring this contentious matter to
a constitution bench though the apex court had earlier refused to hold MPL as unconstitutional. It
had always maintained that reforms in personal laws are “policy matters” for the legislature to
decide and the court cannot adjudicate on these matters. Even in respect of the Hindu law, the
Supreme Court had held that fundamental rights do not touch upon the personal laws of the
parties and judges should not introduce their own concepts of the law, even though they were
derived from recognised and authoritative sources of Hindu law such as smritis. The Delhi HC,
in fact, observed that “introduction of the Constitution in the home is like introducing a bull in a
china shop”.
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MPL is certainly not “law” as per the definition of “law” in Article 13 of the Indian Constitution.
So, it cannot be challenged on the grounds that it violates the right to equality. Courts have
power of judicial review, only if a “law” is in contravention of fundamental rights. Had personal
law been “law”, untouchability would have become void on its own. Its explicit abolition under
Article 17 indicates that the framers of the Constitution intended to exclude “personal laws” from
the definition of “law”. Similarly, “personal laws” are not included within the expression “laws
in force” under Article 372 as the president can repeal or amend only statutory laws not personal
laws. Even “constitutional amendments” are not “laws” under Article 13 and cannot be
challenged on the grounds that they violate fundamental rights. They can be challenged if they
violate the “basic structure” of the Constitution.
Parts of MPL which have been enacted by Parliament are certainly “laws”. These include the
Muslim Shariat Application Act, 1937, Dissolution of Muslim Marriage Act,1939, Protection of
Muslim Women’s Rights on (Divorce) Act,1986 and Waqf Act, 2013. If any of these laws
contravene fundamental rights, the court would be free to strike them out. Nothing prevents the
government from enacting similar laws to further reform MPL if there is genuine desire is to
bring in reforms and not polarise people before the UP elections.
The Quran has only 83 verses relating to law. Just like the American Constitution’s seven
articles, Islam believes in minimum interdiction and leaves maximum scope for human
interpretation of laws. “Law” has to be extracted from the sources of Islamic legal tradition. Such
extraction is called ijtihad — endeavour or self-exertion. Thus, MPL is largely based on juristic
interpretation than on direct divine commandments. In fact, the sharia is based on divine
instructions called “Wahi” as well as human reason called “aql”. Other than the Quran and
Sunna, all sources of Islamic law are based on human reasoning such as ijma or consensus
amongst learned, qiyas or analogical deductions,istihsan or juristic preference, istisilah or public
interest and ijtihad or juristic reasoning. Thus jurists discover “law” in Islam.
Islamic law is given by the experts. Law-making is indeed a private enterprise in Islam. Jurists
intervene between god and the state. We may or may not agree with them. Sharia bears a
stronger affinity with revelation (divinity) whereas fiqh (MPL) is mainly product of human
reason. MPL or Islamic fiqh is thus a rational endeavour, based primarily on speculative human
reasoning.
MPL has not been passed by any legislature. It is based on the interpretations of various jurists
and since there are disagreement amongst jurists – ikhtilaq — we have various schools. Most
Muslims in India are Sunnis and follow the Hanafi school. Thus MPL is largely based on the
jurisprudence of Abu Hanifa. The most authoritative text of this school is Hedaya, a commentary
written by Burhan al-Din Marghinani who lived in Marghinan in Uzbekistan. Wherever there is a
dispute between two Hanafis (followers of the Hanafi sect), courts have to ajdudicate according
to Hanafi jurisprudence. The privy council in the celebrated case of Aga Mahomed v.Koolsom
Bee(1871) observed that “it would be wrong for the courts to put their own construction on the
Koran in opposition to the express ruling of commentators of such great antiquity and high
authority.”
In Abul Fata Mahomed Ishak case in 1894, the privy council ruled “it would be extremely
dangerous to accept as a general principle that new rules of law are to be introduced because they
seem to lawyers of the present day to follow logically from ancient texts however authoritative,
when the ancient doctors of the law have not themselves drawn those conclusions”. In the
Veerankutty Case (1956), the Madras High Court similarly cautioned that “we have, therefore, to
administer without in any way circumventing or deviating from the original texts, the law as
promulgated by the Islamic lawgivers to suit the present-day conditions; and in doing so, it has to
be remembered that courts are not at liberty to refuse to administer any portion of these tenets
even though in certain respects they may not sound quite modern”. The Supreme Court has to
take these ruling into account while deciding cases on MPL.
How can a court dictate that a citizen in his personal matters follow one school/opinion and not
another? Any Muslim may leave a particular school and start following another school. Will
courts now decide constitutionality of even juristic opinions? If we are convinced that mere
normative changes in law do bring in social reforms, then the legislature is the better forum to
initiate reforms. As far as “triple divorce” is concerned, it has already been held unconstitutional
in number of cases, and therefore, there is no need for yet another Supreme Court verdict on this
issue. Instant divorce without efforts of reconciliation is not valid today. Even the personal law
board’s much talked about affidavit has conceded this point.
The writer is vice-chancellor, NALSAR University of Law, Hyderabad