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
islam, quran, islamic law, triple divorce, muslim talaq, triple talaq, supreme court, muslim personal law board, indian constitution 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”.

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

For all the latest India News, download Indian Express App now

  1. A
    Amar Akbar
    Sep 19, 2016 at 7:51 pm
    Dear Mustafa, what ever your logic says is valid in a country that follows Islamic Sharia as a law in an Islamic country. Hence your Muslim stan is the right country for your logic and so are all other 70 Islamic countries. All the acts etc you quote are pre 1947 when Hindustan was one country. Once divided prehistoric data has no value. And moving forward Hindu majority India decided that with 4% Muslims at that time India will be secular. Today you Muslims are 20% and no more a minority. Also in a secular country all your logic fails and the only law of the land are secular laws not based on religion. So India has a choice. Either continue its secular tradition and don't allow Muslim laws only for Muslim men and rest of the country has to follow the same law or become a Hindu country. For example, only Muslim men and I repeat Muslim men are allowed to have multiple wives NOT Christian Men or Hindu men or Sikh men or Buddhist men they all can only have one wife. And ALL Muslim woman, all Christian woman, all Buddhist woman, all Indian women can only have one husband. So how is this secular? This anamoly by Congie government for Muslim men votes need to be removed from our secular fabric. We also need to dissolve minority ministry and powers given to waqf boards. We have to remove aid given to religion based schools like missionary school and madrasa. And off course if this means you cannot have few laws based for Hindus yes let's do it in lity. Muslims have a choice today. Go with with secular India and stop demanding sharia based laws or move to your own chosen PUREland stan to follow your sharia laws.
    Reply
    1. D
      Dave
      Sep 19, 2016 at 10:21 am
      he is talking nonsense.. then every religion will say the same. he is a fundamentalist and should be respected but not heard.
      Reply
      1. S
        Sood IML
        Sep 18, 2016 at 7:47 pm
        Just see, is it not sad that even the learned people in Muslim religion is so scared to call for reformation of the age old customs mentioned in MPL and liberty of Muslim women will remain dream till their mind set is changed and they come out of fear of Mullas.
        Reply
        1. A
          Arvind
          Sep 19, 2016 at 7:08 pm
          No religious laws are valid in a secular nation as their is no punishment like the Sharia. There must be a Uniform Civil code.
          Reply
          1. A
            ambrosial crap
            Sep 18, 2016 at 8:40 pm
            why did i read this useless article ??
            Reply
            1. A
              AMIT KUMAWAT
              Sep 19, 2016 at 4:20 pm
              My friend Faizan Mustafa even if you say that the MPL is not a law then also "State" has right to intervene into MPL. Article 25/26 provides that "State" can intervene into the religious practices for social reform and Judiciary is included into the State. lt;br/gt;You just argued about Triple talak system. What about the property rights of Muslim women? What about the system of Halala where Muslim women's right to dignity is blatantly violated? What about the Gender equality? lt;br/gt;Sir, you belong to the cl of Sir say Ahamad Khan, talk like him. Person like you should come forward to fight for the Right of women but you are taking side of the the regressive practices which have no place into the modern society. lt;br/gt;Uniform Civil code will not be just for the Muslim community, it will also include Christianity, Hinduism, Buddhism, Jainism and all other religion.
              Reply
              1. A
                Amnah Khalid
                Sep 23, 2016 at 1:21 am
                How can he speak for Muslim women when he himself gave triple divorce!!! These are the beneficiaries of such laws. Does not recognize any settlement or maintenance for wife or children, practice what's preached instead of acting academia to administrator now a columnist.
                Reply
                1. V
                  vijay
                  Sep 19, 2016 at 4:43 am
                  Really? Sir you remind me of the famous Iraq dictator who promised to unleash the mother of all wars on the Americans and ran away in few days and hid in a . Your implied claim that Islamic personal law is outside the purview of the Indian consution have a similar ring to it. please be careful, it may comeback and bite you on your backside.lt;br/gt;I am not sure that your article is an indictment on the inadequacy of the Indian laws or a boast about the inviolability of Muslim of your understanding of muslim personal laws by our legal system. Sir, all your semantics will amounts to nothing if our lawmakers decides to cut you to size and bring you under the umbrella of IPC. Why they are not doing it may be mainly by political expediency rather than they appreciate the perfection and equitability of your laws. . So please don't crow too much,if you do , may be a new bill will be introduced in the parliament by our law makers to bring you in line faster than you could say Islam malikum. Save yourself more grief, please shut up.
                  Reply
                  1. A
                    Ashutosh
                    Sep 19, 2016 at 3:08 pm
                    How can a court dictate that a citizen in his personal matters follow one school/opinion and not another? But the Holy book dictates - where the followers blindly follow the book and only the book. And what does the book advice to treat the non believers / Kafirs ? That reminds me of a saying that If your religion teaches or leads to hatred against anyone then you need to change your religion. May the Lord grant sadbhuddi to all. PEACE
                    Reply
                    1. S
                      sanjay
                      Sep 19, 2016 at 2:06 pm
                      ## JOB. JOB. JOB. ##lt;br/gt;lt;br/gt;Earn daily 1500 - 2000 Rs lt;br/gt;just spent 2-3 hours by your smartphone lt;br/gt;lt;br/gt;##Withdrawal option##lt;br/gt;Bank withdrawllt;br/gt;lt;br/gt;## HOW CAN START lt;br/gt;lt;br/gt;Go to playstore search lt;br/gt;( c,h,a,m,p,c,a,s,h ) install , signup lt;br/gt;Sponsor I'd. 562529 lt;br/gt;lt;br/gt;## Important news ##lt;br/gt;lt;br/gt;Sponsor I'd. 562529lt;br/gt;Complete challengelt;br/gt;lt;br/gt;lt;br/gt;lt;br/gt;.lt;br/gt;lt;br/gt;..sgst
                      Reply
                      1. D
                        debabrata
                        Sep 19, 2016 at 1:25 am
                        And Indian muslims should stop believing that they are some separate eny in themselves....they must understand that they are an integral part of the Indian society first and must adhere to the values enshined in our consution.
                        Reply
                        1. D
                          debabrata
                          Sep 19, 2016 at 1:21 am
                          Every law is codification of underlying values that the society or the section of the society attaches importance. It is high time in this age of progress of science we relegate relegiosity to the realms of interaction between man and god, and recast rules of interaction between humans based on 21 century values.
                          Reply
                          1. A
                            A villager
                            Sep 19, 2016 at 7:05 am
                            If this is the mindset of educated muslim, why to blame terror outfits.
                            Reply
                            1. S
                              sham
                              Sep 19, 2016 at 7:58 am
                              HINDU PERSONAL LAWS ALSO WERE NOT laws as defined by the copied British indian consution ??lt;br/gt;lt;br/gt;STILL Nehroo went ahead and changed Hindu marriage laws in 1955 .lt;br/gt;consecutive govt. have pla havoc with Hindu personal laws since 1955 , causing immorality , promiscuity , Crime , litigation , family feuds to increase - utimate aim seems to be complete subjugation of all Hindoo castes and complete civil unrest
                              Reply
                              1. S
                                sham
                                Sep 19, 2016 at 7:56 am
                                SC ,NCW when are you going to stop the pourn websites in India which are Breach of privacy , why no case filed in the SC by NCW for this , Pourn watching is breach of privacy and same as illegal break in the house and Tresping which are crime in India and all over the worldlt;br/gt;lt;br/gt;why is pouen websites still allowed by NCW in India , these websites are nothing but grave insult to all the humankind, and promoting crime ,slavery lt;br/gt;lt;br/gt;why doesnt the honarable SC sou moto stop the pouen websites in India ?lt;br/gt;were there poun websites for the last 50 years - did it make any difference , ? didnt people continue to live and prosper in respectable and safe society ?lt;br/gt;lt;br/gt;@Modi Govt. when is your govt going to Stop the pourn websites in India ???lt;br/gt;lt;br/gt;what is the status of the FIR filed on SONNY LONE in lt;br/gt;mumbai for running pourn websitelt;br/gt;lt;br/gt;#pournmuktbharatlt;br/gt;#sonnylone_mukt_bharat
                                Reply
                                1. S
                                  sham
                                  Sep 19, 2016 at 7:57 am
                                  SC ,NCWwwwwwwwwwwwwwww -------------------- when are you going to stop the pourn websites in India which are Breach of privacy , why no case filed in the SC by NCW for this , Pourn watching is breach of privacy and same as illegal break in the house and Tresping which are crime in India and all over the worldlt;br/gt;lt;br/gt;why is pouen websites still allowed by NCW in India , these websites are nothing but grave insult to all the humankind, and promoting crime ,slavery lt;br/gt;lt;br/gt;why doesnt the honarable SC sou moto stop the pouen websites in India ?lt;br/gt;were there poun websites for the last 50 years - did it make any difference , ? didnt people continue to live and prosper in respectable and safe society ?lt;br/gt;lt;br/gt;@Modi Govt. when is your govt going to Stop the pourn websites in India ???lt;br/gt;lt;br/gt;what is the status of the FIR filed on SONNY LONE in lt;br/gt;mumbai for running pourn websitelt;br/gt;lt;br/gt;#pournmuktbharatlt;br/gt;#sonnylone_mukt_bharat
                                  Reply
                                  1. S
                                    sham
                                    Sep 19, 2016 at 7:52 am
                                    HINDU PERSONAL LAWS ALSO WERE NOT laws as defined by the copied British indian consution lt;br/gt;lt;br/gt;STILL Nehroo went ahead and changed Hindu marriage laws in 1955 .lt;br/gt;consecutive govt. have pla havoc with Hindu personal laws since 1955 , causing immorality , promiscuity , Crime , litigation , family feuds to increase - utimate aim seems to be complete subjugation of all Hindoo castes and complete civil unrest
                                    Reply
                                    1. S
                                      sham
                                      Sep 19, 2016 at 7:55 am
                                      NCW when are you going to stop the pourn websites in India is Breach of privacy , why no case filed in the SC by NCW for this , Pourn watching is breach of privacy and same as illegal break in the house and Tresping which are crime in India and all over the worldlt;br/gt;lt;br/gt;why is pouen websites still allowed by NCW in India , these websites are nothing but grave insult to all the humankind, and promoting crime ,slavery lt;br/gt;lt;br/gt;why doesnt the honarable SC sou moto stop the pouen websites in India ?lt;br/gt;were there poun websites for the last 50 years - did it make any difference , ? didnt people continue to live and prosper in respectable and safe society ?lt;br/gt;lt;br/gt;@Modi Govt. when is your govt going to Stop the pourn websites in India ???lt;br/gt;lt;br/gt;what is the status of the FIR filed on SONNY LONE in lt;br/gt;mumbai for running pourn websitelt;br/gt;lt;br/gt;#pournmuktbharatlt;br/gt;#sonnylone_mukt_bharat
                                      Reply
                                      1. G
                                        gagan sarkar
                                        Sep 19, 2016 at 5:38 pm
                                        Muslims wish to live in the 5th century. Let them. They want four wives sanctioned by Quran , but when they steal or rape, they do not want the punishment from Quran. Then they want secular law.
                                        Reply
                                        1. G
                                          gagan sarkar
                                          Sep 19, 2016 at 5:40 pm
                                          No point. When it comes down to religion, all Muslims are the same. The author wants to have his rights preserved for four wives, who knows when he will need them.
                                          Reply
                                          1. T
                                            T P
                                            Sep 19, 2016 at 2:46 am
                                            No different laws should prevail in this country. It is high time one law to be made effective.
                                            Reply
                                            1. Load More Comments