The legality of the triple-talaq system is now under the scrutiny of the Supreme Court. While political parties are talking in different tones on the subject (thanks to their vote-bank politics), at the people’s level, there seems to be an emerging consensus that this regressive system must not remain a part of the Muslim Personal Law. In fact, there is now a growing realisation that in a democratic and secular India, there must be a uniform civil code as enshrined in the Constitution of India (Article 44) as a “directive”. This “directive” does not come in conflict with Article 25 of the Constitution of India that guarantees the freedom of religion because Clause 2 of this Article separates religion from secular laws that remove some regressive religious practices. It clearly states that freedom of religion shall not limit the state from making any law “providing for social welfare and reform”. And then we have Article 14 of the Constitution, under which every Indian has equal rights; no one under this doctrine of equality can be discriminated in the name of background, caste, and creed.
It is a misconception that uniform civil law will disallow one marrying according to her religion. What it does is that it ensures uniform rights to all in marriage, divorce, property rights, and inheritance in a society that is fundamentally patriarchal. In fact, its intended beneficiaries are women in general. In that sense, the common civil code is gender-sensitive; it has nothing to do with religion. It applies to women under all the regions, whether Hindus or Muslims or Christians.
It is to be noted that apart from the Muslims, all other religions in India have undergone some social reforms or the other in their personal laws and practices. The Christians have had Indian Christian Marriage Act, 1872, the Indian Divorce Act, 1869, and the Indian Succession Act, 1925. In 1983, initiatives were taken by Bishops, clergy, lawyers, and social activists to modernise several sections in these laws that were considered discriminatory. The Parsis have the Parsi Marriage and Divorce Act, 1936.
The Hindu civil laws (that also apply to the Sikhs, Jains, and Buddhists) have been codified many a time by Parliament - the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoption and Maintenance Act, 1956.
In contrast, the Muslim Personal Law has remained unchanged over the centuries. It is derived mainly from the Quran and the Hadith. The Quran is the primary source book of Islamic laws, but it is to be noted that Muslim Personal Law “as it is known and practised today was compiled more than a hundred years after the death of the Prophet.” Be that as it may, the fact remains that the Muslim leaders in the country and the AIMPLB – a private organisation — have resented whenever the Supreme Court makes negative remarks on the “triple talaq” practice and the poor maintenance of divorced Muslim women. They say that “the country’s top court has no jurisdiction to undertake the exercise as the community’s personal law was based on the Quran and not by law enacted by Parliament.”
However, AIMPLB’s logic that Muslim Personal Law is a religious issue and hence beyond the purview of human-made laws is deeply flawed. It is true that except Bangladesh and Indonesia, every Islamic country has a uniform law based on Sharia which applies even to non-Muslims. But in virtually all other countries where Muslims live in significant numbers, it is also true that there is a uniform law — both civil and criminal. If human-made uniform laws can regulate Muslims residing in the United States or France and yet remain proud Muslims, why should AIMPLB fear that Indian Muslims will cease to be Muslims once they come under the uniform civil law? The AIMPLB’s argument is made all the more redundant when the same Indian Muslims are under the purview of the “human-made” criminal law. Suffice it to say, Indian criminal law is not based on Sharia as is the case in many Islamic countries. How come Sharia is sacrosanct for civil laws but not for criminal laws?
Even in India, Goa still practices a common civil code, which has been the law since 1867 when the state was under the Portuguese colonial rule. Admittedly, this code allows some flexibility to certain religious or customary practices that are debatable, but the point is that in principle there is one civil law for all the Indian citizens living in Goa. And the Muslims in the state are quite comfortable with it. In fact, when in 1981 some orthodox Muslims under the banner of Goa Muslim Sharia Organisation, supported by outside Muslim leaders, tried to apply the law of India to Goa (that would have taken the Goan Muslims out from the purview of Goa’s common law), the move was opposed successfully by Goan Muslim youth groups and Goan women’s associations. This being the case, are Muslims of Goa lesser Muslims than their counterparts in Uttar Pradesh?
It is often argued that the Muslim community itself will generate a process of change and reform in the course of time. As an argument, there are merits in it, but if one goes by the reality on the ground, there is not much hope. As we have already seen, there have been simply no reforms in Muslim personal practices over the last 100 years. In fact, if anything, the situation has worsened for gender equity and justice among the Muslims in recent years. Wahabism, with immense Saudi petrodollars at its disposal, has penetrated India viciously. As a result, we see how in states like Jammu and Kashmir, Kerala, and Telangana, the great culture of Sufism (liberal Islam in the subcontinent) has been severely challenged by Wahabi outfits that are segregating boys and girls in the madrassas, insisting only on the teaching of Sharia law in the madrassas, compelling girls to wear “Islamic clothes”, including the hijab, and promoting rapid changes in the eating culture of places like Kashmir.
So what is the way out? In the prevailing political atmosphere of the country, it is simply not possible to legislate for a Uniform Civil Code. Here the judiciary has to step in, keeping in the tradition of “common law legal system” where “law is often developed by judges and courts when making decisions in individual cases that have a precedential effect on future cases”.
Here, “the body of past common law binds judges deciding later cases to ensure consistent treatment and so that consistent principles applied to similar facts yield similar outcomes.” In other words, past judicial cases become the primary source of law, which gives judges an active role in developing rules.
It is to its credit that the Indian judiciary has been relatively consistent in its observations that the Muslim women are being treated unfairly under the prevailing Muslim Personal law (in the last two years, I have come across at least four such observations). Now, it is time for concrete judgment that could become a “common law”.
(Views expressed are strictly personal. The opinions appearing in the article do not reflect the views of Millennium Post and this newspaper does not assume any responsibility or liability for the same.)