By Tahir Mahmood
September 2, 2016
“The Supreme Court cannot test the validity
of Muslim law on the touchstone of fundamental rights guaranteed by the
Constitution since it is not a State-made law.” This is what former Chief
Justice Aziz Ahmadi’s lawyer-son Huzefa Ahmadi has reportedly told the court
the other day. The constitutional tenability of his contention needs to be
examined in its proper perspective.
October 2015 a Supreme Court Bench was hearing arguments in the case of Prakash
v Phulwati in which gender discrimination under the Hindu Succession Act 1956
had been challenged for its constitutional validity. As the lawyer opposing the
challenge argued that similar discriminations under Muslim law had been allowed
by the courts to stay, the Bench directed that a PIL be registered suo motu for
the consideration of that matter by an appropriate bench to be constituted by
the Chief Justice.
bid to pre-empt any further proceeding in the matter, the Maharashtra unit of
the Jamiat-ul-Ulama has now filed a petition in the court arguing that
non-statutory Muslim law is outside the ambit of fundamental rights. Huzefa has
made the contention referred to above as the petitioner’s lawyer.
Part III of the Constitution guaranteeing fundamental rights Article 13 says
that any past or future law made by the State, as also any custom and usage,
going against its provisions would be void. As it does not specifically mention
personal laws, there has been a controversy whether this prefatory declaration
in Part III covers also the personal laws [which are claimed to be something
different from custom and usage].
All religious communities in India are
governed by their respective personal laws which, with the sole exception of
Muslim law, are now found in legislative enactments. While these codified personal laws can be
seen as State-made laws, for the uncodified Muslim law it is claimed by the
community leaders that not being a “State-made law” it is beyond the scope of
The contention is clearly erroneous. The
uncodified Muslim law is in force in India not as part of Muslim religion [as
Muslim religious leaders presume] but because of its recognition by state
legislation, mainly the Muslim Personal Law (Shariat) Application Act 1937.
Particular chapters of Muslim law are protected by specific provisions of
several other statutes – law of gifts by the Transfer of Property Act 1882, of
wills by the Indian Succession Act 1925 of dower by the Dowry Prohibition Act
1961, and so on.
Jurisprudentially, no difference can be
made between a personal law incorporated in some legislative enactments and
another applied by the courts under the authority conferred by some other
Even if it is presumed that personal laws
are covered by the fundamental right to religious freedom under Article 25 of
the Constitution, that Article itself emphatically says that this right will
not prevent the State from introducing social reforms. In any case the
Constitution does not exempt any personal law from the legislative powers of
the State – on the contrary it specifically puts all personal law matters,
without exempting any community, within the competence of Parliament and state
legislatures [Schedule VII, List III, entry 5].
Further, all personal laws are administered in the country by State
courts and nothing in the Constitution exempts any of them from the higher
courts’ power of judicial review.
I am not saying that Muslim law should not
be retained in force and have always
loudly said that the State cannot repeal Muslim law without first repealing the
four Hindu law Acts enacted by Parliament in 1955-56 [ignoring the civil laws
of marriage and succession which were already available as a secular
option]. My stand that if the personal
law system is to be abandoned in favour of a common law the lead must come from
the majority community was cited in the Shah Bano case (1985) with a rider
“lead or no lead the State must act.”
Disagreeing with it, I maintain my
considered opinion that repealing the traditional Muslim law while retaining
the modern Hindu law – which also, like the former, is replete with religious
and gender discriminations -- will be repugnant to the Constitution.
The Muslim law claimed to be of “divine”
origin is practised in India in an awfully distorted way going in a direction
diametrically opposed to clear teachings of the Holy Quran and the Holy Prophet
who was indeed one of the greatest social reformers in human history. For
sixty-eight years since independence religious leaders have succeeded in
preventing any legislative reform. In the absence of any corrective legislation
the apex court of the country has cautiously tried to retrieve the original
principles of Muslim law and apply them in their true letter and spirit.
Religious leaders always deprecate such rulings too, sometimes in words
bordering on contempt of court.
Those who claim immunity for Muslim
personal law from the jurisdiction of the country’s apex court must read the
writing on the wall and let it remain in force as a matter of state policy,
without questioning its judicial interpretations. Invoking the Constitution for
its protection is an utterly unwise move which may prove fatal for its
continuation in force.
Tahir Mahmood is Professor of Eminence & Honorary Chairman, Institute
of Advanced Legal Studies, Amity University, former Chairman, National
Minorities Commission, former Member, National Human Rights Commission and the
Law Commission of India