By A G Noorani
December 15, 2016
There is absolutely no case for enacting a uniform civil code. But there is an unanswerable case for abolition of the un-Islamic triple Talaq. Prime Minister Narendra Modi’s speech, at Mahoba in UP on October 24, professing profuse and unprecedented concern for “my Muslim sisters”, impressed none; UP goes to polls early in 2017.
For over half a century, the BJP, and the Jan Sangh before it, made the code a vital part of their election manifesto. In 1989, it was one of the three conditions that qualified its support to the National Front government. It has no issue on Article 371A on Nagaland which bars legislation by Parliament on “Naga Customary law and procedure” and “administration of civil and criminal justice” involving that law in Mizoram enjoys a similar “special status”.
Before Partition, Muslims were offered solemn pledges of respect for their personal law; by Gandhi on October 28, 1931, the Congress in October 1937 and by Nehru on April 6, 1937. Gandhi offered “protection by specific provisions” in the Constitution. Instead, Article 44 of the Constitution was enacted. “The state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”
B. R. Ambedkar told the Constituent Assembly that this did not mandate legislation.
The BJP’s partner, the Shiv Sena, was candid. Its supremo Uddhav Thackeray demanded on October 22, “They (the BJP) should first announce that this country is a Hindu Rashtra and impose the uniform civil code”. This is the nub of the matter: Obliterate Muslim identity.
Hence, the Muslims’ opposition. It is the lust for uniformity that alienates people. A small UK has two systems of criminal law. Scottish law recognises the plea of “not proven”, English law does not. There is no national bar; England has barristers, Scotland has advocates.
“National integration” is a red herring. Muslims are well integrated in Sri Lanka where they have their own personal law which a Supreme Court judge has praised. Quebec has its own legal system. Singapore and Israel accept Muslim personal law. Aharon Layish wrote a paper in July 1973 on “The Sharia in Israel”. The modern trend is for acceptance of diversity.
Article 27 of the International Covenant on Civil and Political Rights, to which India is party, concerns minority rights. Francisco Caportori’s report on its implementation (1977) says: “In Africa and Asia, particularly in the countries in which customary law is an integral part of the general legal system, various ethnic groups are still governed in matters of personal status and other fields of private law by their own rules. There cannot be any doubt that an effective and full protection of the culture of minorities would require the preservation of their customs and legal traditions, which form an integral part of their way of life.”
Sir Norman Anderson, an authority on Hindu and Muslim law, wrote, “It is the family law that has always represented the very heart of the Shariah for it is the part of the law that is regarded by Muslims as entering into the very warp and woof of their religion.” It has been “basic to Muslim society down the centuries”. A former vice-president of India and Law Minister, G.S. Pathak told the Lok Sabha, on May 17, 1966, that he appreciated that “personal laws are mixed up with religion” and that “we cannot coerce people to accept our views about their religion and customs”.
However, the Muslim law in force in India is Anglo-Muhammadan law based on English commentaries and translations. It is not based on the Quran, the Shariah. English judges on the Privy Council, ignorant of the Quran, held in 1897 that the courts in India should not “put their own construction on the Quran in opposition to the express ruling of commentators”.
In 1971, Justice V. R. Krishna Iyer ruled in the Kerala High Court that “the view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions… Indeed, a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce… It is a popular fallacy that a Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the marriage… Commentators on the Quran have rightly observed — and this tallies with the law now administered in some Muslim countries like Iraq — that the husband must satisfy the court about the reasons for divorce. However, Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quran laid down and the same misconception vitiates the law dealing with the wife’s right to divorce. After quoting from the Quran and the Prophet, Galwash concludes that “divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting reconciliation have failed, the parties may proceed to a dissolution of the marriage by ‘Talaq’ or by ‘Khula’.”
Justice Baharal Islam of the Gauhati High Court took the same view in 1978: “In my view the correct law of Talaq as ordained by the Holy Quran is that Talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters — one from the wife’s family, the other from the husband’s. If the attempts fail, Talaq may be effected.” Both judges were elevated to the Supreme Court.
In Shamim Ara’s case (2002), the Supreme Court approved of the views of Justices Krishna Iyer and Baharal Islam. In Pakistan, the courts discarded the Privy Council’s view and began creatively to interpret the Quran on the triple Talaq. Indian jurists and activists must not lay behind. They must formulate at least three texts as alternatives to that Talaq and submit them to the Supreme Court.
They can adopt the rules in Pakistan’s Family Laws Ordinance 1961. It provides for an Arbitration Council to bring about a reconciliation and a 90-day period for retraction. Talaq must be pronounced by a notice in writing and communicated to the Council’s chairman. The wife can stipulate a right to divorce in the Nikahnama (Talaq Tafuriz). She had additionally the right to divorce (Khula). She can even add stipulations in the Nikahnama on visits to her family, pocket money and a bar on a second wife.