By Faizan Mustafa
23 Apr 2016
A person may be a Muslim and yet not pray five times a day; nor fast in the month of Ramadan; nor pay Zakat; nor go for Haj.
A person may be a Muslim and yet not pray five times a day; nor fast in the month of Ramadan; nor pay Zakat; nor go for Haj; may be in love with a Hindu girl and wants to marry her; rarely speak truth and occasionally indulge in drinking; intend to give an equal share in his properties to his son and daughter. He can do all the above things because Muslim Personal Law is not law in the true sense of the term. Indian Supreme Court and some other advocates of the uniform civil code attach out of place importance to the Muslim Personal Law without really appreciating both the lack divinity as well as legality of Muslim Personal Law.
Muslim Personal Law is not ‘Law’ within the definition of ‘Law’ given in Article 13 of Indian constitution. Since it is not ‘Law’ as the per the judgment of most eminent judges like Justice P.B. Gajendragadkar and Justice M.C. Chagla, it cannot be challenged on the ground of being violative of fundamental right to equality. Only a ‘Law’ can be challenged and courts would have power of judicial review if a ‘Law’ is in contravention of fundamental rights. Parts of Muslim Personal Law which have been enacted by the Parliament are certainly ‘Laws’ such as Muslim Shariat Application Act, 1937, Dissolution of Muslim Marriage Act,1939, Protection of Muslim Women’s Rights on (Divorce) Act,1986,Waqf Act,1995 etc. If any of these laws are contrary to fundamental rights, court would be free to strike them out as unconstitutional.
The Muslim Personal Law (Shariat) Application Act,1937 is the law which tells us in respect of which matters personal law shall apply to Muslims. It is a short enactment of six sections which aims at restoring the Muslim law to all Muslims and doing away with customs contrary to the Shariat. It is applicable to every Muslim. But a strange feature of the Act is it does not give any definition of term ‘Muslim’.
Quran which is divine book has only 83 verses relating to law. Thus just like American Constitution’s five articles believes in minimum interdiction and leaves maximum scope for human interpretation in laws. As a divine policy, Quran does not contain ‘Law’ in the strict sense. ‘Law’ is buried as it were within the legally imprecise and sometimes ambiguous sacred texts. ‘Law’ in Islam is to extracted from sources of Islamic Law. This extraction is human activity and is called ‘Ijtihad’ which means ‘endeavour’ or ‘self-exertion’. Thus Muslim Personal Law is largely based on juristic interpretation rather than direct divine commandments. In fact Sharia is based on Divine instructions called Wahi as well as human reason calls Aql. Other than Quran and Sunna all sources of Islamic law are based on human reasoning such as Ijtemaie consensus amongst learned Qiyasie analogical deductions, Istihsanie Juristic preference, Istisilahie Public interest and Ijtihadie juristic reasoning. Thus jurists discover ‘Law’ in Islam. Islam in fact does not give law making power to the state. Islamic law is given by the experts. Law making is indeed a private enterprise in Islam. Jurist intervenes between God and State. We may or may not agree with them. ‘Shariah’ bears a stranger affinity with revelation (divinity whereas Fiqh (Muslim Personal Law) is mainly product of human reason. Muslim Personal Law or Islamic Fiqh is thus a rational endeavour primarily based on speculative reasoning.
Muslim Personal Law has not been passed by any legislature. It is indeed based on the interpretations given by various jurists and due to the disagreement amongst jurists i.e. Ikhtilaq we have various schools. Basically it is a freedom given to every Muslim to follow whichever opinion he/she wants to follow. How can a court of law get a right to say that a citizen in his personal matters follow one opinion and not another. Any Muslim may leave a particular school and start following another school or different interpretation. Is the current debate part of taking away juristic freedom? Do we now want dictate citizens to follow a particular interpretation? Will courts now decide what opinion is right and which opinion is wrong? Do not Muslims even have right to convert to other religions if they do not like Islam or its fundamental principles?
Supreme Court of India itself in its last year’s pronouncement had permitted well known social activist Ms. Shabnam Hashmi to adopt a child even though Muslim Personal law does not allow it. Thus if someone does not follow any provision of Muslim Law, he cannot be held liable for any wrong.
Indian constitution recognizes several fundamental rights such as right to life and personal liberty, freedom of speech and expression, right to free movement throughout the territory of India, freedom of religion etc. These rights have positive rights as well as negative liberties in equal measure. Thus right to free speech includes ‘right to silence’. Right to move includes right not to move anywhere. In one case the Supreme Court of India did indeed hold that right to life includes even ‘right to die’. Similarly, freedom of religion clearly includes freedom not to follow any religion or personal law. No Muslim can either be forced to follow Muslim Personal Law or compelled not to follow it. Muslim Personal Law is based on opinions and everyone is free to adopt any opinion.
Faizan Mustafa is Vice-Chancellor of NALSAR University of Law, Hyderabad