In the political commotion and hysteria of Islamophobia all around and in the wake of the Centre’s announcement of the introduction of a Uniform Civil Code, the most relevant question is: what is the best way to reform personal laws in India, or to bring them within the ambit of a UCC without affecting customary practices across the country, especially those which are not patriarchal or otherwise chauvinistic? A politically motivated UCC will have exemptions. Because of this, it cannot withstand judicial scrutiny. It will also be opposed tooth and nail by all non-Hindu religious communities, not just Muslims, in the public sphere first and in the courts later. In the absence of a draft, unlike in the past, after initial knee-jerk reactions, Muslims have only demanded the draft of the proposed legislation to begin with. Due to this, the government has had to postpone the UCC’s introduction to Parliament in the monsoon session. The Law Commission, too, had extended the deadline for receiving suggestions.
Whether or not the Government of India makes a move before the 2024 general elections, there is a need for serious debate within communities, including Hindus, to understand the nature of their respective laws better. Whatever the reasons, in the last 70 years or so, it has become a common practice to blame Muslims for all of India’s ills. The Muslim community hasn’t helped matters by continuing to swear by laws that seem no less than barbaric in the modern age. Even though a large section of the media is trying to provoke the old Muslims versus UCC debate, Muslims will be no more affected by the UCC than any other Indian community, including Hindus. The Hindus, especially the affluent classes, will be most affected when the Hindu Undivided Family status, with the income tax rebate, is revoked. I am not opposing the HUF because it will deal a severe blow to India’s joint family system, which is already under serious threat from the onslaught of the capitalist economy. But the UCC cannot survive legal scrutiny if it is passed with the exemptions concerning the HUF as its exemption on the income tax is the weakest case for exception in the UCC.
In the context of the laws covered under the ambit of the term, ‘Muslim Personal Law’, most of them have been tested by the judicial process in some way or the other. But that was ages ago. They now need a relook in the context of the current social dynamics in India that are vastly different from what they were in the last century. But this should not be done for electoral polarisation.
The judicial process of Islamic fiqh, the jurisprudence of Islamic law, is juridical and not directly derived from the Quran. There are four Islamic jurisprudential schools of thought among Sunni Muslims alone: Hanafi, Maliki, Shafi’i, and Hanbali. Likewise, Shias have their own schools of jurisprudence. The texture of scholastic Islamic theology, which had the Greek speculative sciences as its primary source, has worn thin; so fiqh automatically requires upgradation. This is only possible through juridical interpretation. Without being sect-specific, Muslim personal laws in India are largely impractical in addressing modern needs.
Most interestingly, what we now call Muslim Personal Law that is in force in India consists of laws enforced during British rule that are not sect specific. The most unfortunate part is that they primarily emanate from Hanafi fiqh; how can a law based on majoritarian Hanafi fiqh settle disputes of other sects?
The principled Islamic position is that only religious obligations towards god, namely Tauheed — believing in one god — namaz, roza, haj, and zakat are set in stone because they are the rights of god. Except these, everything is muamalaat — mundane matters open to constant change. Change in everyday issues of mankind is not only possible but also a must. It is a continuous process in accordance with changing times. Because of this scope, laws are upgraded from time to time in Muslim countries as required. In India, however, these laws are stuck in time because any effort to upgrade them can only come organically from within the community. While several aspects of Muslim Personal Law in India need reinterpretation in accordance with the times, government initiatives will always be suspect.
In Muslim countries, both the legislature and the courts have accomplished this reinterpretation in the recent past. The legislative and the legal systems of Pakistan and Bangladesh are almost the same as in India. In Pakistan, the right of khula — the dissolution of a marriage on the woman’s initiative — is equivalent to the right of talaq — divorce on a man’s initiative. In most Islamic countries, a second marriage is not permissible without judicial intervention. Even in India, the Zamindari Abolition and Land Reforms Act in Uttar Pradesh does not follow the rules of Muslim Personal Law.
There is a long list of such changes in Islamic laws in Islamic countries. There is a need for the Muslim community in India to set up a commission consisting of modern legal scholars and well-read ulema who have a vision and believe in incorporating the progressive principles of all sects. They certainly should be outside the purview of the All India Muslim Personal Law Board, which is predominantly Hanafi with only nominal representation from other sects. This commission must include experts from all sects to make recommendations on the different legal aspects to the government and the community so that the Personal Law of Muslims can be reformed in the light of these recommendations and the reforms are acceptable to all the sects. Whenever a genuine need for a UCC is felt, these recommendations can be used for the same purpose. The main problem with Muslim laws in contemporary India is that they are the exclusive domain of the ulema, who know hardly anything about modern-day law-making and are least concerned with the propaganda against Muslims. Law-making or jurisprudence, fiqh, was never the domain of the ulema; it is the realm of visionary jurists, the mujtahideen. Also, there is no dearth of world-renowned legal experts who know much more about Islamic laws than religious scholars.
We certainly and especially need to revisit all the laws made by the British. A very acute legal mind is required to scrutinise the judgments of the Privy Council as well as those concerning Muslims. Putting a vast community like Muslims in the dock without the application of the finest legal minds and without keeping Indian social dynamics and diversity in perspective is little other than cynical populism for political gains. Indian laws must evolve through constant debate with a progressive outlook on every issue. The State can undoubtedly open a forum for discussion, provided it is not interested in getting political benefits.
Without the careful application of the mind, any politically motivated UCC will not withstand judicial scrutiny.
Ather Farouqui is a Delhi-based writer. Views are personal
