By Vibhu Sharma
Recent discussions have predominantly focused on Personal Laws, particularly the Muslim Personal Law in India, centering on issues such as women's rights, state authority, and constitutional freedoms. Notably, there has been a significant oversight in exploring the theoretical aspects of Personal Laws and the State's role in these discussions. This article aims to rectify this gap by offering insights into the theoretical foundations of Personal Laws and the State's engagement in this realm. The realm of Personal Laws, particularly Muslim Personal Law, has become entangled in controversies, particularly concerning gender equality. In India, where distinct communities adhere to their individual sets of personal laws, Muslim Personal Law often faces criticism for perpetuating gender inequality. This paper undertakes an analysis of gender inequality concerns within the scope of Muslim personal laws, specifically focusing on property rights and the right of dissolution of marriage. The core argument presented in this paper asserts that gender inequality in India is rooted in deeply ingrained cultural patriarchy, lacking explicit religious endorsement. Moreover, discriminatory laws contribute to the perpetuation of this inequality. The paper contends that the challenging circumstances faced by Muslim women in India do not inherently derive from Islam itself but rather result from a lack of understanding of usul-ul-fiqh. This ignorance leads to a failure to assert rights guaranteed by Islam. The paper underscores that a deficiency in knowledge of usul-ul-fiqh contributes to the prevailing misconception that Muslim personal law inherently oppresses women, whereas, in reality, it advocates for their equal rights.
KEYWORDS: India, Muslim personal laws, Usul-ul-fiqh, Genuine gender equality, Islamic jurisprudence.
Indian Muslim Law, also referred to as Muslim Personal Law or Islamic law, constitutes a legal framework governing personal matters within the Muslim community in India. Its foundational principles are drawn from Islamic jurisprudence, primarily derived from the Quran, Hadiths (sayings and actions of Prophet Muhammad), and consensus among Islamic scholars.
In contrast to other communities in India adhering to a uniform civil code, Muslims are guided by their distinct personal laws. These laws encompass various facets of personal life, encompassing marriage, divorce, inheritance, and family relations. The evolution and application of Indian Muslim Law signify a fusion of religious tenets and legal interpretations. A pivotal element within Indian Muslim Law is the concept of Sharia, representing Islamic law derived from the Quran and Hadith. Sharia serves as a moral and legal compass for Muslims, influencing ethical conduct. Its application within the Indian context involves a dynamic interplay between traditional Islamic principles and the country's legal structure. Debates and discussions on Indian Muslim Law have intensified over time, particularly addressing issues like gender equality and the need for reform. The intricacy arises from the coexistence of religious laws alongside India's broader legal framework, leading to a nuanced legal pluralism. Comprehending Indian Muslim Law necessitates a comprehensive approach that considers both religious precepts and the evolving legal landscape in India.
As the nation grapples with questions surrounding personal laws and their alignment with constitutional values, the discourse on Indian Muslim Law remains a dynamic and evolving aspect of India's legal and cultural mosaic. The article delves into the realm of legal pluralism within the framework of Muslim Personal Law in India, seeking to explore the nuanced understanding surrounding the presence, absence, and operation of personal law systems in a Constitutional democracy. The structure of the article unfolds in distinct parts, with the second section delving into the theoretical dimensions of the Personal Law discourse. Within this section, the aim is to identify three distinct sets of questions that form the foundational discourse on the issue. The fourth part accentuates what the author terms as 'contested' understandings emanating from both state and community perspectives. The argument posits that Personal Laws grapple with dual affiliations, rendering them traversing a challenging terrain within the legal system.. Despite the foundational commitment to secularism in the Constitution of India, there persists a confounding situation where laws are categorized according to religious identities, which runs counter to the overarching principles of equality[1] religion cannot be divorced from the ground realities of Indian political system.
Given the disadvantaged and underdeveloped social status of Muslims in India, as highlighted by the Sacchar Committee Report[2], and the portrayal of Muslim societies as vehicles suppressing human rights, there has been considerable debate surrounding women's rights under Muslim Personal Law. In India, there is a prevalent tendency to attribute laws perceived as severely oppressive to women to Islam. The absence of a codified Muslim personal law, coupled with the misconception of viewing Islamic law as a uniform entity, places the responsibility of delivering justice to Muslim women squarely on the judiciary. Paradoxically, the judiciary, while treating Muslim personal law as untouchable, engages in the simultaneous reform of other personal laws applicable to various communities. This analysis aims to examine Muslim personal law in India, specifically addressing gender inequality concerns through the lens of usul-ul-fiqh. The focus is limited to issues related to property rights and the right of dissolution of marriage.
MUSLIM PERSONAL LAW: THE IDEA
Personal Laws serve as a testament to the coexistence of diverse affiliations within the legal framework of a state. On one hand, there exists a pressing need for adherence to constitutionally recognized standards, particularly those safeguarding religious freedom and related fundamental rights. Simultaneously, the realm of personal laws is shaped by the imposition of religious norms, generating distinct standards of behavior for members within specific communities. The intricate balance between constitutional mandates and religious norms forms the crux of this complex dynamic. At its core, the legal system within a state is tasked with navigating these dual imperatives—ensuring conformity with constitutional principles while accommodating the unique standards dictated by religious affiliations. Constitutionally, the recognition of religious freedom is a cornerstone, affirming the right of individuals to practice and profess their faith. This fundamental tenet aligns with broader principles enshrined in the Constitution, emphasizing the protection of individual liberties. However, this constitutional protection is not absolute and must coexist with the imperative to uphold a uniform set of legal standards applicable to all citizens. The tension between religious norms and constitutional imperatives is perhaps most palpable in the realm of personal laws.
In the pursuit of harmony between constitutional mandates and religious norms, challenges inevitably arise. These challenges manifest prominently in legal decisions, policy formulations, and societal debates. Striking a balance requires a nuanced understanding of the diverse fabric of personal laws, acknowledging the significance of religious norms in shaping the identity and practices of various communities. Moreover, the legal system's role in accommodating multiple affiliations extends beyond legal doctrines; it encompasses broader societal considerations. While the Constitution provides a framework for legal standards, the acceptance and legitimacy of personal laws within communities are deeply intertwined with societal attitudes, perceptions, and cultural traditions. The coexistence of multiple affiliations within the legal system, as exemplified by personal laws, underscores the intricate dance between constitutional imperatives and religious norms. This dynamic interplay not only shapes legal doctrines but also reflects the cultural, moral, and societal fabric of diverse communities. Navigating this complex terrain requires a careful consideration of both constitutional principles and the deeply rooted religious affiliations that contribute to the rich tapestry of legal pluralism within a state. The multiplicity of legal norms, therefore, is an existing reality; and, we cannot ignore the multiple legal identities which exist within any society.[3]
In a plural society, it seems wrong to assume that State would be the only legally tenable construction by the individuals; and, only positive law could be the legally possible solution.[4] In legal frameworks centered on authority, it’s conceivable that within society, individuals may establish legal authorities operating within the bounds of the law yet not acknowledged by the State’s legal system. The legitimacy of these legal norms and alternative legal systems might be assessed by the State based on reasonability determined by legislation, executive orders, or judicial decisions. For instance, in Vishwa Lochan Madan v. Union of India,[5]The Supreme Court of India dabbled with the question whether the fatwas (legal opinions) issued by Muslim religious institutions are legally valid or not? The establishment of a State Inevitably engenders the concept of national identity. However, it’s crucial to recognize that nationality is merely one facet of the complex array of identities each individual bears within a State. In the intricate tapestry of personal affiliations, individuals seldom unite in matrimony solely on the grounds of national identity, although issues of nationality may surface subsequently. Rather, matrimonial unions are often forged based on a myriad of individual factors such as personal interests, religion, ethnicity, domicile, economic standing, and more.
These diverse identities inherent in each person can give rise to legal implications that extend beyond the realm of national status. When individuals form unions, the legal ramifications that emerge are not solely derived from their national identities but are intricately woven into a rich fabric of socio-legal norms. These norms, flourishing independently prior to and irrespective of the State’s existence, contribute significantly to the legal landscape. The multifaceted nature of Individual identity underscores the nuanced interplay between personal affiliations and the legal realm. Marriage, for instance, encapsulates a union that goes beyond the confines of national identity. Couples unite based on shared interests, religious beliefs, cultural background, and socioeconomic status. The legal implications of such unions, therefore, emanate not only from the national context but also from the intricate interweaving of these diverse personal identities. Moreover, the legal landscape shaped by socio-legal norms predates the formal existence of the State. These norms, rooted in societal values, customs, and traditions, lay the groundwork for legal implications arising from individual identities. The State, in turn, becomes a custodian and interpreter of these pre-existing norms, navigating the intricate terrain of legal implications stemming from the myriad identities within its jurisdiction. Understanding the legal implications of multiple identities necessitates a nuanced exploration of the socio-legal landscape. Individual identities are not static; they evolve and adapt, influencing and being influenced by the prevailing legal norms. The legal system, therefore, must navigate the dynamic interplay between personal identities and established norms, recognizing that legal implications can emerge from sources beyond the explicit confines of national identity.
In essence, the creation of a State sets the stage for the emergence of national identity, but the legal implications of individual identities extend far beyond this foundational concept. By acknowledging the influence of various factors such as personal interests, religion, ethnicity, and socio-economic status, the legal system can better comprehend and address the intricate web of legal implications woven into the diverse identities within its jurisdiction. The recognition of these complexities underscores the importance of a holistic and inclusive approach to legal interpretation and application. The coexistence of multiple identities and concurrent legal norms often sparks conflicts in legal formulations.
For instance, in the context of a Muslim man divorcing his wife, determining ‘maintenance’ poses a dilemma: should it align with Muslim Personal Law (Shari’a) or Section 125 of the Code of Criminal Procedure?[6] When resolving such formulations, the aim is typically to find a middle ground. In many cases, the judiciary takes on the role of mediating between conflicting norms. However, the judiciary, guided by Constitutional norms and formulations, encounters inherent limitations in its approach. This is where a lack of overall appreciation from the judicial institution often leads to non-State legal norms gradually becoming redundant on the legal plane over an extended period. The process of deciding legal matters Involving multiple identities and conflicting norms necessitates a delicate balance, often seeking a middle path to reconcile diverse legal frameworks. In the intricate tapestry of legal considerations, the judiciary frequently assumes the pivotal role of an arbitrator, striving to harmonize competing norms for the sake of justice and equity. Yet, the judiciary’s role is not without constraints. Its guiding principles are firmly rooted in Constitutional norms and legal formulations, imposing boundaries on the extent to which it can accommodate non-State legal norms. While the judiciary endeavors to navigate through the complexities of diverse identities and legal frameworks, its allegiance to Constitutional principles inherently shapes and confines its approach.
The limitations embedded In the judiciary’s framework become particularly evident in cases where non-State legal norms come into play. These norms, derived from societal customs, traditions, and religious practices, may not always align seamlessly with the constitutional fabric that guides the judiciary. As a result, there is a subtle tension between the judiciary’s commitment to constitutional principles and its endeavour to accommodate the rich diversity of legal norms present within society. It is in this delicate balancing act that a potential risk emerges – the gradual redundancy of non-State legal norms on the legal plane. The lack of comprehensive understanding or acknowledgment from the judicial institution regarding the intricate nuances of non-State legal norms can contribute to their diminishing relevance over time. This phenomenon occurs not due to an inherent flaw in these norms but rather as a consequence of a system that may not fully appreciate the depth and significance of the legal pluralism inherent in a diverse society. The longevity and vitality of non-State legal norms hinge on their recognition and accommodation within the broader legal landscape. Without a nuanced understanding and acknowledgment from the judiciary, these norms may be relegated to a status of redundancy, losing their efficacy on the legal plane. aaThus, there exists a pressing need for the legal system to evolve in tandem with the diverse identities and legal frameworks present in society, fostering an inclusive approach that appreciates and accommodates the richness of legal pluralism. Only through such an evolution can the potential pitfalls of redundancy be mitigated, ensuring a legal landscape that resonates with the complexities of a diverse and dynamic societal fabric.[7] Consider the issue of Talaq (divorce initiated by the husband) in Muslim Law. The validity of pronouncing Triple Talaq has led to various interpretative perspectives, including viewing Triple Talaq as a deviant interpretation within Shari’a (suggesting it should be recognized as a less acceptable interpretation), treating Triple Talaq as illegal under the law, and deeming the pronouncement of Triple Talaq as a criminal act, as outlined in the Muslim Women (Protection of Rights on Marriage) Act, 2019, commonly known as the Triple Talaq Act, 2019.[8] In such scenarios, without impartial mediation, it becomes inevitable that the judiciary will eventually assume the paramount role of the ultimate legislator, gradually nullifying the plurality of legal norms.[9] The State’s process of positivizing and formalizing law leads to outcomes that may seem unnatural. This transformation results in perceiving every conflict of interest as a ‘dispute,’ and each dispute, in turn, gives rise to legal consequences. The state-driven effort to codify and institutionalize legal principles often oversimplifies the complexities inherent in human interactions, categorizing diverse conflicts under the umbrella term ‘dispute’ and subjecting them to legal repercussions.
The positivization of law, orchestrated by the State, Imposes a structured framework that tends to homogenize the treatment of conflicts. In this formalization, the intricacies and nuances of varying conflicts of interest are subsumed into a legalistic approach, where each disagreement is processed as a dispute to be addressed through legal channels. This inclination to view conflicts solely through the lens of legal ramifications can yield results that seem artificial or detached from the intricacies of real-life situations. Not every disagreement or clash of interests necessarily warrants a legal intervention, and the broad categorization of conflicts as disputes may lead to an overreliance on legal mechanisms to resolve matters that could be addressed through alternative means. The unintended consequence of this positivization and formalization is the creation of a legalistic paradigm where the State’s involvement becomes the default response to any conflict. This can potentially overshadow alternative, more context-specific approaches to dispute resolution that may be better suited to the nature of the disagreement at hand. As a result, the natural diversity in human interactions and conflicts is distilled into a standardized legal process, introducing a level of artificiality into the resolution of disputes within the formalized legal system.[10]
The escalation of minor conflicts into battles for 'rights' and the pervasive transformation of every interest into a legal matter underscore a significant shift in the dynamics of societal interactions. An emblematic example of this phenomenon is evident in the Triple Talaq Act, 2019, where criminal law implications have been introduced into what was traditionally considered a purely civil relationship. In this evolving landscape, conflicts that might have once been navigated through personal or community-based resolutions are now cast into the legal arena, framing them as matters of 'rights' rather than interpersonal disputes. This shift reflects a broader societal trend where legal frameworks increasingly permeate the intricacies of daily life, reshaping how individuals perceive and address their conflicts. The Triple Talaq Act, 2019, stands as a poignant illustration of the consequences of this trend. What was initially a civil matter, the pronouncement of Triple Talaq, has now acquired criminal law implications. This legal metamorphosis not only alters the nature of the conflict but also introduces punitive measures within a realm traditionally governed by personal, religious, and familial considerations. The introduction of criminal law into the realm of marital relationships signifies a departure from conventional practices, raising questions about the appropriateness of employing punitive measures in matters that were historically resolved through diverse cultural and religious mechanisms. The over-legality, or 'overt legality,' embodied in this shift reflects a broader societal inclination to rely on legal frameworks as a primary means of addressing conflicts, even those deeply rooted in personal and cultural contexts. The proliferation of legal implications in various facets of life contributes to the reinforcement of the State's authority over its subjects. By expanding the reach of legal frameworks into areas traditionally governed by societal norms, the State assumes a more pervasive role in arbitrating disputes and defining the boundaries of acceptable behavior.
Furthermore, the entanglement of legal matters with political implications amplifies the stakes involved in seemingly private affairs. The Triple Talaq Act, 2019, becomes not only a legal instrument but also a tool with political ramifications. This intertwining of law and politics underscores the interconnected nature of legal changes and their broader societal impact. The consequence of this 'overt legality' is a nuanced transformation in power dynamics. The State, through its legal apparatus, assumes a more interventionist role in regulating individual behavior, particularly in areas traditionally considered within the purview of personal autonomy and communal norms. This shift raises concerns about the potential erosion of cultural diversity and the imposition of a uniform legal perspective on matters that were historically shaped by a mosaic of cultural, religious, and familial influences. In short, the evolution of minor conflicts into battles for 'rights' and the increasing intertwining of legal and political implications exemplify a profound shift in societal dynamics. The Triple Talaq Act, 2019, serves as a poignant case study, illustrating how the encroachment of legal frameworks into traditionally personal and cultural domains transforms the nature of conflicts, amplifies the authority of the State, and introduces complex political dimensions into ostensibly private matters. This era of 'overt legality' prompts reflection on the balance between legal intervention and cultural autonomy, urging a nuanced examination of the implications of such transformations on the fabric of our diverse and dynamic society.[11]
Analysing Shari’a through Personal Laws
Shari’a in itself is a very amorphous term. It can have many connotations ranging from moral values, ethical codes, standards of behaviour or even legal rules.[12] Understanding Shari’a as law in the strictest sense would be an erroneous approach, and further, interpreting it merely as a product of positive law, manifested in the form of personal laws, would constitute an even more substantial misstep. The intricacies of Shari’a defy straightforward categorization within conventional legal frameworks. While representatives advocating for the protection of Personal Laws within the Muslim community actively engage in legal battles throughout the country, it is noteworthy that religious scholars, in their individual capacities, seldom invoke the provisions outlined in legislative acts such as the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Dissolution of Muslim Marriages Act, 1939, or the Triple Talaq Act, 2019.
To comprehend Shari’a purely as law in the strict sense is to oversimplify a complex and multifaceted system deeply embedded in religious, moral, and ethical dimensions. Shari’a encompasses a comprehensive way of life, guiding not only legal matters but also personal conduct, morality, and spirituality. Unlike conventional legal systems, Shari’a draws from religious principles and divine guidance, making it inherently distinct from positivist legal traditions. Furthermore, construing Shari’a as a derivative of positive law, particularly in the context of personal laws, oversimplifies its nature and risks distorting its essence. Shari’a operates within a distinct paradigm, intertwined with religious teachings and ethical considerations. While personal laws may be derived from religious principles, they are but one facet of the broader Shari’a framework. The paradox emerges in the juxtaposition of the advocacy for the protection of Personal Laws by Muslim representatives and the limited utilization of specific legislative acts by religious scholars in their individual capacities. The protective stance toward Personal Laws indicates a commitment to preserving the unique cultural and religious identity of the Muslim community within the legal landscape. However, the limited reliance on legislative instruments like the Muslim Women (Protection of Rights on Divorce) Act, 1986, the Dissolution of Muslim Marriages Act, 1939, or the Triple Talaq Act, 2019, suggests a nuanced relationship between religious scholarship and statutory provisions. The selective use of legal frameworks by religious scholars underscores a divergence between the organic development of Shari’a principles within the Islamic tradition and the codification efforts reflected in specific legislation. It emphasizes that the rich tapestry of Shari’a is not entirely encapsulated within legislative enactments and that the legal landscape surrounding personal matters remains entwined with broader religious and cultural considerations. The dichotomy observed In the approach toward Personal Laws highlights the need for a nuanced understanding of Shari’a within the legal discourse. It invites exploration into the dynamic interplay between religious principles, cultural identity, and legal frameworks. The discrepancy between legal advocacy and the practical application of specific legal instruments emphasizes the multifaceted nature of Shari’a and its continuous evolution within the complex dynamics of contemporary legal systems. Contemporary scholars rely on uncodified versions of Shari’a from classical Islamic literature. This highlights that the advocacy for Personal Laws is rooted in religious identity, not faith or religion, and underscores the risks of codification influenced by majoritarian politics. Moreover, Personal Laws serve a singular purpose, aiding courts exclusively in adjudicating matters related to personal disputes. Their utility is confined to the legal domain, offering a framework for the resolution of specific issues within the judicial system. In essence, these laws provide a structured approach for courts to navigate and decide cases pertaining to personal disputes, emphasizing their instrumental role in the legal machinery. The application of Personal Laws Is not expansive beyond the courtroom, as they are designed to address specific conflicts arising in personal spheres. This targeted function reinforces the idea that these laws serve as legal tools rather than comprehensive guides for personal conduct or societal norms. Consequently, their impact is concentrated within the legal realm, where they offer a specialized mechanism for handling disputes governed by religious or cultural considerations. In this context, the limited scope of Personal Laws becomes evident, highlighting their role as legal instruments tailored for the adjudication of specific disputes rather than comprehensive guides shaping broader aspects of individuals’ lives or community practices. Their relevance is contingent on their application within the legal system, emphasizing their specialized and delimited function in facilitating the resolution of personal conflicts within the confines of the courtroom.[13] Moreover, it remains noteworthy that Muslim religious scholars, commonly referred to as Ulema, and dispute settlement institutions such as Darul Qazas, persistently adhere to the guidance of Shari’a, diverging from reliance on the State-acknowledged corpus of positive law. This steadfast commitment to Shari’a as a guiding principle underscores a crucial aspect of the Muslim community’s legal landscape. The positivization of Shari’a, evident in the formulation of Muslim Personal Law, introduces a paradoxical dynamic. Rather than enhancing its intended objective of providing comprehensive guidance for the lives of Muslims, with or without the involvement of the State, this process tends to dilute the inherent essence of Shari’a. Shari’a, as a multifaceted system encompassing religious, moral, and ethical dimensions, is intricate and deeply rooted in the cultural and spiritual fabric of the Muslim community. The engagement of Ulema and Darul Qazas with Shari’a over State-recognized positive law reflects a deliberate choice to uphold a system that transcends the formalized boundaries of codified legal frameworks. Shari’a, as interpreted and applied by religious scholars and dispute settlement institutions, operates within the framework of cultural and religious traditions, navigating the complexities of individual and communal life.
The divergence from State-recognized positive law in favor of Shari’a signifies a commitment to preserving the autonomy of the Muslim community’s legal and ethical principles. It acknowledges that the comprehensive nature of Shari’a, as found in classical Islamic literature, provides a nuanced and context-specific approach to guiding the lives of individuals. This commitment is evident in the continued reliance on Shari’a by Ulema and dispute settlement institutions, even in the face of formal legal structures established by the State. In essence, the paradox emerges from the tension between the formalization of Shari’a through positivization and its organic, contextual application by religious scholars and dispute resolution bodies. While the State endeavors to codify aspects of Shari’a through Muslim Personal Law, the Ulema and Darul Qazas persist in embracing Shari’a in its uncodified, dynamic form. This dynamic reflects the inherent challenge in reconciling the rich, multifaceted nature of Shari’a with the codified and positivized legal frameworks instituted by the State. Therefore, the choice to adhere to Shari’a over State-recognized positive law underscores a deeper commitment to the organic development and application of Islamic legal principles within the Muslim community.
Guiding principles of faith and constitutional norms
While it’s accurate that in a Constitutional democracy, the Constitution serves as the ultimate benchmark for the legitimacy of legal norms, principles, and rules, it doesn’t imply that Constitutional standards dictate the fundamental nature of religious legal principles. The Constitution’s role is not to delve into the specifics of content debates but rather to establish the ultimate criterion for assessing the legitimacy of legal norms. This implies that legal norms must initially satisfy the test of legitimacy based on the standards originating from their own source or corpus. In essence, norms should align with the principles of the source from which they originate. Therefore, claiming that certain Shari’a norms violate women’s rights is a flawed assertion. To establish such a violation, the norms must genuinely emanate from Shari’a. Consequently, determining the validity of practices like Triple Talaq requires an examination of its foundation in Shari’a, a task best undertaken through consultation with Ulema rather than engaging solely in discussions about rights.[14]
Once it is found to be a part of Shari’a, then the question as to whether it can be applied in normal circumstances or not, arises (majority of scholars identify it as an exceptional situation)[15]. Answer to this question can again only be ascertained by looking into the scholarly opinions, discussions and debates – both classical and contemporary, often also looking into the comparative perspective.[16] Therefore, if the practice is either found not to be a part of Shari’a, or not to be applicable in normal circumstances, the test against rights does not arise. As mentioned above, Shari’a can be interpreted in variety of ways. Therefore, to limit its understanding to the performance of legal function only would be a wrong assumption.
The principles of Islamic Law as they spring from Shari’a a remain equally relevant for Muslims even in the absence of a State-recognized body of Muslim Personal Law.[17] Therefore, it would be a wrong assumption to understand the religious institutions and their functions as purely legal. For instance, to equate fatwas given by a religious scholar with judicial function would be a wrong assumption. They are merely scholarly opinions whose function is not to settle disputes between parties but to provide opinions on matters at hand. Hence, the ruling of the Court that fatwas are not legally valid in Vishwa Lochan Madan Case[18], is not legally tenable, for neither their nature nor their purpose is purely legal. It is a fallacious assumption to require that the principles of Shari’a must universally align with the standards of a secular constitutional democracy. This misconception arises from the misunderstanding that legal principles within Shari’a are obligated to conform to the framework of a Constitution. However, it is essential to recognize that these principles do not derive their existence from the Constitution, and they are neither components of the Constitutional framework nor do they originate from it. The assessment of the validity of Shari’a principles against the standards of the Constitution has certain limitations. These principles, intrinsic to Shari’a, do not emanate from or fall under the purview of the Constitution.
As such, when it comes to evaluating their content, the Constitution does not play a role. The legal principles within Shari’a operate within their own framework, guided by religious and cultural foundations, independent of the constitutional norms of a secular democracy. However, a critical distinction emerges when considering the invocation of these principles in practice. In instances where the operation of Shari’a principles is invoked, it is the Constitutional framework that governs their fate. This is a pragmatic acknowledgment that, despite Shari’a not being rooted in a secular constitutional democracy, it coexists within the legal framework of the Constitution. Consequently, the legal limits and parameters delineated by the Constitution come into play when Shari’a principles are operationalized within the legal system. The reason for this lies In the coexistence of Shari’a and secular constitutional democracy within a shared legal space. While Shari’a principles may not find their origin in the secular constitutional framework, they do exist within the broader legal context defined by the Constitution. As such, when the practical application of Shari’a intersects with the legal operations governed by the Constitution, it is the constitutional framework that holds sway. The constitutional limits act as a regulatory mechanism when Shari’a principles are invoked within the legal system. This ensures a harmonious coexistence where the Constitutional standards guide the operational aspects, even though the foundational principles of Shari’a remain distinct from those of secular constitutional democracy.
The misconception that the principles of Shari’a must conform entirely to the standards of a secular constitutional democracy overlooks the nuanced relationship between these distinct legal frameworks. Shari’a, with its unique origin and foundational principles, operates independently of the Constitution. Yet, when its operational facets intersect with the legal system governed by the Constitution, the constitutional framework dictates the legal limits. This recognition of coexistence within a shared legal space reflects the intricacies of navigating diverse legal traditions within a broader legal landscape. Courts within a secular constitutional democracy not only derive their existence from the Constitution but also operate under its authority, adhering to its principles. Consequently, they inherently promote the ideals of the Constitution in their functioning, a justified alignment. However, this alignment poses methodological challenges when matters involving Shari’a are brought before secular courts, introducing an inherent bias toward the Constitutional framework. In instances where issues such as Triple Talaq, involving mutual rights and duties between spouses, come before the courts, the Constitutional standards take precedence.
Courts, by necessity, scrutinize matters through the lens of the Constitution, particularly concerning women’s rights in cases of divorce, maintenance, and child custody. This approach, while justified within the secular legal framework, limits the scope for religious discourse based on Shari’a, as the courts are bound to prioritize and adhere faithfully to the Constitutional framework. Since personal matters many a times involve discourse on rights, courts have to strike a balance between the demands of secular legal system and religious legal principles. For courts, it is a question of fidelity towards the Constitution. Therefore, they end up testing the standards of Shari’a against constitutional mandate, for instance, of equality between spouses, maintenance of women beyond the period of iddat etc. This, however, cannot be done without entering into religious discourse. Courts in India, have thus evolved the ‘essential religious practices’ test[19].
Mechanism for resolving disputes
A mechanism designed to facilitate the resolution of disputes serves as a critical component within the broader legal landscape. The intricacies of dispute resolution are multifaceted, requiring a structured approach that balances fairness, efficiency, and adherence to legal principles. This mechanism, often embedded within legal systems, encompasses various methods and processes aimed at resolving conflicts between parties in a just and equitable manner. At the core of any dispute resolution mechanism is the fundamental goal of addressing conflicts and reaching a resolution that satisfies the interests of the involved parties. The necessity for such mechanisms arises from the inherent complexities of human interactions, where disagreements, differences, and conflicting interests are inevitable. The effectiveness of a dispute resolution mechanism lies in its ability to provide a fair and impartial platform for resolving disputes, fostering a sense of justice and maintaining social order. One of the primary considerations in designing a dispute resolution mechanism is the selection of an appropriate method that aligns with the nature of the dispute. Various approaches exist, ranging from traditional litigation in courts to alternative methods such as mediation, arbitration, and negotiation. Each method has its own advantages, drawbacks, and suitability for different types of disputes. Litigation, as a formal legal process, involves presenting a case before a court, where a judge or jury makes a binding decision based on applicable laws and legal precedents.
While litigation provides a structured and authoritative resolution, it often involves lengthy procedures, significant costs, and a formalized adversarial process. In contrast, alternative dispute resolution (ADR) methods offer more flexibility and less formality. Mediation, for example, involves a neutral third party facilitating communication between disputing parties to reach a voluntary agreement. Arbitration entails a neutral arbitrator making a binding decision after hearing both sides. Negotiation, on the other hand, allows parties to engage in direct discussions to reach a mutually acceptable resolution. The choice between litigation and alternative dispute resolution depends on factors such as the nature of the dispute, the preferences of the involved parties, and the desired speed and cost-effectiveness of the resolution. Many legal systems incorporate a combination of these methods, allowing parties to choose the most suitable approach for their specific circumstances. Within dispute resolution mechanisms, the role of legal professionals is pivotal. Lawyers, mediators, arbitrators, and judges play distinct roles in guiding parties through the resolution process. Legal professionals bring expertise, legal knowledge, and objectivity to ensure that the resolution aligns with legal principles and safeguards the rights of the parties involved.
Moreover, the advent of online dispute resolution (ODR) has added a new dimension to dispute resolution mechanisms. ODR utilizes technology to facilitate the resolution of disputes through online platforms, making the process more accessible, efficient, and convenient. This evolving landscape underscores the importance of adapting dispute resolution mechanisms to the changing dynamics of the digital age. The cultural and societal context also significantly influences dispute resolution mechanisms. Different cultures may have distinct approaches to conflict resolution, emphasizing reconciliation, restitution, or punitive measures. Recognizing and respecting cultural diversity in dispute resolution is crucial for fostering a system that resonates with the values and norms of diverse communities. In other words, a well-designed dispute resolution mechanism is indispensable for maintaining social harmony and ensuring justice in any legal system. Whether through traditional litigation or alternative methods like mediation and arbitration, the effectiveness of these mechanisms lies in their ability to address conflicts in a fair, timely, and cost-effective manner. Legal professionals, cultural considerations, and technological advancements all play vital roles in shaping the landscape of dispute resolution, reflecting the evolving dynamics of contemporary society.[20]
Impeding processes of democratic decision-making and restricting individual autonomy.
Democracy flourishes not only at the individual level but also through active community participation. However, when judicial and legislative bodies engage in methodologically incorrect discourses, it adversely impacts the democratic functioning of the State. In cases where religious principles are not comprehended and applied in their true essence, the constitutional obligation to safeguard community identity, especially on religious grounds, appears to diminish over time. For example, if a marriage has been solemnized in accordance with the principles of Shari’a, it logically follows that its termination should similarly adhere to the same method.[21] The Triple Talaq Act of 2019, specifically under Section 3, criminalizes the pronouncement of Talaq by the husband three times in one instance and deems the act as void. All Sunni schools of Fiqh acknowledge that, in such a scenario, at least one Talaq is established (though the Hanafi Fiqh may consider all three pronouncements of divorce at once, with certain conditions). Labeling such an act as void creates a situation as if no Talaq was established. This introduces conflicting interpretations of Shari’a, diverging from the longstanding tradition of scholarship in the religion. Moreover, it complicates the process of divorce for the spouses, making it easier for the husband to abandon his wife than to grant her a divorce.
The Actual Situation: Disputed Interpretations
The Personal Law system, encompassing religious law and identity, appears to be caught in a web of conflicting interpretations. This situation can be viewed from two angles: one from the standpoint of the State and its institutions, including the legislature and the judiciary, and the other from the perspective of the community identifying with the Personal Law system, such as Shari’a or Muslim Personal Law in the case of Muslims. From the perspective of State, law is something which the State promulgates or the State-centered legal system allows to operate. Indian Constitution through Article 372 allows enforceability of prior existing laws and Article 13 identifies what could be called as ‘law’.[22] Till recently personal law regimes could continue to exist and operate without even invoking Article 13.[23] However, as anticipated with all non-State legal systems, the State cannot entirely define the contours of the Personal Law regime. The State can only determine the space within which such legal regimes are allowed to operate. The challenge then lies in determining who decides and in what manner the operability of personal laws should be. Does the State, through legislative actions, actually define the boundaries of Personal Law, or is it the community, represented by its leaders, that shapes its destiny?
This leads us to the second aspect of the scenario – personal laws from the perspective of the community. When examining the community-level understanding of personal matters, a crucial question arises: who constructs these laws for the community? The concepts falling within the realm of personal laws are often understood through the interpretation of Shari’a presented by the Ulema. The Ulema, in reality, have the final say over relevant personal law matters based on the classical understanding of the religion. Notably, legal principles exist here without dependency upon the State. We are then confronted with two parallel narratives about religious principles – the State narrative channeled through the codification of Muslim Personal Law in positive law, and the narrative crafted by Muslim Scholars through religious doctrine. Both of these narratives are accepted by the Muslim population within a State but in two distinct capacities. By virtue of nationality or presence in the national territory, a Muslim becomes subject to the Constitutional framework, tested against rights such as equality, non-discrimination, and freedom of expression.
However, as a religious subject, a Muslim is also influenced by the religious narrative developed by the Ulema, centered around faith, worship, and obedience to Allah. When entering into any civil relationship where religion plays a role, a Muslim individual must choose between these narratives. Since the State’s legal framework already permits the expression and enjoyment of faith-based identity to avoid conflicts of legal interests, for a Muslim, it becomes easier to adopt both legal narratives. However, problems arise when one narrative conflicts with the other, as seen in the recent Triple Talaq controversy. In such situations, the secular democratic institutions of the State prioritize one interest over the other. As discussed earlier, the judiciary tends to favor fidelity towards the Constitution over the appreciation of religious principles. In doing so, the judiciary not only encroaches upon the domain of the Ulema in determining the content of religious principles but also undermines the religious identity of individuals and the community in the long run.
CONCLUSION
In the intricate weave of Indian Muslim laws, a complex dance unfolds as the secular legal system and religious doctrines intersect, sparking nuanced challenges. This delicate equilibrium is especially vital in personal laws, significant for the Muslim community within India’s diverse constitutional democracy. Essentially, personal laws, often rooted in Shari’a principles, coexist with the broader legal framework established by the Indian Constitution. Attempts to codify Muslim Personal Law, exemplified by the Triple Talaq Act of 2019, reflect the state’s effort to regulate certain aspects while grappling with the challenge of balancing constitutional principles and religious identity. The divergence between the State’s legal narrative and that of Muslim scholars, particularly the Ulema, introduces complications. As final arbiters in religious matters, the Ulema contribute to interpreting personal laws, running parallel to the State’s legal narrative. Individuals navigating both secular and religious dimensions face dilemmas in civil relationships influenced by religious principles. Conflicting narratives prompt institutions, notably the judiciary, to become decision-makers, raising concerns about encroachment into the traditionally Ulema-governed domain. In conclusion, Indian Muslim laws navigate a delicate interplay between secularism and religious autonomy. This complexity demands a nuanced understanding of personal laws, balancing individual rights with religious identity. Harmonious dialogue between the State and religious communities remains crucial in navigating these intricacies in India’s evolving socio-legal landscape.
The author of this article is Vibhu Sharma, a third-year law student at SS Jain Subodh Law College.
[1] Keshvananda Bharti v. State of Kerala & Another AIR 1973 SC 1461.
[2] A Report on Social, Economic and Educational Status of the Muslim Community of India by Prime Minister’s High Level Committee Cabinet Secretariat Government of India November, 2006 available at http://mhrd.gov.in/sites/upload_files/mhrd/files/sachar_comm.pdf.
[3] See generally, J. Griffiths, What is Legal Pluralism?, 18(24) J. Leg. Plur. Unoff. Law 1 (1986).
[4] Id (at 3-4).
[5] AIR SC 2957 (2014).
[6] Mohd. Ahmed Khan v. Shah Bano Begum, 3 SCR 844 (1985).
[7] see the dissenting opinion of CJI J.S. Khehar and Abdul Nazeer J. in Shayara Bano (arguing the following – ‘‘talaq-e-biddat’, is a matter of ‘personal law’ of Sunni Muslims, belonging to the Hanafi school. It constitutes a matter of their faith’, ¶ 192; ‘Religion is a matter of faith, and not of logic. It is not open to a court to accept an Egalitarian approach, over a practice which constitutes an integral part of religion’, ¶ 193; ‘the challenge raised [against triple talaq] is in respect of an issue of ‘personal law’ which Has constitutional protection’, ¶ 194. The judgment of the majority, however, did not much Appreciate the dominant religious aspects of the debate as against the secular law provisions.
[8] Shayara Bano v. Union of India, AIR 9 SC 1 (2017).
[9] Faizan Mustafa, Supreme Court as Clergy, The Tribune (May 20, 2017).
[10] Griffiths, supra, 2 at 3 (‘Precisely because it is an ideology, a mixture of assertions about How the world ought to be and a priori assumptions about how it actually and even Necessarily is, legal centralism has long been the major obstacle to the development of a Descriptive theory of law.’)
[11] Id. (‘the necessary connection between the conception of law as a single, unified and Exclusive hierarchical normative ordering and the conception of the state as the Fundamental unit of political organization.’).
[12] See, Hussein Ali Agrama, Ethics, Tradition, Authority: Toward an Anthropology of the Fatwa, 37(1) Am. Ethnol. 2 (2010).
[13] See, Ebrahim Moosa, Colonialism and Islamic Law, in ISLAM AND MODERNITY: KEY ISSUES AND DEBATES 158. 173 (MK Masud et al. eds., EUP, 2009) (‘A Cambridge- Educated lawyer and later an Indian civil servant, [Asaf A.A.] Fyzee framed Muslim law within the confines of a nation state.)
[14] E.g., Muscat Document of the Uniform Code (the Law) of Personal Status for GCC Countries (1422A.H./2001 A.C.), Al Adl (47) 199.
[15] Nehaluddin Ahmad, A Critical Appraisal of ‘Triple Divorce’ in Islamic Law, 23 Int. J. Law Policy Fam. 53 (2009) (observing that the diversity of views on instant divorce needs to be accounted for.) I do not, however, agree with his observation that Triple Divorce violates the fundamental principle of Islam. In my opinion it is very much a part of Islamic Jurisprudence. What can be questioned is the extent to which this interpretation could be appreciated. It is here that the Ulema hold difference of opinion, with majority of the Sunni Schools holding it to be a non-applicable interpretation. But none of them hold that this kind of an interpretation could never exist, or instead did never exist, at all.
[16] Furqan Ahmad, Understanding the Islamic Law of Divorce, 45 JILI 484 (2003).
[17] Agrama, supra, 11 (arguing that the authority of the fatwas spring from the ethics of the legal tradition and from nowhere else.)
[18] AIR SC 2957 (2014).
[19] The test has been part of several judicial pronouncements in India – The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Tirtha Swamiyar of Shri Shirur Mutt, AIR SC 282 (1954); Dargah Committee, Ajmer v. Syed Hussain Ali, AIR SC 1402 (1961); Sardar Syedna Tahir Saifuddin v. State of Bombay, 2 SCR Supl. 496 (1962). Most Recently discussed in Shayara Bano, supra, 6.
[20] The comparison between traditional scholarship and mainstream scholarship reveals a persisting adherence to the non-codified version of Shari’a and a reliance on the authority of juristic opinions within traditional approaches. This is evident when examining the methodologies employed by scholars such as Asaf A. A. Fyzee, the author of “Outlines of Muhammadan Law,” in contrast to Abu-l-Mahasin Muhammad Sajjad in their treatment of issues within Muslim personal law. The significance of this methodological investigation becomes apparent when considering the contrasting perspectives presented by Fyzee, who advocated for a secular civil law, and Sajjad, who supported a communitarian notion of sharia governance (Moosa, 2016, pp. 158, 174). This distinction in approach is further underscored by scholars like Ebrahim Moosa and Farrah Ahmed. Moosa’s work highlights the divergent stances taken by Fyzee and Sajjad, emphasizing the implications of Fyzee’s advocacy for a secular civil law and Sajjad’s endorsement of a communitarian concept of sharia governance (Moosa, 2016, pp. 158, 174). Ahmed, in her book “Religious Freedom under the Personal Law System” (Oxford University Press, 2016), critiques the personal law system for restricting individual autonomy, offering a critical perspective on its impact. Additionally, Ahmed’s article “Remedying Personal Law Systems” proposes alternative dispute resolution (ADR) mechanisms as more suitable options for settling disputes related to religious personal matters (Ahmed, 2016, p. 248).
[21] Y. Narasimha Rao v. Y. Venkatalakshmi, AIR SC 821 (1991) (where the Supreme Court refused to recognize the ex parte decree of divorce by New Mexico court using New Mexican law arguing that only Hindu law can decide as marriage happened under Hindu Law).
[22] India Const. art. 13: ‘Unless the context otherwise requires: (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law…’.
[23] State of Bombay v. Narasu Appa Mali, AIR Bom 84 (1952).
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