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Indian Muslims: Discontent over judicial interventions in personal laws

Lucknow: In what may be termed as an absolute case of oxymoronic-syndrome, the issue of ‘judicial activism’ from now onwards, is to be construed as ‘judicial interference’. The judges of the High Courts and Supreme Court are to interpret law and not to make law. The All India Muslim Personal Law Board (AIMPLB), the apex Muslim body concerned with the protection of the personal laws, as a part of its follow-up exercise, after its three days general body meeting, has started to organise for the long battle against what is being termed as ‘interference with Muslim Personal Law by the honourable judges.

Indian Muslims: Discontent over judicial interventions in personal laws

The seminar on ‘Judicial Activism in Personal Law and Customary Law’ held at Mumtaz Post Graduate Degree College here was a pointer to times ahead. It charted the broad recourse, soon to be adopted, in order to sensitise the judiciary against interference with Muslim Personal Law not to speak of the ever-lurking danger of the Uniform Civil Code (UCC). Remember former Union Law Minister HR Gokhle said that the Adoption Bill was the first step towards UCC, which in part triggered the formation of AIMPLB in 1973. Organised by Citizens for Peace and Justice, the seminar was headed by Manzoor Ahmed, former Vice Chancellor of Agra University.

"Islam gave the first concept of multi-cultural society. Meesaq-e-Madina (Covenant of Medina) still bears witness to it. Jews and Christians were sanctioned to be governed by their personal laws. Multiculturalism is the essence of nationhood. UCC would weaken the nation. If we are not allowed to live by our personal laws then everything becomes subsidiary," said Manzoor Ahmed in his speech.

"Judges seem to be donning the mantle of publicists, social-reformers, adventurers and even Mujtahids. They have been poking nose at their sweet will in Muslim Personal Law irrespective of how deeply it hurts the Muslim sentiments. Judicial tyranny is going on unabated. Perhaps judiciary is getting this adrenaline because our legislature is not playing its positive role. It is our legislature and not judiciary which makes laws," said Professor M Shabbir, Dean of the Faculty of Law at AMU. He made a parallel as to how culture is considered to be the supreme law of the land. "Germany is a living example. Culture encompasses emotion, ethos, patriotism, customs and nationalism. All personal laws and customary laws are the laws of the land," he pointed out adding that "Any interference with them would amount to social chasm and chaos. US which is the most prosperous nation, has different laws for its different states. It understands the sensibilities of its diverse people. It gives equal sanction to all respective personal laws. Why can’t our judiciary understand that for a nation to go ahead every citizen has the right to abide by his or her personal law. Judiciary can make or mar the nation," he cautioned. Shabbir has written 13 books on the subject of law.

Maulana Idrees Bastavi, a founder-members of AIMPLB, read the message of the former Supreme Court judge, Justice Saghir Ahmed. Written in chaste Urdu, Justice Saghir sent his good wishes for the success of the campaign. He was to preside over the function but could not attend due to a sudden asthmatic attack.

The next speaker was Shafeeq Mirza, a veteran lawyer of the Lucknow bench of Allahabad High Court. He discussed threadbare the legal nuances involved in the issue. He said that today, unfortunately though, judicial activism has embarked itself into the domain of judicial interference. To err is human goes the maxim but it should be kept into mind that Islamic laws are not man-made. They have been heavenly ordained. "We cannot accept this judicial interference no matter how much higher the bonafides of the judgement might be. Judiciary is not a reformist body. It ought to confine itself to implementing law," pointed Mirza. He surprised the audience when he referred to The Hindu Marriage Act 1955 which he termed is an enhancement of Islamic Law. "Divorce and Maintenance were alien to the Sanatan Hindu religion. But, Prime Minister Nehru, very astutely, got them adopted through legislature and did not acknowledge the Islamic backgrounder to the bill," he said adding that Application of Shariat Act 1937 was adopted by the Britsh rulers sanctioning that matters pertaining to marriage, divorce, succession, inheritance, maintenance and dower would be governed by Islamic laws if the two parties happen to be Muslims. "All personal laws lie within the framework of our fundamental rights," he said.

Mirza further clarified that after divorce a Muslim husband compulsorily has to pay maintenance to his wife for three months, unlike 125 CrPC under which maintenance has to be paid until the wife remarries. Mirza also shed light on the Shah Bano case which had taken the nation by the storm in 1985. He said that she was married in 1932 to Muhammed Ahmed Khan and after 43 years of her marriage was divorced in 1975. She had claimed maintenance in 1978 and in 1985 the SC ordered for her maintenance. "It smacks of a made up case. But, it is also true that she had herself got her own daughter-in-law divorced by her son. What’s her story? Does anyone know?" he questioned.
The Indian parliament under PM Rajiv Gandhi, as a result of the Shah Bano case storm, passed the Muslim Women (Protection of Rights on Divorce) Act 1986. Yet, in all the senses there is no real solace from judicial flirtations. Mirza went on to say that "Daniel Latifi V’s Union of India had challenged the constitutional validity of the Act in 2001. This was followed by Shamim Ara vs. State of UP in 2002. Here she had sought that divorce should be witnessed before the court. The third came in the form of Iqbal Bano vs. State of UP in 2007. The SC ordered that the liability of maintenance of a divorced wife lies on her husband even beyond the three months stipulated period. The latest is Shabana Bano vs. Imran Khan (2009). These all have been through the Apex Court where the orders issued were contrary to the Muslim Women Protection Act 1986. Thus the whole Application of Shariat Act 1937 has been invalidated. Are our countrymen not able to tolerate certain provisions which even British dare not touch" quipped Mirza.

Zafaryab Jilani, the legal advisor of the AIMPLB lauded the effort saying that a beginning has yet again been made from Lucknow as the Shah Bano campaign had started from Lucknow too. He said that people have the right to protest any SC judgement. "SC should not start to discover how men and women are equal in the eyes of Islam as Imam Shafaee, Ibn Hambal, Abu Hanifa and Imam Malik have been the unanimous Islamic jurists and Muslims would abide by their rules. SC judges depend on English translations which do not understand the essence of the Arabic legal language," he said.

The secretary of AIMPLB Wali Rahmani referred to the Naga customary laws which have all been upheld by our constitution, as it is they, who are the real inhabitants of this land. "All their indigenous laws are protected. On the contrary Madhya Pradesh High Court has given an interim stay-order on ‘qazi-court’ decisions saying that it amounts to running a parallel judiciary. This is ridiculous as ‘qazi-courts’ are in force since 1937, and moreover, they are responsible to hugely reduce the burden of the judicial workload," he said adding that "The judges can send anything for a forensic investigation before the judgement but why can’t they consider an expert Arabic legal opinion whenever confronted with such a situation.”

The seminar ended in a whimper as Former Chief Justice of India (CJI) Justice AM Ahmedi was to be the chief guest but not unusually with our elitist leaders he did not turn up. Yet, despite poor organisation, it was enough to gauge the unruffled Muslim sentiment over the onslaught from all sides. There is a pertinent discrimination against Muslims, documented well by Sachar Report, and yet, the accusation of BJP of ‘minority appeasement’, coupled with the spurt in the High Courts or Supreme Court decisions which are making the Application of Shariyat Act 1937 redundant.

Would there be a permanent amendment through the parliament to help silence such discrepancies? Is the government lending an ear to this simmering discontent? General elections 2014 might find this to be one of the contentious issues on UPA’s platter.

This article appeared in The Milli Gazette print issue of 1-15 July 2010 on page no. 8

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