Protecting the Dissent: Relationship between Individual and the Parliament

Recently, in the Writ Petition filed by Justice (Retired) Markandey Katju, former Judge of the Supreme Court, challenging the unanimous resolutions passed by the Rajya Sabha on 11^th March, 2015 and the Lok Sabha on 12^th March, 2015, condemning the expression his views on Mahatma Gandhi and Subhash Chandra Bose the Supreme Court has appointed noted jurist Fali S. Nariman as amicus curiae and has requested the Attorney General for India for assistance.  In the order dated 3^rd August, 2015, the Supreme Court has observed that it is prima facie  not impressed with the argument that any fundamental right had been violated enabling Justice Katju to approach the Supreme Court. Perhaps, because, it is a ‘hard case’. In the contemporary times, Gopal Subramanium, who is appearing for Justice Markandey Katju is re-emerging as one of the strongest defenders of freedom of speech and expression and Constitutionalism. His arguments in Devidas Ramchandra Tuljapurkar case (decided May 14, 2015) have been vividly noticed by the Supreme Court:

93. There can be no two opinions that one can express his views freely about a historically respected personality showing his disagreement, dissent, criticism, non-acceptance or critical evaluation.

103. Mr. Subramanium would submit that the free speech is a guaranteed human right and it is in fact a transcendental right. The recognition of freedom of thought and expression cannot be pigeon-holed by a narrow tailored test. The principle pertaining to the freedom of speech has to be interpreted on an extremely broad canvas and under no circumstances, any historical personality can cause an impediment in the same. It is urged that the Constitution of India is an impersonalised document and poetry which encourages fearlessness of expression, cannot be restricted because of use of name of a  personality. Learned senior counsel has further submitted that freedom to offend is also a part of freedom of speech. Poetry, which is a great liberator, submits Mr. Subramanium, can be composed through a merely voice explaining plurality of thought. He would submit the instant poem is one where there is “transference of consciousness” that exposes the social  hypocrisy and it cannot be perceived with a conditioned mind.  

104. The principle that has been put forth by Mr. Subramanium can be broadly accepted, but we do not intend to express any opinion that freedom of speech gives liberty to offend. 

Amongst the various issues that emerge in Justice Katju’s, a few are of utmost importance. Most prominent amongst them is that of freedom of expression. It requires no reiteration that freedom of speech and expression is one the fundamental pillars on which any democracy, including ours, rests. Therefore, it should logically follow that a person has right to express his views fearlessly, without there being any threat of condemnation by any authority or being dissuaded by spectre of any form of repression by persons not in authority.

An individual may have reasons to disagree with Justice Katju’s view that Mahatma Gandhi injected religion into country’s blood stream; however, it does not follow that an institution such as the Parliament gets any right to ‘have an opinion’ to condemn Justice Katju (or any individual) merely for expressing his opinion. Condemnation by an individual is not the same condemnation by an institution. The Constitution does not contemplate that the Parliament would even take cognizance of expression of opinions by individuals who are not speaking in their official capacity. Where in the law making process, opinion of citizens has to be considered – there is a separate mechanism for the same. This is also supplemented by the Rules made by both the Houses. For instance, Rule 157 of the Rajya Sabha Rules of Procedure and Conduct of Business provides that a resolution “shall not refer to the conduct or character of persons except in their official or public capacity”. Clearly then, Justice Katju’s views could not have been subject matter of a resolution in the Rajya Sabha. The Parliament is obliged to secure freedom of speech and expression, and the limited restrictions that it can impose have to be ‘by law’ legislated by them, which has to be applied by executive if applicable, and individual’s liberty is to be safeguarded by the judiciary. That is the structure contemplated under the Constitution.  Separately on another issue, on the day when the case was first listed, one of the arguments that arose was whether, just like the Parliament as an institution – it would be legal of the judiciary  as an institution to take stand in respect of debated historical fact and then condemn an individual unheard. It was submitted that an institution taking notice of things outside its scope of functioning was unheard of.

Justice Katju’s view on Mahatma Gandhi and Netaji may or may not be correct. The fact remains that similar views have been taken by a number of academics. In the contemporary times, when there is serious affront to academic independence and academic freedom, the unanimous expression of condemnation without hearing the person to be condemned or properly considering the basis of his views, poses a great danger to academic freedom in the country. It sets a bad precedent to say the least.  The unanimous condemnation of Justice Katju by both houses of the Parliament does have an extreme chilling effect and is bound to result in noticeable restraint in expression of dissent and alternative views – which certainly is not in the nation’s interest. Such chilling effect is directly results in generation of unprecedented public opinion against an individual, in respect of which there is and cannot be any remedy in law. In my view, ‘academic freedom’ is not limited formal academics alone, but ought to be extended to every person who engages himself in scholarly pursuits. Incidentally, it may be mentioned that the South African Constitution, which draws much from our Constitution expressly recognizes the right to academic freedom.

Article 51-A (h) of the Constitution provides that “It shall be the duty of every citizen of India to develop scientific temper, humanism and the spirit of inquiry and reform;”. Development of scientific temper necessarily involves observation, analysing, questioning and hypothesising. Central to development of ‘scientific temper’ is the spirit of inquiry – which does not accept anything without testing and trial, and the freedom to differ from previous conclusions, without being penalised for the same. Passing of unanimous resolution by the Parliament, condemning Justice Katju’s view, which is symbolic of academic freedom and expression of dissent, seeks to suggest that Parliament does not seem to believe that inquiry and expression of any perspective other than the popular one is relatable to the freedoms guaranteed under the Constitution.   One must not forget that transition of India into a modern nation is a consequence of inculcation of ‘scientific temper’ by the likes of Sir Syed Ahmad Khan and Raja Ram Mohan Roy.

The fundamental right of a person can be said to have been violated when a person has been deprived of his right to freedom of speech and expression except in the manner provided in the Constitution, or has been treated arbitrarily, or his right to reputation has been prejudicially affected.  In Justice Katju’s case, the passing of the resolutions, in respect of which the Parliament lacked jurisdiction, is evidently without the authority of law and suffers from all three vices. Undeniably, the undercurrent of such resolutions is to ‘shame’ the person who has ventured to express his views, which do not resonate with the popular perspective.

An overarching issue that also arises is whether the Parliament can arrogate unto itself the power to adjudicate, and then to use for itself that power to adjudicate that expression of personal views on historical figures by Justice Katju (an individual) is worthy of unanimous condemnation, that too without affording him any opportunity to explain his case. It had long been settled by the Supreme Court, including that of Indira Gandhi v. Raj Narain (1975), that the Parliament could not perform adjudicatory functions.

Regular reliance to the Parliament’s plenary powers and its comparison with the Parliament of the United Kingdom is untenable. One must not lose sight of the fact that in the UK the Parliament is sovereign, but in India – it is the Constitution that reigns supreme.

In fact, academically, Justice Katju’s case is not a case about Justice Katju at all. It is a case that begs the Supreme Court to define the relationship between the Parliament as an institution and an individual citizen in the framework of the Constitution with reference to the cherished values of the freedom movement.  On a larger level, this case defines relationship between individual and the organs of the State, singularly or as a conglomerate. I am hopeful that values of the freedom movement as enshrined in the text and meaning of the Constitution would only be cemented by the Courts.

  

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Court Fees ≠ Fees for Accessing Justice System

By

Talha Abdul Rahman

Judicial systems contribute to maintaining peace in the society and the ease of access of a reliable judicial system reinforces faith in the rule of law. It is therefore a natural corollary of existence of a judicial system that the procedures and costs in accessing the remedy of approaching the courts have to be only nominal. Judicial system is entitled, as of right, to get funded from tax payers’ money and it is improper for judicial system to increase the costs of accessing the system in order to sustain itself. In short, a litigant is not to be seen as a person accessing “services” of the court and therefore, cannot be treated as “customer” who has to pay up.

On 19^th August, 2014, the Supreme Court of India has introduced a new set of rules called the Supreme Court Rules, 2013 replacing the old set of Rules framed in 1966. While the 2013 Rules do bring in a number of changes, it can be termed as a lost opportunity to hold a consultative process with lawyers as well as litigants to devise a better set of rules ensuring ease and equality of access to justice.  The Supreme Court Bar Association has challenged the 2013 Rules and had requested the Supreme Court to defer the implementation of the 2013 Rules. While the petition to challenge the 2013 Rule is pending adjudication, the request for deferral was declined.

Amongst others, the Supreme Court’s decision to enhance the court fees payable to access the courts and linking the same to the identity of the litigant and subject matter of the case does not seem to promote access to justice. To begin with, no explanation is available in public domain for substantially increasing the court fees, and unless a rational explanation is available for the same, it is difficult to justify the enhancement merely only speculation of increase in the cost of adjudication since 1966.

In any event, as suggested above, it is contrary to public policy to force a litigant to pay “court fees” as a fees to access the judicial system, especially when judicial system is, even under the Constitution, the residuary system of dispute resolution. The importance of civil justice system can be gauged from the following except from Dame Hazel Gen’s Hamlyn Law Lecture (2008):

The civil law maps out the boundaries of social and economic behaviour, while the civil courts resolve disputes when they arise. In this way, the civil courts publicly re-affirm norms and behavioural standards for private citizens, businesses and public bodies. Bargains between strangers are possible because rights and responsibilities are determined by a settled legal framework and are enforceable by the courts if promises are not kept. Under the rule of law, government is accountable for its actions and will be checked if it exceeds its powers. The courts are not the only vehicle for sending these messages, but they contribute quietly and significantly to social and economic well-being.

In fact, 14^th Law Commission of India chaired by Mr. M.C. Setalvad, India’s first attorney general has stated that:

India is, so far as we know, the only country under a modern system of government which deters a person who has been deprived of his property or whose legal rights have been infringed from seeking redress by imposing a tax on remedy he seeks. Our States provides hospitals which give free treatment to persons who are physically afflicted. But if a person is injured in the matter of his fundamental or other legal rights, we bar his approach to the Courts except on payment of a heavy fee.  The fee which we charge is so excessive that the civil litigant seeking to enforce his legal right pays not only the entire cost of the administration of civil justice but also the cost of incurred by the State in prosecuting and punishing criminals for crimes with which the civil litigants has no concern.

While the benefits of court system are reaped by the whole society, the burden of paying the court fees has been conveniently placed on a litigant. This placing of burden on a litigant, ought not to be abused either by the Government or by the Court itself. 

In fact, a civil litigant is also required to pay court fees to sustain the criminal justice system. It will, however, have to be examined separately as to the extent for which the State Governments defrays the expenditures linked to the system of adjudication of criminal and civil cases. The Law Commission had concluded that, “having regard to court fees alone and ignoring other items of expense, to an honest litigant trying to vindicate a just claim, the Court of justice would seem to wear a stern and even cruel frown instead of an inviting and friendly look.”[1]  It can be said that, albeit with a degree of caution, the conclusions of the 14^th Law Commission reached in 1964 continue to be true.

Unfortunately, the 2013 Rules do not make things any better. Increasingly ‘court fees’ are being viewed as quid pro quo for accessing a justice system – akin to an ordinary commercial service.

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[1] Pg 505.

Aurangzeb, Dara Shikoh and Misdirected Concerns

by Talha Abdul Rahman

In the past few days, we have come across a number of people, extra-ordinary and otherwise, expressing horror over the spectre of Narendra Modi being elected eventually to become the Prime Minister in 2014. Reasons for such profound expression of horror are dominantly on account of his ‘alleged’ involvement in proliferation of targeted killings of Muslims in 2002 Gujarat riots. Political agents, within the media and outside, have attempted to explain that the concern is actually misplaced because, since 2002, he has won over the confidence of Muslims which is evident from the fact that BJP has won even from Muslim dominated areas (as if elections in India are conclusive of people’s forgiveness), and in any event even the Muslims of Gujarat want to “move on”.

Perhaps, they do want to move on.  Not because they have forgiven Narendra Modi but because they have realized that most of them can no longer afford to sit back and 'crib' and must earn their living by starting from scratch. Perhaps, they have made peace with living in sub-human ghettos. Undeniably, litigating against the State (especially the Chief Minister) can be debilitating especially if one is financially, emotionally, socially and psychologically vulnerable. The merchant in Gujarati Muslims has possibly prevailed upon them to apply ‘economic rationality’ to rights and freedom under the Constitution. Perhaps, they have moved on.

While, the Muslims of Gujarat may have moved on, We as citizens of India should reconsider whether We can permit the rest of the India to move on. While Muslims may have a legitimate fear of persecution should Narendra Modi becomes the Prime Minister, a real possibility of similar persecution cannot be discounted even if any other political party comes to power. The analysis of political leaderships that prevailed at the Center and in the States in 1992 (Ayodhya) is itself sufficient to dislodge any misapprehensions about the professed ability of a government to provide physical security to the country’s minority. It is practically a “Hand-in-(Saffron) Glove” situation. In fact, some have even suggested that recent ‘regret’ of remarks on ‘Saffron’ Terror despite their correctness coupled with Afzal Guru’s hanging is a subtle attempt to send out a message that the Government is more saffronised than even the deepest shade of saffron.

By using the word “saffronized” here, I allude to an ideology and not to any religion. Therefore, the call actually is to reconsider whether We can allow a system of saffron principles that are incompatible with the Constitutional values to take charge.

Dr. Ambedkar in his speech in the Constituent Assembly on 4^th November, 1948 had cautioned us that:

“… it is perfectly possible to pervert the Constitution, without changing its form by merely changing the form of the administration and to make it inconsistent and opposed to the spirit of the Constitution. It follows that it is only where people are saturated with Constitutional morality such as the one described by Grote the historian that one can take the risk of omitting from the Constitution details of administration and leaving it for the Legislature to prescribe them. The question is, can we presume such a diffusion of Constitutional morality? Constitutional morality is not a natural sentiment. It has to be cultivated. We must realize that our people have yet to learn it.”

We certainly are yet to learn it.

While I do have reservations about a person accused of genocide occupying the highest executive chair in the country, what concerns me more is that the debate concerning Narendra Modi’s possible success (or failure) in 2014 election has been reduced to being a debate about Muslims. Narendra Modi has been projected as  a “Muslim problem”; which he is not.  He, as a face of an ideology, is as much a problem of a Muslim as he is of any other citizen. This is because the concerns that Muslims have raised today are tomorrow’s reality. We can, for convenience, call the fear of persecution amongst minority (and not just Muslims) as an “Early Warning Alarm”. This argument is best summarized in the words of  Martin Niemöller 

“First they came for the communists, 
and I didn't speak out because I wasn't a communist.

Then they came for the socialists, 
and I didn't speak out because I wasn't a socialist. 

Then they came for the trade unionists,
and I didn't speak out because I wasn't a trade unionist.

Then they came for me,

and there was no one left to speak for me."

The choice between Narendra Modi or any other person is being consciously  constructed in a manner that it would almost be deemed that only Muslims will not vote for Narendra Modi. Well, yes, even George Bush told the world that in his war on terror, “You’re either with us, or against us”. Thus, by implication, all non-Muslims are being obliged by the rhetoric that Narendra Modi is a ‘Muslim problem’ to vote for him and his ideology.

Consistently, the development scholars have argued that development is not to be measured by economic indices alone. Perhaps in the context of Gujarat and speculatively in the context of India, one could apply the test of “Freedom from” and “Freedoms of”. The question that then stares us is whether in India, where the Government is guided by fascist and saffronized ideology, would the people have, for instance true freedom of speech and expression, freedom from living in ghettos, freedom from not having a religious-identity-neutral name, freedom from being discriminated on the ground of religious identity, and the like.

Fortunately, unlike the 17^th Century India, today, we do have the legal right to choose between Aurangzeb and Dara Shikoh; misfortune, however is that we know that Narendra Modi is Aurangzeb* but India does not seem to have a Dara Shikoh we could vote for.

(*with sincere apologies to Aurangzeb for the comparison, who despite being intolerant to other religions was after all an honest man who survived only on the money he earned by making caps and writing calligraphy)

ADR in Triple Talaq: Rationalising Islamic Law of Divorce

“In post- 9/11 America, Culture Talk focuses on Islam and Muslims who presumably made culture only at the beginning of creation, as some extraordinary, prophetic act. After that, it seems Muslims just conformed to culture.”[1] Islam is persistently poised against modernity, and ‘modernity’ is defined from standpoint of western culture  whose beliefs are different from Islam. Western culture is not same as modernity, and as far as modernity is concerned all answers to questions raised by ‘modernist’ can be found within the fold of Islam. It is a sheer question of wanting to do justice without overstepping the precinct of judicial process.[2] “Elasticity of laws is the greatest test of their beneficence and usefulness” [3] and even though laid down over a millennium ago the law is capable of such interpretation that can suit the modern society as well. Islam has laid down laws, but unfortunately, as in other systems, people have abused the law. However, one must be cautious that it is not what people do that is Islam, but is what texts have to say.

While there are numerous issues in Islamic Law that have been debated in the context of modernity, discussion on triple talaq has gained relevance after the recent judgment delivered by the Bombay High Court in Dilshad Begum v. Ahmadkhan Hanifkhan Pathan[4]  wherein the court has reiterated that for divorce to be legal it must be preceded with honestly attempted arbitration or mediation proceedings.

In Islam, “Talaq is the most detestable before God of all permitted things”.[5] Prophet Mohammad looked upon the custom of divorce as a calculated to undermine the foundation of society. Intricate, inseparable connection between Islam, Shariat and Mohammad increases the bearing of this statement on interpretive application of divorce laws in Islam.

First of all, it should be known that there are three methods of divorcing by recitation of words, “I divorce thee”: Talaq-e-Ahsan[6], Talaq-e-Hasan[7], and Talaq-e-Biddat (or Triple Talaq), of which the first one is most preferred way of divorcing and the last one is the most abhorred. It is talaq-e-biddat or Triple Talaq that has always been a subject of consternation amongst Islamic scholar, lawyers and society.  

Talaq-e-biddat, where biddat means an unlawful innovation, is a divorce that consists of either making a pronouncement of divorce during the woman’s menstruation period or to pronounce two or three divorces at once or to issue a divorce in a Tuhr in which sexual intercourse with the wife took place. The traditional Hanafi law treats talaq-e-biddat, an improper talaq, as an action ‘bad in religion but good in law’. If a man divorces his wife by saying “I give you three divorces” or by saying: “I divorce you” three times, it is considered an unlawful act and an innovation. It is sinful to divorce irrevocably in this manner; nevertheless such it is valid and operative.[8]  

We have witnessed the zeal of the Indian Supreme Court in utilizing the provisions of Article 142 – the power to do complete justice, to dissolve marriage of parties that have been suffering in totaled marriages merely because there is no provision in law that could liberate them.[9] The recent decision of the Supreme Court in Naveen Kohli v. Neelu Kohlí[10], suggesting to the Parliament to provide for ‘irretrievable breakdown of marriage’ in statutory law demonstrates that it is no longer feasible for law to chain two irreconcilable persons.[11] When juxtaposed with these developments, Islamic law of divorce seems progressive in as much it permits both women and men to divorce their spouse without resorting to unnecessary long litigations in the Court[12]; “the true Islamic law in fact stood for what is now known as the ‘breakdown theory’ of divorce”[13].  Conceding that men have more power to alter legal relationship than women, and therefore there are provisions within the precincts of present law as laid down in the Holy Quran that do not permit arbitrary divorce.

However, as in the case of marriages covered under the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955 there is no ‘statutory’ provision in Islamic law that would mandate that alternative methods of dispute resolution must be honestly resorted to before divorce is granted.[14] Islamic Law also requires one last attempt to be made by the parties before marriage is dissolved by either of them, and the source of such law is located not in statutes but in the Quran. We have often been swayed by the media and do to even attempt a study of true spirit of Islam that is pervasive in its law. Justice Krishna Iyer has observed, “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. ...”[15].

According to the Holy Quran: “And if ye fear breach between them (man and wife), then send a judge chosen from his family and a judge chosen from her family if they desire reconciliation, God will cause them to agree; verily, God is knowing and apprised of all.”[16]

There is thus, a clear requirement in The Holy Quran to attempt to solve the matrimonial dispute by alternative methods, failing which divorce may be granted. “The Prophet restraint the power of divorce possessed by the husband; he gave to the women the right of obtaining a separation on reasonable grounds; and towards the end of his life he went so far as practically to forbid its exercise by the men without the intervention of arbiters or a judge.”[17]

Judicial approach in this decade has undergone a strategical change to accommodate dynamics of evolving jurisprudence in a system of law that is perceived to be static.  In Shah Bano era, attempts to ‘modernize’ Muslim personal laws, especially the laws affecting women’s right, have met with stiff resistance within the Muslim community primarily because it was seen as imposition of outside ‘assimilative’[18] rules on them. However, the present approach has changed, to find solutions within Islam relying on settled rules; courts in India it is politically wiser for the courts to not embark on finding the law in the holy texts through interpretative acrobatics. Judgments that do not go against the religion, which is opium for insecure masses, will have more legitimacy. Therefore, ideal situation would be to find ameliorative provisions within the religion instead of importing and imposing it. “Indian courts have proved a more hospitable forum for protecting and promoting women's rights than political branches or minority institutions”[19], because they have been able to develop strategies to.

Even though the practice of triple talaq has been abolished in many Islamic nations, it still prevails in India.[20] Since political organs have failed to discharge their obligation, duty now rests with the courts to set at naught the controversy that looms over triple talaq. Courts have at more than one occasion declared it to be illegal, if there was no arbitration or mediation proceeding conducted prior to declaration of divorce by the husband.

In  1981 Jiauddin Ahmed v. Anwara Begum[21], Baharul Islam, C.J., held that “In our opinion the correct law of ‘talaq’ as ordained by Holy Quran is: (i) that talaq must be for a reasonable cause; and (ii) that it must be preceded by an attempt at reconciliation between the husband and wife by two arbiters, one chosen by the wife from her family and the another by the husband from his. If their attempts fail, talaq may be effected….” The said ratio was re-affirmed in the same year in Rukia Khatun v. Abdul Khalique Laskar[22], and in 1993 in Zeenat Fatema Rashid v. Md. Iqbal Anwar[23]. These judgments have been approved by scholars as being reflective of the correct perspective of Islamic law.[24]

In 1998, the Madras High Court in Saleem Basha v. Mrs. Mumtaz Begam [25]  has taken the same view in this regard that a husband cannot divorce his wife on his whims and caprice, and it is imperative for a valid talaq that the parties must attempt to solve their dispute by alternative means.

In 2002, the Dagdu v. Rahimbi Dagdu[26]  the Bombay High Court has relying upon the decisions quoted above has held that the husband must prove that all conditions precedent including the condition of holding arbitration or mediation have been fulfilled before the courts would give recognition to such divorce.[27] This decision has been approved very recently by the Bombay High Court in Dilshad Begum v. Ahmadkhan Hanifkhan Pathan[28].

In 2004, the Allahabad High Court, speaking through Justice I.M. Quddusi has taken a similar view in Sadiqunnisa v. State of U.P.[29].

These cases reflect that judicial response to abuse of law is more vibrant that political responses from the legislators. These judicial opinions together have lit a new torch that seeks to pull out Muslim Personal law from the deep abyss of darkness and ignorance. The beauty of these decisions is that unlike in Shah Bano, judges here have not embarked upon interpretation of the Holy Quran, which is clearly not their domain. Judicial process of deciding cases on Muslim Personal Law has graduated to a new dimension where reforms are being located within the four corners of Islamic Law. It is submitted that the ratio decidendi of Dilshad Begum case delivered by the Bombay High Court and of several other cases cited above are here to stay.

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[1] Mamdani, Mahmood (2005), “Good Muslim, Bad Muslim: Islam, the USA and the Global War Against Terror”, Permanent Black, New Delhi, p.18.

[2] Noorani, A.G. (1998), “Shah Bano: Bangladesh Shows the Way”, in Shah Bano and the Muslim Women's Act A Decade on: The Right of Divorced Muslim Women to Mataa, Readers and Compilations Series 25-26, Women Living Under Muslim Law, Readers and Compilations Series, 1998, noting that the High court Division in Bangladesh has interpreted Aiyats 2:240-242 of Quran to gold that a divorced women has the right to receive a reasonable sum for maintenance for an indefinite period beyond iddat. The same conclusion when reached by the Indian Supreme Court in Shah Bano Case had met with great opposition from Muslims.

[3] Ameer Ali (1923), “The Spirit of Islam”, Low Price Publications, Delhi, p.230.

[4] MANU/MH/0014/2007.

[5] Supra N.3, p.244. Unequivocally declaring divorce is abghad-ul-mubahat – “worst of all permitted things”.

[6] Talaq-e-Ahsan (most preferred) divorce is to make one pronouncement of divorce to the wife, in an interval between menstruations (Tuhr), in which no sexual intercourse with the wife has taken place. After which she is left until her waiting period (Iddah) is over.

[7] The Ahsan (preferred) divorce is to pronounce three divorces in three separate intervals of Tuhr, in which no sexual intercourse with the wife has taken place.

[8] This is based on the analogy drawn from Zihar, which is divorce by equating one’s wife with women in ‘prohibited degrees’. Zihar has been condemned in the Holy Quran as “evil and false”, yet such a divorce is valid. (The Holy Quran, 58: 1-5).

[9] Ashok Hurra v. Rupa Bipin Zaveri, (1997) 7 SCC 565.

[10] AIR 2006 SC 1675.

[11] See Himanshu Raman Singh (2007), Irretrievable Breakdown of Marriage: Expanding Contours of Divorce Law, THE EDICT (1) I  21 (January, 2007).

[12] Mahmood, Tahir (Tr.) (2002), “Compendium of Islamic Law”, The All India Muslim Personal Law Board, New Delhi, p.87, “… it is also true that if there is no temperamental compatibility between the parties, or the man feels that he cannot as husband fulfill the woman’s rights, or because of mutual difference of nature Gods limits cannot be maintained, keeping the marriage intact in such situations or to compel the parties by legal restrictions to continue in the marital bond may be more harmful for the society. The Shariat, therefore, regards divorce as permissible although it is an undesirable act.”

[13] Tahir Mahmood (2003), “The Muslim Law of India”, Butterworth, Mumbai, p.88.

[14] The Family Courts, Act, 1984, Section 9.

[15] Yusuf v. Sowramma, AIR 1971 Ker. 261, para. 7.

[16] The Holy Quran, 4:35.

[17] Supra N.3, Delhi, p.244.

[18] Pratibha Jain (2005), Balancing Minority Rights and Gender Justice: The Impact of Protecting Multiculturalism on Women’s Right in India, 23 Berkeley J. Int’l L. 201, 208.

[19] Id., 218.

[20] See Talha A. Rahman (2006), Codification of Islamic Law of Marriage: To be or not to be, THE EDICT (3) III 32 [April 2006].

[21] (1981) 1 GLR 358, para. 11.

[22] (1981) 1 G.L.R. 375.

[23] 1993 (2) Crimes 853, para. 5.

[24] Supra N.13, p.109.

[25] 1998 CriLJ 4782 (Mad.)

[26] II (2002) DMC 315.

[27] Id., para. 32.

[28] MANU/MH/0014/2007.

[29] Criminal Revision No. 327/2002 decided on 02.08.2004.

Codification of Islamic Law of Marriage: Policy and Politics

The rights of Muslim women under Islamic law relating to marriage, divorce, maintenance, and succession have been fiercely scrutinized on several occasions, but a consensus could not be reached probably because of a mental blockage, a defensive approach to problem-solving resulting from severe media criticism, and a feeling of insecurity amongst Muslims. An undercurrent of contempt and the ‘Otherness’ flows amongst Muslims today. This may be one of the several reasons for the vehement opposition to a uniform civil code.

The constitutional feasibility of a uniform civil code is primarily a function of its content and substance; but most debates on uniform civil code have ignored this substantive aspect and have focused more on political feasibility. It must be noted that a uniform civil code would not ipso facto guarantee rights and equality to women. Much would depend on the content of the code. If the objectives of such content could be achieved by means otherwise than enactment of a uniform civil code, then the politico-legal debate on Fundamental Rights versus Directive Principles of State Policy could be avoided. Any such debate is more likely to derail any attempt to pragmatically secure rights for Muslim women.

Solutions to controversial issues are possible within the precincts of Islam. There is no reason for unnecessarily insisting on a political hot-pot of uniform civil code. Preemptively, it must be clarified that the ‘Islamic personal law’ is not synonymous with the ‘Muslim personal law’. They may appear to be semantically related and are used interchangeably, but in reality they connote different meanings.  While the ‘Muslim law’ finds it source in the practice of Muslims, the source of Islamic law is the Holy Quran, the Hadith, Ijma and Qiyas. It is not what Muslims do, but what these sources say that constitutes Islamic personal law. Succinctly, Islamic personal law is distilled form of Muslim personal law, i.e. purified of vices gained by decades of influence from contiguous local cultures and digression from the true path.  Since, Muslims seek to be governed by Islam, the system of law applicable to them would be one that emanates from Islam and not from deviant practices of contemporary fellow Muslims. There may be a fair degree of correspondence between the two, but they are not the same.

A close reading of religious text in context would reveal that Islam believes and promotes equality in marriage, equity in relationships, and proscribes polygamy. However, Islam is rarely followed in true spirit, and is frequently abused by patriarchs. Having no statute or positive law, there is no hard basis for women to approach the courts for enforcement of such rights. Using Henry Shue’s concept of positive and negative rights, the conferral of equal rights on women by the Islamic personal law, in absence of a positive legal basis to approach a judicial or a quasi-judicial body for their enforcement, becomes infructuous. There is, thus, a need to codify the true Islamic law.

While the active role played by the judiciary may be desirable in other areas of law, it is certainly not desirable in the area of uncodified personal laws. It could lead to unnecessary politicization. At a preliminary stage, the competence of judges and their locus standi to interpret and to apply religious text could be disputed by proletariat. This happened in the Shah Bano case ((1985) 2 SCC 556) where interpretation of the Quran by the Supreme Court lead to nation-wide violence. Even if we assume that the judges may interpret the divine text to further the ends of justice, such an attempt will not be of a great help because judicial decisions by their very nature are merely curative, and not preventive. They are volatile and reflective of judge’s predilection; sometimes described as ex post facto rationalization of a choice.

Given the demographical, political, and social setup of this country, legislation as a means to grant locus standi and competency to the courts for enforcing the rights conferred by God would be more efficacious. The objective of such legislation would be to codify by consolidating (though not exhaustively, for pragmatic reasons) the rights that Muslim women have under the true Islamic personal law, and not to create any new right.  Such consolidation of rights would include right against concurrent marriages by their husbands, right to obtain divorce more fairly, right against arbitrary divorce, right to maintenance during the continuation of marriage, et al. A perusal of Islamic legal text would make it clear that these rights are recognized in existing Islamic law; the only thing that the legislation would seek to do is to place them in black letters to provide ‘hard basis’ for its enforcement.

The Supreme Court has settled maintenance issue in Danial Latifi case (((2001) 7 SCC 740) by holding that fair and reasonable maintenance must be provided to all divorced Muslim women. Now, issues of triple talaaq and that of polygamy remain alive as contentious ones.  According to the Islamic religious texts, divorce, even though lawful, is despised by Allah and the Prophet (pbuh). Divorce is permissible as a measure of last resort when alternative methods of dispute resolutions have failed. This being the case, there is a basis within the limits of Islamic jurisprudence to restrict the right to exercise the option of divorce. Some countries have taken this as a starting point and have enacted laws to safeguard women from arbitrary divorce. Section 30 of the Tunisian Law of Personal Status 1957 provides: ‘Divorce outside a court of law is without legal effect’. This legislation also provides that the court must dissolve the marriage if the husband persists in his repudiation, and that the court has power to grant unlimited compensation to the wife for any damage that she might have suffered because of such divorce. Section 7 of The Pakistan Muslim Family Laws Ordinance, 1961 lays down that a divorcing husband shall send notice of divorce to the union council and supply a copy of it to the divorcee wife, after which the arbitration council would try for reconciliation between the two parties. Divorce is activated only when reconciliation efforts have failed and three months from the date of divorce have lapsed.

Such an approach, requiring exhaustion of alternative dispute methods before granting a divorce, has been judicially recognized by the Allahabad High Court. In Sadqunnisa v. State of U.P. (Criminal Revision No. 327 of 2002, order dated 02.08.04), Justice Quddusi of Allahabad High Court sitting at Lucknow, held that only those divorces which are in accordance with law shall be recognized as valid and operative in the eyes of law. The Court further said that the talaaq as ordained in the Holy Qur’an “must be pronounced in three different sittings, it must be for a reasonable cause and must be preceded by an attempt of reconciliation between the husband and the wife by two arbiters, one chosen by the wife’s family and the other by the husband and if their attempts fail then the talaaq might be effected and has to be proved by the husband before the court.” There is no reported political fallout of this decision. Having such a precedent in law, the same must be legislatively provided for.

With respect to polygamy, as has been observed earlier, the Quran does not permit polygamy. As a pre-condition for subsequent concurrent marriage, the Quran requires that the man should treat both his wives equally in all matters. It is not humanly possible for a man to treat two women equally, and so polygamy is implicitly proscribed (The Quran, 4:3 read with 4:129).  Incorporation of the Quranic requirement of absolute equal treatment would implicitly make monogamy the rule. Thus, the general right of protection from polygamous marriages as embedded in Islam can be legislatively provided for. In jurisprudential terms, a legislation that proscribes polygamy statutorily amongst Muslims by imposing such precondition would be merely providing a hard basis in law to enforce such a right and would not amount to creation of a new right. The Tunisian Law of Personal Status, 1957 prohibits polygamy, while the Syrian Law of Personal Status, 1953 places a precondition of obtaining permission before solemnizing the next concurrent marriage, and requires its registration as well. Section 6 of The Pakistan Muslim Family Laws Ordinance, 1961 lays down that no married man shall contract a second marriage without the permission from the arbitration council which shall ensure that the man had good grounds for second marriage and had obtained his first wife's permission to do so. These examples establish that there are precedents in other countries that could be emulated by India. In as much as the objective of the legislation would be to safeguard the rights of Muslim women, registration of marriages may also be provided for. While it is desirable to codify the law of marriage amongst Muslims, as a pragmatic approach there is no need to codify procedural matters and they should be expressly left to be governed by their respective schools.

Existence of irreconcilable differences between Shia and Sunni laws of marriages is a big hurdle for a consolidated code on Muslim marriage. For instance, Muta’h marriages (temporary marriages) are permissible under the Shia law but not under the Sunni law.  It is argued that on grounds of public policy there is a clear case to prohibit temporary marriages. However, any such attempt to do away with it would mean inviting political troubles which would eventually lead to an impasse in the whole process.  In such a case, either the law should be silent on this or should expressly say that Muslim marriage is a civil contract. In the event of it being silent, a provision similar to the Section 4 of the Hindu Marriage Act, 1955 may be provided for which would save custom on matters on which the legislation is silent. In the event of it mentioning that Muslim marriage is a civil contract, it would do no harm, as under the Islamic law it is a contract; at the same time it would also not lead to the express recognition of muta’h marriages. Once declared that it is a civil contract, the general principles of contract nullifying the contracts that are opposed to public policy may be invoked by the courts relying on Hadith and other sources. In any case, Muta’h marriages, even though allowed in law, have withered away in practice. It can be reasonably expected that such marriages would further lose their significance in future. To let go of an opportunity to legislate on Islamic law of marriage to attain larger objectives for an obsolete and out of practice provision of law would be nothing short of foolishness. This example also emphasizes on the point that an exhaustive code on Muslim marriage is unwarranted at this juncture, what is required is merely a starting point for judicial enforcement of religiously recognized rights and principles.

Certainly, there is going to be politics around the issue, as the boundaries of law and politics are not clearly defined. Since, the basis for law is jurisprudence and not politics, once the Parliament has a jurisprudential basis to proceed, interference from politicians should not preclude the Parliament from legislating on it. In fact, if possible, the means of politics should be deployed to achieve the jurisprudential end. One must keep in mind that the politics of religion, even at the time when Pakistan was being demanded, was circumvented by dedicated jurists who wanted to provide Muslim women with a hard basis to exercise their rights. In 1930s, Asif Ali Fyzee and Maulana Ashraf Ali Thanavi had spearheaded the campaign to recognize the right of Muslim women’s to approach a civil court for divorce. This campaign resulted in the enactment of The Dissolution of Muslim Marriages Act, 1939, which provided a legal basis for Muslim women to exercise their right. Extensive assistance must be sought from Muslim scholars in drafting the suggested statute to avoid political friction and confrontation on the floor of the house, and outside. To achieve the ends of social reform, one needs to act like Machiavelli’s Prince, combining the values of a lion and of a fox.

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