Zeal and poor scholarship

The cure to the malaise is not the imposition of a hated uniform civil code but a strong agitation for respect for the sharia and rejection of the Anglo-Muhammadan law.

Prayers on the occassion of Eid-ul-Fitr at an idgah on the outskirts of Jaipur on July 18.

THE Supreme Court’s judgments reflect zeal and poor scholarship, coupled with a profound indifference to the clear intention of the framers of the Constitution. It is a sorry record of 30 years.

1. It all began with Chief Justice Y.V. Chandrachud’s gratuitous obiter in the famous Shah Bano case, decided on April 23, 1985. ( Mohammed Ahmed Khan vs Shah Bano Begum (1985) 2 Supreme Court Cases 556.) At issue was the interpretation of Section 125 of the Criminal Procedure Code, 1973, which provides for a summary remedy to a destitute wife, even if divorced, to seek maintenance from the husband by approaching a magistrate rather than a civil court. Unfortunately, while the Cr.PC was on the anvil, Sheikh Abdullah led a delegation of some Muslim “leaders” to Prime Minister Indira Gandhi on August 17, 1973, to secure exemption for Muslim law from the ambit of Section 125. She agreed.

Ram Niwas Mirdha, Minister of State for Home Affairs, told the Rajya Sabha on December 18, 1973, that “we would not like to interfere with the customary rights of the Muslims through the Criminal Procedure Code”. Hence, Section 127(3)(b), which says, when such an order has been made the magistrate shall, if satisfied that the wife “has been divorced by her husband and that she has received … the whole of the sum which, under any customary or personal law applicable to the parties was payable on such divorce, cancel such order”.

A ruling that misses this very obvious reference to the payment of maher (dower) on divorce under Muslim law raises doubt on its correctness. It is well known that maher is of two kinds, prompt, payable immediately, and deferred, payable on dissolution of the marriage.

Now sample the court’s tortuous reasoning: “Divorce maybe a convenient or identifiable point of time at which the deferred amount has to be paid by the husband to the wife. But, the payment of the amount is not occasioned by the divorce, which is what is meant by the expression ‘on divorce’, which occurs in Section 127(3)(b) of the Code.”

The word “occasioned” is the court’s gratuitous addition. The code says simply “payable on such divorce”. Even if divorce is a mere “convenient or identifiable point of time at which the deferred amount has to be paid by the husband”, it is still “payable on divorce”.

Justice Chandrachud’s judgment was marred by a snide and offensive reference to Prophet Mohammad and a quotation from, of all the books, Edward Lane’s Selections from the Kuran , written in 1843 in the high noon of Western denigration of Eastern religions, which alleged that “the fatal point in Islam is the degradation of woman”. An English judge once told a lawyer that it was perfectly possible to defend a pickpocket without making a severe onslaught on the British Constitution. Judges should bear that in mind before they deliver long obiter in flowery language. What led Justice Chandrachud to denigrate Islam and its founder with such utter irrelevance and bad taste is a matter for thought. He is unlikely to have spoken thus of any other faith.

There followed this obiter: “It is also a matter of regret that Article 44 of our Constitution has remained a dead letter. It provides that ‘[t]he state shall endeavour to secure for the citizens a uniform civil code throughout the territory of India’. There is no evidence of any official activity for framing a common civil code for the country. A belief seems to have gained ground that it is for the Muslim community to take a lead in the matter of reforms of their personal law. A common civil code will help the cause of national integration by removing disparate loyalties to laws which have conflicting ideologies. No community is likely to bell the cat by making gratuitous concessions on this issue. It is the state which is charged with the duty of securing a uniform civil code for the citizens of the country and, unquestionably, it has the legislative competence to do so. A counsel in the case whispered, somewhat audibly, that legislative competence is one thing, the political courage to use that competence is quite another. We understand the difficulties involved in bringing persons of different faiths and persuasions on a common platform. But, a beginning has to be made if the Constitution is to have any meaning. Inevitably, the role of the reformer has to be assumed by the courts because it is beyond the endurance of sensitive minds to allow injustice to be suffered when it is so palpable. But piecemeal attempts of courts to bridge the gap between personal laws cannot take the place of a common civil code.” Zeal is the antithesis of judicial detachment. One of the judges, Justice O. Chinnappa Reddy, went out of his way to exclaim in a later case: “We fail to understand the hullabaloo about the recent Shah Bano case.” That failure to understand is pathetic. Note, Justice Chandrachud wanted the imposition of the code.

2. Maharshi Avadesh vs Union of India (1994) 1 Supp. SCC 713 , decided on April 6, 1993. Justices K. Jayachander Reddy and G.N. Ray dismissed a petition for a writ to the government to consider a uniform civil code and related reliefs. “These are all matters for the legislature. The court cannot legislate in these matters.” Evidently, the Maharshi’s heart bled profusely for “the dignity and rights of Muslim women”.

3. In Sarla Mudgal vs Union of India (1995) 3 SCC 635 Justice Kuldip Singh took it upon himself to pick up the thread that Justice Chandrachud had spun in 1985. It was a simple case of a fraudulent conversion to Islam to acquire a second wife, but he began by quoting Article 44, went on to discuss the facts and the law that bore on the case, and ended up by the famous quote of Justice Chandrachud to say: “The successive governments till date have been wholly remiss in their duty of implementing the constitutional mandate under Article 44 of the Constitution of India.

“We, therefore, request the Government of India through the Prime Minister of the country to have a fresh look at Article 44 of the Constitution of India and endeavour to secure for the citizens a uniform civil code throughout the territory of India.

“We further direct the Government of India through Secretary, Ministry of Law and Justice to file an affidavit of a responsible officer in this court in August 1996 indicating therein the steps taken and efforts made, by the Government of India, towards securing a ‘uniform civil code’ for the citizens of India. Sahai, J. in his short and crisp supporting opinion has suggested some of the measures which can be undertaken by the government in this respect.

“Answering the questions posed by us in the beginning of the judgment, we hold that the second marriage of a Hindu husband after conversion to Islam, without having his first marriage dissolved under law, would be invalid.” The question arises—why the request to the Prime Minister personally?

However, Justice R.M. Sahai expressed his reservations and clearly endorsed G.S. Pathak and Professor Anderson’s views on religion and the law. “Marriage, inheritance, divorce, conversion are as much religious in nature and content as any other belief or faith . Going round the fire seven rounds or giving consent before Qazi are as much matter of faith and conscience as the worship itself. When a Hindu becomes a convert by reciting Kalma or a Muslim becomes Hindu by reciting certain mantras it is a matter of belief and conscience. Some of these practices observed by members of one religion may appear to be excessive and even violative of human rights to members of another. But these are matters of faith. Reason and logic have little role to play. The sentiments and emotions have to be cooled and tempered by sincere effort. But today there is no Raja Ram Mohan Rai who single-handedly brought about that atmosphere which paved the way for Sati abolition. Nor is a statesman of the stature of Pt. Nehru who could pilot through, successfully, the Hindu Succession Act and Hindu Marriage Act, revolutionising the customary Hindu law. The desirability of uniform code can hardly be doubted. But it can concretise only when social climate is properly built up by elite of the society, statesmen amongst leaders who instead of gaining personal mileage rise above and awaken the masses to accept the change.”

H.M. Seervai, India’s foremost constitutional lawyer in his day, censured Justice Kuldip Singh in an article in The Times of India (July 5, 1995): “Justice Kuldip Singh, however, gratuitously raised the question of a common civil code on the specious ground that the absence of such a code induced Hindu husbands to convert to Islam so that they could marry one or more wives although their wives were alive and had not been divorced, because Mohamedan law permitted a Muslim to marry four wives at a time. He further held that a common civil code did not violate the freedom of religion guaranteed by Articles 25, 26 and 27 of our Constitution. On this point, Justice Sahai dissented and referred to Supreme Court decisions which had held that religion was not merely a matter of faith and belief, but included rituals, ceremonies and prayers in temples, mosques, churches, etc. Justice Kuldip Singh praised Justice Sahai’s ‘concurring’ judgment. But on the question of whether a common civil code would violate freedom of religion, Justice Sahai did not concur. Both judges inadvertently overlooked Article 145(5) which provides that no judgment shall be delivered in the Supreme Court except with the concurrence of a majority of judges hearing the case. Since the two judges differed as aforesaid, they could deliver no judgment at all on the point whether a common code did or did not violate the freedom of religion.”

4. Pannalal Bansilal Pitti vs State of A.P. & Anr. (1996) 2 SCC 498 . Justice K. Ramaswamy said: “The first question is whether it is necessary that the legislature should make law uniformly applicable to all religious or charitable or public institutions and endowments established or maintained by people professing all religions. In a pluralist society like India in which people have faith in their respective religions, beliefs or tenets propounded by different religions or their offshoots, the founding fathers, while making the Constitution, were confronted with problems to unify and integrate people of India professing different religious faiths, born in different castes, sex or sub-sections in the society speaking different languages and dialects in different regions and provided a secular Constitution to integrate all sections of the society as a united Bharat. The Directive Principles of the Constitution themselves visualise diversity and attempt to foster uniformity among people of different faiths. A uniform law, though highly desirable, enactment thereof in one go perhaps may be counter-productive to unity and integrity of the nation. In a democracy governed by rule of law, gradual progressive change and order should be brought about. Making law for amendment to a law is a slow process and the legislature attempts to remedy where the need is felt most acute. It would, therefore, be inexpedient and incorrect to think that all laws have to be made uniformly applicable to all people in one go. The mischief or defect which is most acute can be remedied by process of law at stages.”

5. Ahmedabad Women Action Group & ors. vs Union of India (1997) 3 SCC 573 . Speaking for a three-judge bench, Justice Venkatsami referred to Sarla Mudgal’s case and earlier rulings. He said: “None of the decisions referred to above were placed before the Division Bench as they find no mention in the separate judgments of Kuldip Singh, J. and R.M. Sahai. That is because there was no occasion to consider whether Part III of the Constitution of India had any application to the personal laws or not. Suffice it to say that we are satisfied that the arguments advanced before us as pointed out at the outset involve issues, in our opinion, to be dealt with by the legislature. We may further point out that the question regarding the desirability of enacting a uniform civil code did not directly arise in that case.” He referred to Justice Sahai’s clear dissent and said that “the observations on the desirability of enacting the uniform civil code were incidentally made”.

6. In Lily Thomas vs. Union of India (2006) 6 SCC 224 the court cited those cases and said: “[W]e deem it proper to reiterate that this court had not issued any directions for the codification of a common civil code and the judges constituting the different benches had only expressed their views in the facts and circumstances of those cases.”

7. John Vallamattom & Anr vs Union of India (2003) 6 SCC 611 . Chief Justice V.N. Khare cited Sarla Mudgal’s case very briefly without any reference to the judges’ disagreement and without any reference to any of the later judgments, to express regret at the absence of the code and delivered this ipse dixit : “A common civil code will help the cause of national integration removing the contradictions based on ideologies.” The sweep is breathtaking. How will any ideological “contradictions” be wiped out by a uniform civil code? Which ideologies had he in mind?

Against this background came the question by Justices Vikramajit Sen and Shiva Kirti Singh on October 12, 2015, asking the Solicitor-General whether the government was willing to bring in the uniform civil code. The answer was sought in three weeks’ time.

8. Javed vs State of Haryana (2003) 8 SCC involved a panchayati raj law disqualifying a person having more than two living children from holding specified offices in the panchayat. The law was upheld but not before the court made obiter remarks on—you have guessed it—Muslim law. Cow slaughter was not neglected, either.

9. On October 16, 2015, another bench of the Supreme Court comprising Justices Anil R. Dave and Adarsh Kumar Goel suo motu ordered the registration of a public interest litigation petition and asked the Chief Justice to set up a Special Bench to consider gender discrimination suffered by Muslim women owing to “arbitrary divorce and second marriage of their husbands during the currency of their first marriage”. Why not urge reform of the law rather than a uniform civil code? They issued notices to the Attorney-General and the National Legal Services Authority of India to reply, on November 23, whether “gender discrimination” suffered by Muslim women should not be considered a violation of the fundamental rights under Articles 14, 15 and 21 of the Constitution and international covenants.

Justice Goel mentioned that the decision to “consider” the rights of Muslim women came up during discussions with lawyers on gender discrimination at the hearing of a batch of civil appeals on the issue of a daughter’s right to equal shares in ancestral property under the Hindu succession law. “An important issue of gender discrimination which, though not directly involved in this appeal, has been raised by some of the learned counsel for the parties which concerns rights to Muslim women. Discussions on gender discrimination led to this issue also. It was pointed out that in spite of guarantee of the Constitution, Muslim women are subjected to discrimination. There is no safeguard against arbitrary divorce and second marriage by her husband during the currency of the first marriage, resulting in denial of dignity and security to her,” the judgment recorded. (Krishnadas Rajagopal; The Hindu , October 25, 2015.) They have requested Chief Justice H.L. Dattu to constitute a larger bench.

against Islamic injunctions

It is sad that in none of nine cases did the Court refer to Justice V.R. Krishna Iyer’s observations in the Kerala High Court, before his elevation to the Supreme Court, on the opinions of Muslim jurists on the un-Islamic triple divorce and on polygamy, the two perverse modifications of Islamic law protected by some bogus ulemas, devoid of learning and integrity.

The husband’s right of divorce is subject to the limitations laid down in the Quranic Verse IV: 35. “This shows that the husband cannot repudiate the marriage at will. The case must first be referred to two judges and their decision is binding.” Justice Krishna Iyer held that the Prophet viewed marriage as a permanent union and divorce only as a last resort. In A. Yousuf Rawther vs Sowramma, AIR 1971 Kerala 261 , he held: “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 … It is a popular fallacy that a Muslim male enjoys, under the Quranic law, unbridled authority to liquidate the marriage. The whole Quran expressly forbids a man to seek pretexts for divorcing his wife so long as she remains faithful and obedient to him, ‘if they [namely women] obey you, then do not seek a way against them.’ … Commentators on the Quran have rightly observed—and this tallies with the law now administered in some Muslim countries like Iraq—that the husband must satisfy the court about the reasons for divorce.”

In Sarabai vs Rabiabai (1905) ILR 30 Bombay 53, Justice Batchelor observed that a divorce without any cause is “good in law, though bad in theology”. In 1978, in Jiauddin Ahmed vs Anwara Begum , Justice Baharul Islam of Gauhati High Court said: “In my view the correct law of talaq as ordained by the Holy Quran is that talaq must be for a reasonable cause and be preceded by attempts at reconciliation between the husband and the wife by two arbiters—one from the wife’s family the other from the husband’s. If the attempts fail, talaq may be effected.”

In Mst. Rukia Khatun vs Abdul Khaliq Laskar , quoting Quranic Verse IV: 35, the court held: “From the verse quoted above it appears that there is a condition precedent which must be complied with before the talaq is effected. The condition precedent is that when the relationship between the husband and the wife is strained and the husband intends to give talaq to his wife he must choose an arbiter from his side and the wife an arbiter from her side, and the arbiters must attempt at reconciliation, with a time gap, so that the passions of the parties may cool down and reconciliation may be possible. If ultimately reconciliation is not possible, the husband will be entitled to give talaq. The talaq must be for good cause and must not be at the mere desire, sweet will, whim and caprice of the husband. It must not be secret.” ( Sharia Law and Society by Alamgir Muhammad Serajuddin; Asiatic Society of Bangladesh, 1999; page 193.)

As for polygamy, it is significant that the Quranic verses on the subject occur in the clear context of protection of orphans. Verse 2 in Chapter IV on women embodies respect for the property of orphans. The next verse reads thus: “And if you fear that you cannot do justice to orphans, marry such women as seem good to you, two or three or four, but if you fear that you will not do justice then [marry] only one or that which your right hand possesses. This is more proper that you may not do injustice.”

This is not an injunction to marry more than one wife and is not even a permission to do so freely, for, another verse in the same chapter says categorically: “and you cannot do justice between wives and though you wish [it]” (4:129). This rules out polygamy.

All this has been ignored in the zealous drive for a uniform civil code. Justices Dave and Goel took a wrong step. If Chief Justice Dattu was to set up a bench to consider the constitutional validity of Muslim Personal Law on those crucial points, he will be taking a step fraught with grave and incalculable consequences.

Larger bench?

Incidentally, when will the Supreme Court set up a large bench to consider its conflicting rulings on Hindutva?

It may be recalled that on April 16, 1996, a three-member bench of the court referred to a larger bench of five judges a shocking judgment by Justice J.S. Verma for a three-member bench on election law holding that Hindutva was a “way of life … not to be equated with or understood as religious Hindu fundamentalism” ( Dr Ramesh Prabhoo vs Prabhakar K. Kunte [1996] 1 SCC 130 and 169). It was contrary to a ruling on July 14, 1995, (1995) 5 SCC 123. Hence, the reference to a larger bench ( Abhinav Singh vs C.D. Commander & Ors. (1996) 3 SCC 665 ). Nearly two decades have gone by. The larger bench has yet not been constituted. Five elections to the Lok Sabha and any number to State Assemblies have been held since, with the Bharatiya Janata Party (BJP) espousing Hindutva in its election campaigns with the Shiv Sena in tow.

Interestingly, the court’s reference to a larger bench on October 16, 2015, was highly publicised by many dailies on October 27. Its ruling is wrong. A larger bench of five judges has already held that the provisions of the Muslim Women (Protection of Rights on Divorce) Act 1986—and, therefore, at once remove Muslim Personal Law on divorce—“do not offend Articles 14, 15 and 21 of the Constitution of India”. This issue was specifically raised in that case while challenging the constitutional validity of the Act, though unsuccessfully. Danial Latifi & Anr vs Union of India (2001) 7 SCC 740 at p. 166.

What we have today is Anglo-Muhammadan Law as perverted by the Privy Council sitting in London. Dismissing “the opinions of that learned Mohamedan lawyer” (Justice Ameer Ali) as well as of another great judge, Justice Mahmood, the Privy Council ruled over a century ago that it would not consult the “ancient texts, however, authoritative, when the ancient doctors of the law have not themselves drawn those conclusions ( Baker Ali Khan vs Anjuman Ara Begum (1903) Indian Appeals 94 at page 111). It was a poor excuse for lack of scholarship.

This is why, supporting Dr Sir Hari Singh Gour’s resolution for the establishment of a Federal Court, M.A. Jinnah told the Central Assembly on February 17, 1925, that “the Privy Council have on several occasions absolutely murdered Hindu law and slaughtered Muhammadan law”.

The Supreme Courts of India and Pakistan rejected the Privy Council’s view and consulted the Quran and the recognised works. Yet, the Anglo-Muhammadan Law still obsesses ardent reformists and attracts reactionaries. Justice Krishna Iyer departed from this line and found Islamic law liberal. The cure to the malaise is not the imposition of a hated uniform civil code but a strong agitation for respect for the sharia and rejection of the Anglo-Muhammadan law.