“The Supreme Court cannot test the validity of Muslim law on the touchstone of fundamental rights guaranteed by the Constitution since it is not a State-made law.”

This is what former Chief Justice Aziz Ahmadi’s lawyer-son Huzefa Ahmadi has reportedly told the Supreme Court the other day. The constitutional tenability of his contention is to be examined in its proper perspective.

In October 2015 a Supreme Court Bench was hearing arguments in the case of Prakash v Phulwati, in which gender discrimination under the Hindu Succession Act 1956 had been challenged for its constitutional validity.

As the lawyer opposing the challenge argued that similar discriminations under Muslim law had been allowed by the courts to stay, the Bench directed that a public interest litigation be registered suo motu for the consideration of that matter by an appropriate bench to be constituted by the Chief Justice.

In a bid to preempt any further proceeding in the matter, the Maharashtra unit of the Jamiat-ul-Ulama has now filed an intervention application in the court arguing that non-statutory Muslim law is outside the ambit of fundamental rights. Huzefa made the contention referred to above as the petitioner’s lawyer.

Erroneous contention

In Part III of the Constitution, guaranteeing fundamental rights, Article 13 says that any past or future law made by the State, as also any custom and usage, going against its provisions would be void.

As it does not specifically mention personal laws, there has been a controversy whether this prefatory declaration in Part III covers also the personal laws [which are claimed to be something different from custom and usage]. All religious communities in India are governed by their respective personal laws which, with the sole exception of Muslim law, are now found in legislative enactments.

While these codified personal laws can be seen as State-made laws, for the uncodified Muslim law it is claimed by the community leaders that not being a “State-made law” it is beyond the scope of Part III.

The contention is clearly erroneous. The uncodified Muslim law is in force in India not as part of Muslim religion [as Muslim religious leaders presume] but because of its recognition by state legislation, mainly the Muslim Personal Law (Shariat) Application Act 1937. Particular chapters of Muslim law are protected by specific provisions of several other statutes – law of gifts by the Transfer of Property Act 1882, of wills by the Indian Succession Act 1925, of dower by the Dowry Prohibition Act 1961, and so on.

Jurisprudentially, no difference can be made between a personal law incorporated in some legislative enactments and another applied by the courts under the authority conferred by some other legislative enactments.

Even if it is presumed that personal laws are covered by the fundamental right to religious freedom under Article 25 of the Constitution, that Article itself emphatically says that this right will not prevent the State from introducing social reforms.

Constitutional position

In any case the Constitution does not exempt any personal law from the legislative powers of the State – on the contrary it specifically puts all personal law matters, without exempting any community, within the competence of Parliament and state legislatures [Schedule VII, List III, entry 5]. Further, all personal laws are administered in the country by State courts and nothing in the Constitution exempts any of them from the higher courts’ power of judicial review.

I am not saying that Muslim law should not be retained in force and have always loudly said that the State cannot repeal Muslim law without first repealing the four Hindu law Acts enacted by Parliament in 1955-56 [ignoring the civil laws of marriage and succession which were already available as a secular option].

My stand that if the personal law system is to be abandoned in favour of a common law the lead must come from the majority community was cited in the Shah Bano case (1985) with a rider “lead or no lead the State must act.”

Disagreeing with it, I maintain my considered opinion that repealing the traditional Muslim law while retaining the modern Hindu law – which also, like the former, is replete with religious and gender discriminations – will be repugnant to the Constitution.

The Muslim law claimed to be of “divine” origin is practised in India in an awfully distorted way going in a direction diametrically opposed to clear teachings of the Holy Quran and the Holy Prophet who was indeed one of the greatest social reformers in human history.

For 68 years since independence, religious leaders have succeeded in preventing any legislative reform. In the absence of any corrective legislation, the apex court of the country has cautiously tried to retrieve the original principles of Muslim law and apply them in their true letter and spirit. Religious leaders always deprecate such rulings too, sometimes in words bordering on contempt of court.

Those who claim immunity for Muslim personal law from the jurisdiction of the country’s apex court must read the writing on the wall and let it remain in force as a matter of state policy, without questioning its judicial interpretations.

Invoking the Constitution for its protection is an utterly unwise move which may prove fatal for its continuation in force.

Tahir Mahmood is Distinguished Jurist Chair & Professor of Eminence, Faculty of Law, Amity University.