REFORMS IN MUSLIM PERSONAL LAW: NEED OF THE HOUR
The Muslim Personal Law reforms are in news nowadays due to the pendency of litigations in the Supreme Court of India. Some Muslim women have filed applications in the Supreme Court wherein they have challenged the legal validity of triple talak and polygamy prevalent in Islamic community. A three judge bench of the Court led by the Chief Justice Mr. Khehar has asked the parties to formulate legal questions to be decided by a Constitution Bench of the Court. The Central Government through its Attorney-General is also keen to get the verdict of the Court on this burning issue.
Generally, two kinds of views are expressed on this issue by the people. A large section of the Muslim community including the All India Muslim Personal Law Board is opposing the petitions in the Court saying that the Court has no jurisdiction to adjudicate upon the legal validity of triple talak as the matters falls within the category of personal law which is immune from judicial review. This section states that the Muslim personal law is not subject to the fundamental rights chapter. Muslim personal law cannot be regulated either by the judiciary or by the legislature; the majority of Indian Muslims say so. However, there are many Muslims who opine otherwise. They do not treat triple talak in consistent with Holy Quran. They state that the triple talak is bad; it violates dignity of women and it must be abolished. But by whom should it be abolished-by the government or by the community. The answer is very clear. And they hold a strong view that the community should itself discourage the practice of triple talak.
So far as the other sections of Indian community are concerned, the views are equally different. Many people state that the Muslim personal law is not above the Constitution or the human rights. They believe that the time has come when major changes should be brought in the Muslim personal law. Triple talak and polygamy are treated as social evils by these people. They hope that the Supreme Court would do something visible in the pending cases. The author too finds substance in their arguments up to a large extent. Yes, the Muslim personal law needs major changes. No religious law can violate the human rights or dignity. In a secular social order, no personal law is above the supreme law of the land be it Hindu law or Muslim law or something else. A secular society has full right to question the illogical religious practices. And the responsibility to brings reforms comes on the shoulders of the elected government which runs the administration.
Soon after the commencement of the Constitution, Pandit Jawaharlal Nehru brought the Hindu Code Bill in collaboration with Dr. B. R. Ambedkar-the Prophet of Dalits. Many members of the Congress party were against this Code. Even the then President Dr. Rajendra Prasad had expressed his reservations on this issue. When the Bill got delayed, the Dalit thinker Dr. Ambedkar resigned in protest. Ambedkar was rightly attempting to reform the Hindu society which was badly plagued with many social evils including polygamy and untouchability. But finally, Prime Minister fulfilled Ambedkar’s wishes. The Hindu Code Bill was passed by the Parliament in 1955. At that time, many political persons raised their voice for reforms in Muslim personal law but Nehru left Muslims untouched. Rightly or wrongly, the reforms in Muslim personal law were deliberately delayed keeping in view the political consequences of the mission.
In 1985, the Supreme Court of India delivered a historical verdict in Shah Bano case which created a controversy in the country. Many conservative Muslims came on the road against the judgment of the Supreme Court saying that it was a clear interference in their personal law. What happened was very shocking. The then Central Government headed by Prime Minister Shri Rajiv Gandhi neutralized the verdict of the Court through a Parliamentary Bill-The Muslim Women Bill, 1986. Many eminent persons including Justice Krishna Iyer criticized this decision of Rajiv Gandhi government. But the government did not listen to any dissenting view. Vote bank politics prevailed over women’s rights and dignity. After all, the followers of Prophet constitute a big vote bank in this land of Gandhiji. The Shah Bano verdict was a mile stone in the area of gender justice. Had it not been diluted, the triple talak cases would have been reduced up to a large extent.
Now in 2017, the situation is different. India is governed by the saffron brigade-a political outfit well-known for its views about Islam and secularism. Even the view of Islamic community has changed differently. There are many women organizations among Muslims who are asking the government to enact the Muslim Code Bill. They are openly criticizing the practices of triple talak and polygamy. Even some High Courts of the country have criticized these practices. The matter is pending for adjudication before the Supreme Court. I think this is a great opportunity for the Court to give relief for many women who are badly suffered from the monstrous triple talak and polygamy. The government has also a stake in this matter. It cannot leave the whole matter to the Court. It should initiate the process to amend the Muslim personal law. The mistake which Prime Minister Rajiv Gandhi committed in 1986, should not be committed by the Modi government. No religion is above law. No religion can violate human rights. India is a secular country which is duty bound to honour women rights and dignity. Freedom of religion cannot run beyond the constitutional boundaries. The educated Muslim people should welcome this initiative. The women are not inferior to men. They are equal and should be treated equal in the eyes of law also. Prime Minister Modi should follow Pandit Nehru in terms of Codes-Hindu Code or Muslim Code and should not bother about communal vote-traders who are appeasing Muslims.
Written By: Dr. Lokendra Malik, Advocate, Supreme Court of India