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Articles of FaithReligion, Secularism, and the Indian Supreme Court$

Ronojoy Sen

Print publication date: 2010

Print ISBN-13: 9780198063803

Published to Oxford Scholarship Online: October 2012

DOI: 10.1093/acprof:oso/9780198063803.001.0001

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Imposing Legal Uniformity

Imposing Legal Uniformity

The Court and Muslim Minority Rights

Chapter:
(p.128) 6 Imposing Legal Uniformity
Source:
Articles of Faith
Author(s):

Ronojoy Sen

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780198063803.003.0006

Abstract and Keywords

This chapter examines the impact of court decisions on India's largest minority, the Muslims, primarily through the prism of personal laws and the Uniform Civil Code issue. The Supreme Court's intervention in Muslim personal law was most controversial in the now famous Shah Bano case. In a later case, Sarla Mudgal v. Union of India, the Supreme Court went further and categorically stated that there was no necessary connection between ‘religion and personal law in a civilized society’. In both cases, the Supreme Court linked the Uniform Civil Code with national unity and integration. This chapter argues that the Court's project of homogenizing religion comes across clearly in the personal law cases. The Court's rhetoric can be seen as an example of legal universalism. This has ended up having an adverse impact on minority rights and multiculturalism in India.

Keywords:   India, Supreme Court, Muslims, minority rights, personal laws, Uniform Civil Code, religion, multiculturalism, national unity, court decisions

In the earlier chapters, the focus has been on the judicial discourse on Hinduism and Hindu religious practices. The emphasis on Hinduism has largely been prompted by the fact that the Indian State has been far more active in reforming Hindu religious institutions and practices than those of other religions. As noted earlier, the reformist tendencies that the state displays towards Hinduism flow directly from the Constitution, particularly the provision in Article 25(2) (b) that permits the state to legislate for the social welfare and reform of Hindu religious institutions. However, Article 25(2) (a) is not restricted to Hinduism. Thus, the larger minority religions in India such as Islam or Christianity have not been immune from state intervention. The state supervises Wakf (Muslim endowment)1 boards via the Central Wakf Act, 1995. And in the famous case over the disputed site in Ayodhya,2 a five-judge bench, while deciding on the legality of the acquisition of the Babri Masjid/Ram Janambhoomi site, in a split verdict held that ‘there can be no reason to hold that a mosque has a unique or special status, higher than that of the places of worship of other religions in secular India to make it immune from acquisition by exercise of the sovereign or prerogative power of the State’.3 In the same ruling, the Court said a ‘mosque is not an essential part of the practice of Islam’ and ‘its acquisition is not prohibited’. The Court, however, added that the ‘acquisition of any religious place is to be made only in unusual and extraordinary situations for a larger national purpose’.4

(p.129) In this chapter, I am primarily concerned with court rulings on Muslim personal law and their impact on the discourse on minority rights. However, the question of women's rights and gender equality is something that is not dealt with here.5 The issue of personal laws encapsulates, to use Will Kymlicka and Wayne Norman's terminology, the two most important features of minority rights: one, they go beyond the usual set of civil and political rights of individual citizenship protected in liberal democracies; and two, they are adopted with the intention of recognizing and accommodating distinctive identities and needs of ethnocultural groups.6

It might be useful to briefly digress and consider the question of cow slaughter which, like personal laws, is something that continues to be governed partly by a non-justiciable directive principle of the Indian Constitution, and is also an emotive issue. Over the years, a countrywide ban on cow slaughter has been proposed on several occasions, mainly through private members' Bills in Parliament.7 In 1979, a resolution banning cow slaughter was passed by the Lok Sabha but did not eventually become law. Again, in 2003, the BJP-led government brought a Prevention of Cruelty to Cows Bill to Parliament. However, since under the Eighth Schedule of the Constitution preservation and protection of livestock is a state subject, a majority of states, with the exception of Kerala and most of the north-eastern states, have passed legislation banning cow slaughter. The first case related to cow slaughter came before the courts in 1958. In M.H. Qureshi v. State of Bihar,8 several Muslim butchers challenged the validity of Acts in three states banning cow slaughter. They challenged the legislation on two grounds: one, it impacted the right to carry on their trade as butchers; and two, it infringed their right to freedom of religion since they were obliged as Muslims to sacrifice a cow on Bakr-Id. On the question of the religious practice of slaughtering cows, speaking for the Court, S.R. Das, CJ referred to Hamilton's translation of the Hedaya to rule that it was optional for a Muslim to sacrifice a cow during Bakr-Id. The Court said, ‘While the petitioners claim that the sacrifice of a cow is essential, the State denies the obligatory nature of the religious practice’.9

(p.130) On the question of the legality of banning cow slaughter, the Court not only referred to Article 48 which enjoins the state to take steps to prohibit the slaughter of cows and calves, but also to the fact that Hindus hold cows in ‘great reverence’. The Court said, ‘While we agree that the constitutional question before us cannot be decided on grounds of mere sentiment, however passionate it may be, we, nevertheless, think that it has to be taken into consideration …’10 In the final analysis, the Court struck a compromise by saying that a ban on cow slaughter is permissible as long as it does not extend to cattle that can no longer yield milk, breed, or work on farms. In several successive cases, the Court followed the precedent set by Qureshi and upheld partial bans on cow slaughter. When the West Bengal Animal Slaughter Control Act made an exception for slaughtering cows on Bakr-Id, the apex court struck it down on the grounds that it was a ‘non-essential religious practice’.11

The uneasy compromise of Qureshi was shattered by a seven-judge bench ruling in State of Gujarat v. Mirzapur,12 which was heard by the Supreme Court soon after the BJP had raised demands for a nationwide ban on cow slaughter. Here, the dispute was over the Bombay Animal Preservation (Gujarat Amendment) Act which imposed a total prohibition on slaughter of cows, irrespective of age and utility. Giving the majority opinion for the Court, R.C. Lahoti, CJ opined that directive principles form a ‘fundamental feature and social conscience’13 of the Constitution. The Court not only brought Article 48 to bear on the case but also Articles 48-A and 51-A14 which deal with improving the environment and showing compassion for living creatures. By marshalling evidence on the productivity of cattle, agricultural methods, benefits of manure, and the eating habits of Indians, the Court said it cannot be accepted that bulls and bullocks become useless after the age of 16. It concluded that the ‘ban on slaughter of cow progeny as imposed by the impugned enactment is in the interest of the general public’.15 A.K. Mathur, J, however, recorded his dissent by saying that there had been no change in ground realities to warrant overturning of court rulings allowing partial cow slaughter from 1958 to 1996.

A similar progressive insensitivity to minority rights can be seen on the issue of Muslim personal law, which continues to be one of the most volatile issues pertaining to religion in the public sphere. (p.131) The Shah Bano case16 in 1985 was the most spectacular manifestation of the long-standing controversy over Muslim personal law. Two factors are particularly relevant for any discussion of Muslim personal law in the Indian context: The first is Article 44 of the Constitution—a directive principle like Article 48—which calls on the state to ‘secure for the citizens a Uniform Civil Code throughout the territory of India’; second, unlike Muslim personal law, which is governed by the Shariat Act of 1937, much of Hindu personal law has been codified and ‘reformed’ by the Hindu Code Bills (which consisted of four separate Parliamentary acts) of 1955–6.17 As Flavia Agnes points out, ‘The debate around the enactment of a uniform family code depicts the tension between two constitutional guarantees—that of equality and non-discrimination on the one hand, and of religious freedom on the other.’18

The court's uneasiness with legal pluralism comes across clearly in the personal law cases. In the cases involving Muslim personal law, the Supreme Court has, on more than one occasion, stated its preference for a uniform civil code. The Court's intervention is crucial in what Lloyd and Susanne Rudolph term the ‘contest between legal pluralism and legal universalism’.19 The Rudolphs define legal pluralism as a way of giving expression to India's ‘continuously and variously constructed multi-cultural society’.20 On the other hand, legal universalism ‘treats individuals as the basic unit of society and the state and imagines homogeneous citizens with uniform legal rights and obligations’.21 According to the Rudolphs, ‘Proponents of legal uniformity support a uniform civil code, and proponents of legal pluralism argue for minority rights in the form of diverse personal laws’.22 The Court rulings on Muslim personal law have almost always been premised on legal universalism. Before examining these rulings, let us briefly look at the background to the uniform civil code and the reform of Hindu personal law.

Evolution of Personal Laws

The prevalence of separate personal laws for different religious communities can be traced to the Mughals. One of the first things that the East India Company did after being granted the Diwani of Bengal, Bihar, and Orissa in 1765 was to demarcate a separate sphere for religious laws—comprising of personal laws—and (p.132) another one for secular laws, which covered areas such as crime and commercial contracts.23 The origins of this division can be traced to the famous 1772 regulation in which Warren Hastings, the first governor-general of India, directed that ‘in all suits regarding inheritance, marriage, caste, and other religious usages and institutions, the laws of the Koran with respect to the Mahomedans and those of the Shaster with respect to Gentoos shall be invariably adhered to’.24 If one accepts the argument of the Rudolphs that there has been a contest between legal uniformity and legal pluralism in different eras of modern Indian history, then the 1772 regulation was a move to recognize group identities.

British rule, however, also saw consistent efforts to rationalize and modernize personal laws. Some of the legislation reforming Hindu practices such as the Sati Regulation of 1829, the Caste Disabilities Removal Act of 1850, the Widow Remarriage Act of 1856, the Child Marriage Restraint Act of 1929, and the various Gains of Learning Bills, have been mentioned in an earlier chapter. There was similar legislation with respect to Islamic law. In 1918, the Mapilla Succession Act was enacted by which customary law and inheritance among the Mapilla Muslims was replaced by ‘Muhammedan law’. A similar law, the Cutchi Memons Act of 1920, was enacted for the Cutchi Memons which was replaced by another one in 1938. Another important law enacted in British India was the Dissolution of Muslim Marriages Act, 1939. This act was aimed at enabling Muslim women to dissolve their marriages under certain circumstances. Some other legislation passed during British rule were the Wakf Validating Act of 1913 and the Wakf Act of 1923, which were aimed at enforcing a large number of rules and regulations relating to management of wakf (a Muslim endowment) properties and keeping account and audit of their accounts. At the same time, the very act of British courts administering Hindu and Islamic personal law meant that parallel processes of rationalization and homogenization were also taking place. Gregory Kozlowski notes, ‘British imperial institutions: courts, law schools and administration, were the agencies which came close to codifying Muslim Personal law, or as the people during the raj called it, “Muhameddan Law”’.25

(p.133) By far the most important legislative intervention by the British, with regard to Islamic personal law, was the Muslim Personal Law (Shariat) Application Act26, which was enacted in 1937. It sought to replace customary law for marriage, divorce, succession, and other family affairs which did not have ‘any sound basis to stand upon and is very much liable to frequent changes and cannot be expected to attain at any time in future the certainty and definiteness which must be characteristic of all laws’. This had the effect of homogenizing Islamic personal law by wiping out personal laws of ‘minorities within Indian Islam’: the Khojas, the Cutchi Memons, Bohras, and the Malsan Muslims. Thus, the Rudolphs write, ‘Homogeneity was served powerfully in the nineteenth and twentieth centuries by three processes: changes in who administered the law; expansion of universal law by processes of codification; and the reformation and homogenization of personal law’.27

The Constituent Assembly Debates

The issue of separate personal laws and the desirability of a uniform civil code were intensely discussed in Constituent Assembly debates. According to John Mansfield, the ‘idea of a uniform civil code was first proposed during debate in the Constituent Assembly and its committees’.28 The debates in the Assembly pitted powerful voices demanding legal universalism against minority voices who pleaded for legal pluralism. The draft articles on justiciable rights proposed by both B.R. Ambedkar and K.M. Munshi alluded to a uniform civil code. Ambedkar wrote that the citizens of independent India shall have the right ‘to claim full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by other subjects regardless of any usage or custom based on religion and be subject to like punishment, pains and penalties and to none other’.29 Munshi stated that no court shall recognize any ‘custom or usage’.30 When the Fundamental Rights Sub-Committee decided to make the uniform civil code a directive principle, Amrit Kaur, along with two other members wrote, ‘One of the factors that have kept India back from advancing to nationhood has been the existence of personal laws based on religion which keep the nation divided into watertight compartments in many aspects of life’.31

(p.134) Prior to the discussion on the viability of a uniform civil code in the Assembly, there had been a heated debate on the rights of minorities and whether or not to have separate electorates for them in independent India. The tone for the debate was set by Congress leader G.B. Pant who said in January 1947, ‘We have even forgotten that a citizen exists as such. There is the unwholesome, and to some extent a degrading habit of thinking always in terms of communities and never in terms of citizens’.32 The Minorities Sub-Committee had originally proposed separate electorates for religious minorities and for Scheduled Castes and tribes. Once partition became inevitable, the demand for separate electorates for religious minorities was given up and the Advisory Committee mooted reservation for ten years. However, when the report was debated in the Constituent Assembly, just a few days after Indian independence and in the midst of the violence following the partition, the tide had decisively turned against reservation for religious minorities. On 27 August 1947, Vallabhbhai Patel would tick off the demands by Muslims demanding separate electorates by saying, ‘Those who want that kind of thing have a place in Pakistan, not here. Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to decide again and sow the seeds of disruption will have no place, no quarter, here …’33 Later during the course of the debates, Patel would ask the members to ‘forget that there is anything like majority or minority in this country and that in India there is only one community’.34

When Article 44 (Article 35 of the Draft Constitution) came up for discussion in the Constituent Assembly, all the five Muslim members who participated in the debate spoke against it. Mohammed Ismail Saheb wanted to include in the article the words ‘provided that any group, section or community of people shall not be obliged to give up its own personal law in case it has such a law’,35 which would have defeated its purpose. Similarly, Mahboob Ali Baig wanted to insert the following amendment: ‘Provided that nothing in this article shall affect the personal law of the citizen’.36 He argued:

People seem to think that under a secular state, there must be a common law observed by its citizens in all matters including matters of their daily (p.135) life, their language, their culture, their personal laws. This is not the correct way to look at the secular state. In a secular state, citizens belonging to different communities must have the freedom to practice their own religion, observe their own life and their personal laws should be applied to them.37

Hussain Imam was the only Muslim to entertain the possibility of a uniform civil code, but even he was in favour of it only in the distant future. He said, ‘I feel that it is all right and a very desirable thing to have a uniform law, but at a very distant day. For that, we should first await the coming of that event when the whole of India has got educated, when mass illiteracy has been removed, when people have advanced, when their economic conditions are better, when each man is able to stand on his own legs and fight his own battles’.38

The opposing viewpoint was forcefully articulated by Munshi, who said:

We are at a stage where we must unify and consolidate the nation by every means without interfering with religious practices. If, however, the religious practices in the past have been so construed as to cover the whole field of life, we have reached a point where we must put our foot down and say these matters are not religion, they are purely matters for secular legislation.39

He added, ‘Religion must be restricted to spheres which legitimately appertain to religion, and the rest of life must be regulated, unified and modified in such a manner that we may evolve, as early as possible, a strong and consolidated nation’.40 Munshi also pointed out that in none of the other ‘advanced’ Muslim countries ‘the personal law of each minority has been recognized as so sacrosanct as to prevent the enactment of a Civil Code’.41

During the debate, Ambedkar highlighted the fact that there was a ‘uniform and complete criminal code’ throughout the country. He stressed that a further step needed to be taken to take forward the secularization of law. He said:

The only province the Civil Law has not been able to invade so far is marriage and succession. It is this little corner which we have we have not been able to invade so far and it is the intention of those who desire to have article 35 as part of the Constitution to bring about the change.42

(p.136) Ambedkar countered the Muslim insistence on personal laws by observing that a uniform Islamic personal law itself was a construct of British rule. Addressing the Muslim members, Ambedkar said:

My first observation would be to state that members who have put forth these amendments (to the draft articles directed towards a common civil code) say that Muslim personal law, so far as this country was concerned, was immutable and uniform through the whole of India … My honourable friends have forgotten that, apart from the North-West Frontier Province, up till 1937 in the rest of India, in various parts, such as the United Provinces, the Central Provinces and Bombay, the Muslims to a large extent were governed by the Hindu Law in the matter of succession. In order to bring them on the plane of uniformity with regard to the other Muslims who observed the Shariat Law, the Legislature had to intervene in 1937 and to pass an enactment applying the Shariat Law to the rest of India.43

Ultimately, Ambedkar and Munshi's arguments did not win the day. The Constitution ‘did not abolish the system of personal laws and require that there be a uniform civil code; it only held forth a uniform civil code as an ideal towards which the state should strive’.44

Robert Baird notes in his analysis of the Constituent Assembly Debates:

Article 44 is based on the assumption that the Indian secular state requires the secularization of law—that civil law should be the same for all Indians in order that nation building can continue and that all persons can be welded together equally into a modern Indian state. This requires that traditional religious expressions become modified so that they are more and more a matter of personal faith, and that the state mould a modern civil code based on justice and equality.45

In a similar vein, Mansfield observes: ‘Once the notion of a uniform civil code was put forward, it rapidly came to be accepted as an important part of the effort to construct an Indian national identity, over against the separate identities of caste, religion and ethnicity’.46 As will be seen in a subsequent section, the Supreme Court in its prominent rulings on personal law, particularly Shah Bano and Sarla Mudgal, used this rhetoric of nationhood and national unity to-advocate the uniform civil code.

(p.137) The Hindu Code Bills

The Supreme Court seems to have been heavily influenced by the arguments, put forward during the debates on the reform of Hindu personal law, that the Hindu Code Bills must necessarily be a precursor to a uniform civil code. Following the 1935 Government of India Act, which empowered both the federal and provincial legislatures to make laws covering a wide range of activities, the Hindu Law Committee (Rau Committee) was, in 1941, entrusted the task of reforming Hindu law. In 1944, the Rau Committee published a draft Code which ‘proposed many specific changes in personal relationships in the Hindu community’.47 According to Harold Levy, the draft Hindu Code Bill was ‘more far-reaching in its intended reforms, than all of the piecemeal legislation enacted in 1921–41 together’.48

The controversial nature of the initial Hindu Code Bill was apparent. There were public protests as well as a minority report penned by Dwarkanath Mitter, one of the members of the four-man Rau Committee. Mitter wrote, ‘From a conspectus of the evidence and written opinions given in the whole of India through which the Committee had to tour, it will appear that the majority is against codification of Hindu law and it is only a microscopic minority that favors codification’.49 The divide over the Code would manifest itself in post-1947 debates in the Provisional Parliament where the bill failed to pass, despite Ambedkar's best efforts. There was strong opposition within the Congress by leaders such as Pattabhi Sitaramayya and Rajendra Prasad, who, as the President of India, threatened to use his veto power. It was only after India's first general elections—when a Congress government under Nehru commanded a brute majority—that a Hindu Code in four separate Acts was passed in Parliament.

During the parliamentary debates, the question of confining personal law reform to only Hindus dominated proceedings. In fact, the Hindu nationalists and the socialists were united in their criticism of exempting minority religions from reform. The Hindu Mahasabha's N.C. Chatterjee asked, ‘Why is this attempt to change the personal laws confined to Hindu society alone? Is not this communal legislation repugnant to the clear directive principles of the Constitution (p.138) that there should be a uniform civil code for all citizens of India?’50 At the other end of the spectrum, Acharya Kripalani of the Praja Socialist Party declared: ‘If we are a democratic state, I submit that we must make laws not for one community alone. Today the Hindu community is not as much prepared for divorce as the Muslim community is for monogamy … Will our government introduce a bill for monogamy for the Muslim community?’51

The criticism against singling out the Hindus was countered by a gradualist argument by the Congress government. Law minister H.V. Pataskar pointed out that the bills ‘would apply to 85 per cent of the people, and would thus constitute a big step towards uniformity’.52 When queried about the inability of his government to enact a uniform civil code, Nehru replied: ‘I confess I do not think the time is ripe for me to push it through. I want to prepare the ground for it and this kind of thing is one method of preparing the ground’.53 In recent years, the Supreme Court has repeatedly expressed its disapproval of this gradualist approach, and asserted that it is imperative that a common civil code be passed by the legislature54.

Muslim Personal Law

One of the first cases in independent India where the question of separate personal laws for Muslims came up before the courts was the landmark State of Bombay v. Narasu Appa Mali.55 In this case, the court used Nehru's logic of preparing the ground for a uniform civil code. In Appa, the validity of the Bombay Prevention of Hindu Bigamous Marriages Act, 1946, was challenged before the Bombay High Court. At the outset, M.C. Chagla, CJ clearly stated that personal laws could be reformed in the interests of state policy: ‘If religious practices run counter to public order, morality or health or a policy of social welfare upon which the state has embarked, then the religious practices must give way before the good of the people of the State as a whole’.56 Hence, Chagla observed, ‘Even assuming that polygamy is recognized according to Hindu religious practice, the right of the state to legislate on questions of marriage cannot be disputed’.57

Chagla, however, conceded the validity of personal laws saying it was a ‘historic fact’ that both Muslims and Hindus had their own (p.139) personal laws ‘which are based upon their religious texts and which embody their own distinctive evolution and which are coloured by their own distinctive backgrounds’.58 Chagla also pointed out that the inclusion of Article 44 in the Constitution itself was a recognition of ‘separate and distinctive personal laws because it lays down as a directive to be achieved that within a measurable time India should enjoy privileges of a common uniform Civil Code applicable to all its citizen irrespective of race or religion’.59 Thus, the Court rejected the argument that Hindus were being discriminated against by using Nehru's logic of gradual reform: ‘One community might be prepared to accept and work social reform; another may not yet be prepared for it … The state may rightly decide to bring about social reform by stages and the stages may be territorial or they may be communitywise’.60

P.B. Gajendragadkar, J, in a concurring opinion, said that the Act did not violate equality before the law. Gajendragadkar wrote, ‘So long as the State Legislature in taking gradual steps for social welfare and reform does not introduce distinctions or classifications which are unreasonable, irrational or oppressive, it cannot be said that the equality before law is offended. The State Legislature may have thought that the Hindu community was more ripe for the reform in question’.61 However, Gajendragadkar stressed that personal laws were outside the purview of the fundamental rights of the Constitution and would have to give way to a uniform civil code in the future: ‘The framers of the Constitution wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have been aware that these personal laws needed to be reformed in many material particulars and in fact they wanted to abolish these different personal laws and to evolve one common code’.62 Thus, both Chagla and Gajendragadkar exempted the Muslims from the bigamy act, but, at the same time, felt that a uniform civil code would become reality in the future. It is this conviction that would be expressed in later court rulings on personal law.

A few years before the celebrated Shah Bano case, the Supreme Court in 1979 had to examine Muslim personal law in the light of the right of a divorced Muslim woman to seek maintenance from her husband. The first case was Bai Tahira v. Ali Hussain Fidaalli Chothia,63 in which a divorced Muslim woman moved the court (p.140) under Section 12564 of the Indian Code of Criminal Procedure (CrPC). The petitioner argued that the mahr (dower) and maintenance during iddat (the three-month period after divorce)—the relevant provisions in Islamic law for divorced women—were inadequate to meet her expenses. Speaking for the Court, Krishna Iyer, J did not go into the merits of Islamic law. Instead, he focussed on the provision in Section 127(3) (b),65 which says that a magistrate can cancel an order for maintenance if a divorced woman has received the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce’. According to Iyer, payment of mahr was compatible with Section 127. He, however, pointed out that any maintenance paid under customary law must be reasonable. Thus, he ruled in favour of the divorced woman: ‘The purpose of the payment “under any customary law” must be to obviate destitution of the divorcee and to provide her with the wherewithal to maintain herself … There must be a rational relation between the sum so paid and its potential as provision for maintenance. To interpret otherwise is to stultify the project’.66 It is noteworthy that not once did Iyer mention Islam or the uniform civil code in his judgment. An authority on Muslim law in India, Tahir Mahmood, comments that Bai Tahira was a ‘liberal ruling’ that ‘conforms to the spirit of Islamic law on the subject’.67

A year later, Iyer had occasion to deal with another case where a Muslim woman petitioned against inadequate maintenance. In Fuzlunbi v. K. Khader Vali,68 the Court made two points. First, Iyer stressed that ‘Section 125–127 is a secular code deliberately designed to protect destitute women, who are victims of neglect during marriage and after divorce’.69 Second, he said, ‘Muslim law shows its reverence for the wife in the institution of mahr (dower). It is neither dowry nor price for marriage’. Unlike Bai Tahira, Iyer analysed the significance of mahr in Islamic law. The Court said, ‘The quintessence of mahr whether it is prompt or deferred is clearly not a contemplated quantification of a sum of money in lieu of maintenance upon divorce’.70 Iyer's verdict was:

Even by harmonizing payments under personal and customary laws with the obligations under Sections 125 to 127 of CrPC, the conclusion is clear that the liquidated sum paid at the time of divorce must be a reasonable and not an illusory amount … This perspective of social justice alone does (p.141) justice to the complex of provisions from Section 125 to Section 127 of the Criminal Procedure Code.71

The Supreme Court's intervention in Muslim personal law was far more controversial in the now famous Shah Bano case. In this case, Shah Bano, a divorced Muslim woman from Indore in Madhya Pradesh, sued her former husband Mohammed Ahmed Khan for not providing adequate maintenance under Section 125. A lower court awarded Shah Bano a monthly payment of Rs 25, which was later raised to Rs 180 by the Madhya Pradesh High Court. The case was then taken up at the Supreme Court where Khan contended that he was not obliged to maintain his former wife under Muslim personal law since he had paid a mahr of Rs 3,000 plus maintenance for three months.

In the Supreme Court, Y.V. Chandrachud, CJ framed the case as illustrating a potential conflict between the civil and criminal laws of the country and gender rights on one hand and Islamic law on the other. He wrote:

This appeal, arising out of an application filed by a divorced Muslim woman for maintenance under Section 125 of the Code of Criminal Procedure, raises a straightforward issue which is of common interest not only to Muslim women, not only to women generally but, to all those who, aspiring to create an equal society of men and women, lure themselves into the belief that mankind has achieved a remarkable degree of progress in that direction.72

Chandrachud concluded that Section 125 was not religion-specific in its scope, but ‘cut across barriers of religion’.73 He observed, ‘True, that they [provisions of a prophylactic nature] do not supplant the personal law of the parties, but, equally, the religion professed by the parties or the state of the personal law by which they are governed, cannot have any repercussions on the applicability of such laws …’74 This was very similar to Iyer's conclusion in Fuzlunbi: ‘Neither personal law nor other salvationary plea will hold against the policy of public law pervading Section 127(3)(b) as much as it does Section 125’.75

Next, the Court went on to enquire whether the right to maintenance of a divorced woman clashed with Muslim personal law. After citing two authoritative texts on Muslim law, the Court said, ‘There (p.142) is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband's obligation to provide maintenance for a divorced wife who is unable to maintain herself’.76 Chandrachud went even further and interpreted the Shariat to opine that the ‘Quran imposes an obligation on the Muslim husband to make provision for or to provide maintenance to the divorced wife’.77 Finally, the Court examined Section 127(3)(b). Chandrachud referred to two standard texts on Muslim law to conclude that it was impossible to accept that mahr was the amount payable by the husband to his wife upon divorce. He wrote, ‘Therefore no amount which is payable in consideration of the marriage can possibly be described as an amount payable in consideration of divorce’.78

What distinguished Shah Bano from the two earlier cases, decided by Iyer, was the strong stand taken by the Court on the desirability of uniform civil laws. During the course of the judgment, Chandrachud regretted that Article 44 of the Constitution, which calls for a uniform civil code, had remained a ‘dead letter’. Chandrachud linked the uniform civil code to ‘national integration’ which he felt would remove ‘disparate loyalties to laws which have conflicting ideologies’. He observed that though the state had the legislative competence to enact a common civil code, it lacked the ‘political courage’ to do so. According to Chandrachud, the court had to take on the mantle of reformer: ‘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’.79

That the Chief Justice's opinion was not an isolated case of judicial activism was borne out by another judgment of the Supreme Court a few months later. In Jorden Diengdeh v. S.S Chopra,80 the question at stake was a divorce filed by a Christian woman who had married under the Indian Christian Marriage Act, 1972. However, under the relevant legislation pertaining to divorce, the Indian Divorce Act, 1869, neither ‘mutual consent nor irretrievable breakdown of marriage’ is a ground for divorce. This led the Court to observe, ‘Surely the time has come for a complete reform of the law of marriage and make a uniform law applicable to all people irrespective of religion or caste’.81

(p.143) The Uniform Civil Code

This thrust for uniformity of personal laws was more explicitly stated in Sarla Mudgal v. Union of India,82 in which an NGO and three women appealed to the Supreme Court to take action against men converting to Islam in order to marry a second time. Interestingly, the Court appealed to Hindu law, and not to notions of gender justice, to decide the case. Writing for the Court, Kuldip Singh, J ruled that, according to Hindu law as well as the Hindu Marriage Act, conversion to another religion did not have the effect of dissolving a Hindu marriage. Thus, a second marriage would violate Section 494 of the Indian Penal Code, which declares illegal a second marriage during the lifetime of a husband or wife whose personal law does not permit such second marriage.

The provisions of Hindu marriage law were used by the Court to press the case for a uniform civil code. ‘When more than 80 per cent of the citizens have already been brought under the codified personal law’, wrote Singh, ‘there is no justification whatsoever to keep in abeyance, any more, the introduction of “uniform civil code” for all citizens in the territory of India’.83 Singh, however, did not stop at that. He wrote, ‘Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilized society’. Singh contended that personal laws had nothing to do with religion and was a creation of British legislation during the time of Warren Hastings. Hence, the Court saw no problem in doing away with personal laws: ‘The Legislation—not religion—being the authority under which personal law was permitted to operate and is continuing to operate, the same can be superseded/supplanted by introducing a uniform civil code …’84

The Court went further and interpreted the Indian Constitution as divorcing religion from personal laws: ‘Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law’. It then singled out the Muslim and Christian communities for obstructing the uniform civil code: ‘The Hindus along with Sikhs, Buddhists and Jains have forsaken their sentiments in the cause of the national unity and integration, [while] some other communities would not, though the Constitution enjoins the establishment of a “common civil code” for the whole of India’.85 In a concurring judgment, R.M. Sahai, J wrote, (p.144) ‘But religious practices, violative of human rights and dignity and sacerdotal suffocation of essentially civil and material freedoms, are not autonomy but oppression’.86

In 2003, the Supreme Court again articulated the need for a uniform civil code. John Vallamattom v. Union of India 87 revolved around a clause of the Indian Succession Act, 1925, which imposed certain restrictions on Christians who desired to bequeath property for religious and charitable purposes.88 Speaking for the Court, V.N. Khare, CJ observed, ‘Section 118 of the Act imposes a restriction only on the Indian Christians. The said restriction is not applicable to the citizens belonging to other religions including Parsis. The short question, therefore, which arises for consideration is as to whether the said restriction imposed by Section 118 of the Act is a reasonable one’.89 After judging the evidence by the ‘touchstone’ of Article 14, which guarantees equality before the law, the chief justice held: ‘I find that Section 118 of the Act being unreasonable is arbitrary and discriminatory and, therefore, violative of Article14 of the Constitution’.90

However, what made this ruling attract considerable media attention was the strident advocacy, like in Sarla Mudgal, of a uniform civil code.91 Commenting on Article 44, the Court said, ‘The aforesaid provision [Article 44] is based on the premise that there is no necessary connection between religious and personal law in a civilized society’.92 Importantly, the Chief Justice specified that personal laws governing marriage or succession could not be brought within the freedom of religion clauses in the Constitution:

Articles 25 and 44 show that the former guarantees religious freedom whereas the latter divests religion from social relations and personal law. It is no matter of doubt that marriage, succession and the like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25 and 26 of the Constitution.

Finally, in an obiter dicta, reminiscent of Shah Bano and Sarla Mudgal, the Court said, ‘It is a matter of regret that Article 44 of the Constitution has not been given effect to. Parliament is still to step in for framing a common civil code in the country. A common civil code will help the cause of national integration by removing the contradictions based on ideologies.’93

(p.145) The Court has, however, not been consistent in its push for uniformity of personal laws. In Madhu Kishwar v. State of Bihar,94 where the Court had to decide whether there should be parity between male and female tribals in intestate succession, the majority judgment ruled in favour of maintaining tribal laws. Speaking for the majority, M.M. Punchhi, J observed that neither the Hindu Succession Act, Indian Succession Act, nor Shariat law applied to the tribals. He wrote, ‘In face of these divisions and visible barricades put up by sensitive tribal people valuing their own customs, traditions and usages, judicially enforcing on them the principles of personal laws applicable to others, on an elitist approach or an equality principle, by judicial activism, is a difficult and mindboggling effort’.95

Clearly, the Court was willing to put on hold social reform and gender equality in deference to the sensibilities of the tribals, while it was unwilling to do so for Muslims. Interestingly, the Court in Kishwar was making an allowance for custom or tradition and not for religion-sanctioned personal laws. However, Ramaswamy, J who passed several crucial judgments on state administration of temples, dissented. He held that the general principles of justice, equity, and good conscience must apply to tribals. Ramaswamy wrote, ‘Scheduled Tribe women would succeed to the estate of their parent, brother, husband, as heirs by intestate and inherit the property with equal share with male heir with absolute rights as per the general principles of Hindu Succession Act, 1956, as amended and interpreted by this Court and equally of the Indian Succession Act …’96

From Uniformity to Plurality

The Rudolphs point out that the idea of a uniform civil code has no single meaning, but can be characterized as a ‘multivalent signifier’.97 They identify five possible meanings for the uniform civil code: first, the colonial state's attempts to standardize and modernize law was an implicit move towards a common civil code; second, for the modernist nationalists, a uniform civil code was a means to promote national integration; third, for civil rights activists, a uniform civil code signified the empowerment of marginalized categories, especially women and minorities; fourth, for religious minorities, the uniform (p.146) civil code was a direct attack on their personal laws and their cultural identity; and finally, for Hindu nationalists, a uniform civil code was a way to eliminate cultural differences. Indeed the paradoxical nature of the debate on the uniform civil code is illustrated by the fact that the ‘secularists’, who argue for legal uniformity, end up on the same side as that of the Hindu nationalists.

The Rudolphs suggest that the issue of personal laws and uniform civil code straddles questions of identity, minority rights, and gender equality. In the foregoing discussion, I have attempted to show that the Supreme Court has consistently interpreted the uniform civil code as a means to unify the nation, as well as to showcase it as a way to grant relief to women governed by oppressive personal laws. According to Agnes, ‘It is interesting to note that no matter what the core issue litigated before the apex court, the comments regarding the enactment of a UCC are always made in reference to “national integration” and contain, further, either an insinuation or a direct attack against Muslim law.’98 However, she adds that this ‘also creates the fiction that Hindus are governed by a secular, egalitarian, and gender-just family code and implies that it was high time that this code was extended to Muslims to usher in modernity and gender equality among them’.99

This has meant that the Court has usually ignored the fears of minority communities that a uniform civil code would pose a threat to their identity. In fact, the Sarla Mudgal ruling, delivered in the post-Babri Masjid period when Hindu nationalism was on the upswing, can be seen as an indictment of the Muslim minority for not conforming to the standardized laws of the nation. Hence, Madhu Kishwar notes:

This [Sarla Mudgal] is not exactly a legal judgment but more of a political sermon on how the Muslim minority should learn to behave and what ought to be its relationship to the Indian state … The insistence on a uniform civil code is a way of subjecting Muslims to a loyalty test. It is a way of asking them to prove that their allegiance to the Indian state and its laws stands above all other competing allegiances, especially to that of religion.100

If the Supreme Court is a crucial player in this ‘continual negotiation’ over the uniform civil code and personal laws, the Danial Latifi v. Union of India 101 ruling in 2001 is an example of how the Court (p.147) diluted its own stand on personal laws. The case can be seen as an interesting postscript to the Shah Bano ruling. In this case, the Muslim Women (Protection of Rights on Divorce) Act, 1986,102 passed by the Congress government103 in the aftermath of Shah Bano, was challenged in Court. Though it was apparent that the Congress passed the Muslim Women Act to keep its Muslim constituency intact, Agnes points out that ‘despite its limitations, the act was of immense historical significance as the first attempt in independent India to codify the Muslim Personal Law’.104 Furthermore, once the Act was challenged in different high courts Agnes writes:

The most significant issue that emerged out of the enactment revolved around the stipulation of ‘a fair and reasonable provision’. Drawing on the Islamic concept of mataoon bil maʼaroofe (fair and reasonable provision), several High Courts opened a new portal for the protection of divorced Muslim women. The remedy, which the courts so carefully crafted out of the controversial legislation, in fact seems to provide a better safeguard than the earlier antivagrancy provision under Section 125 of the Criminal procedure.105

The approach of the five-judge bench in the Supreme Court deciding Danial Latifi was clearly stated by S. Rajendra Babu, J: ‘Solutions to such societal problems of universal magnitude pertaining to horizons of basic human rights, culture, dignity and decency of life and dictates of necessity in the pursuit of social justice should be invariably left to be decided on considerations other than religion or religious faith or beliefs or national, sectarian, racial or communal constraints’.106 However, in its ruling, the Court deviated from this position of legal universalism.

In Danial Latifi, the Court was primarily concerned with sections of the Muslim Women Act which dealt with the amount and period of maintenance to be paid by a Muslim husband to his divorced wife, and the role of the community, particularly the wakf boards, in paying maintenance to a divorced Muslim woman. Regarding the period of maintenance, the Court said that the ‘purpose of the Act appears to be to allow the Muslim husband to retain his freedom of avoiding payment of maintenance to his erstwhile wife after divorce and the period of iddat’.107 At the same time, the Court held that ‘nowhere has the Parliament provided (p.148) that reasonable and fair provision and maintenance is limited only for the iddat period and not beyond it. It would extend to the whole life of the divorced wife unless she gets married for a second time’.108 On whether the Act conformed to the Shah Bano ruling, Rajendra Babu said, ‘All that needs to be considered is whether in the Act specific deviation has been made from the personal laws as declared by this Court in Shah Bano's case without mutilating its underlying ratio. We have carefully analyzed the same and come to the conclusion that the Act actually and in reality codifies what was stated in Shah Bano's case’.109

With regard to the involvement of the wakf boards, the Court said that the provisions of the Act providing for ‘maintenance to be paid by the former husband only for the period of iddat and thereafter to make her run from pillar to post in search of her relatives one after the other and ultimately to knock at the doors of the Wakf Board does not appear to be reasonable and fair substitute of the provisions of Section 125 CrPC’.110 The Court further observed that these provisions infringed Articles 14 and 15 of the Constitution:

The provisions prima facie, therefore, appear to be violative of Article 14 of the Constitution mandating equality and equal protection of law to all persons otherwise similarly circumstanced and also violative of Article 15 of the Constitution which prohibits any discrimination on the ground of religion as the Act would obviously apply to Muslim divorced women only and solely on the ground of their belonging to the Muslim religion.111

Having said this, the Court still upheld the Act on the ground that the legislature did not intend to enact ‘unconstitutional laws’.

It is well settled that on a rule of construction a given statute will become ultra vires or unconstitutional and, therefore, void, whereas on another construction which is permissible, the statute remains effective and operative the court will prefer the latter on the ground that the legislature does not intend to enact unconstitutional laws.112

Danial Latifi was a rare instance of the Court deviating from its customary emphasis on legal uniformity. It is noteworthy that the deviation was not justified by legal pluralism or the rights of minorities, but by a technical ‘rule of construction’. However, as a whole, in the cases dealing with personal law, the courts have consistently (p.149) sought to distance religion from civil law. By subordinating religious laws to the goal of a common civil code, the courts have not only tried to marginalize religion in the public sphere, but also eliminate minority rights based on religious identity. In doing this, the Court has echoed some of the influential voices in the Constituent Assembly such as Ambedkar and Munshi. The Court's rationale for the uniform civil code has been predicated on the understanding that a unified substantive law is a defining characteristic of a nation-state.

The right to have personal laws was a critical guarantee for Indian Muslims at the time of India's independence. In contemporary India, Muslim opinion, as Tahir Mahmood points out, ‘is deadly opposed to the replacement of their personal laws by a common civil code’.113 However, by stridently advocating a uniform civil code, the Court has either ignored or downplayed what Mansfield calls ‘identity value’, which he defines as the value of ‘an ethnic or religious group within a territorial state being able to maintain its distinctive identity and through this its members' sense of existing and having meaning’.114 According to Mansfield, a ‘permissible reading of Article 44 leaves open for consideration the weight and persuasiveness of the identity value, as it is presented in the Indian context’.115 Subrata Mitra also points out, ‘The resistance that the idea of a common civil code received both during the constituent assembly debates and subsequently during the debate in the Parliament on the issue of the Hindu Code Bill in the 1950s shows the extent of potential support there was for a plurality of civil codes in India’.116 Dieter Conrad even goes to the extent of controversially suggesting that ‘personal laws are part of the “culture” guaranteed to any of the section of citizens by Article 29(1)’.117 However, the Court has post-Shah Bano chosen to view the debate on the uniform civil code versus personal law as a ‘zero-sum conflict’.118 Indeed, this goes against the trend of popular support, not just among Muslims, for plurality of civil codes as indicated by the findings of surveys.119

It is time that the Court realizes, in the words of Werner Menski, ‘The one-sided political motivated quest for a truly uniform family law for India is, several decades after the Constitution was promulgated, perhaps no longer a realistic aim. It has been defeated by the persistence of traditional Indian preferences for diversity and flexibility, and by the mere size of the country and (p.150) the diversity within its population’.120 However, this does not preclude reform of Muslim personal law in India which has remained ossified for several decades. This point has been eloquently argued by Mahmood:

The law of Islam, seen in its true perspective and purged of all its distortions, can be an asset for the emerging family law of India. What is required that our judges and lawyers should stop looking at Islamic law through the spectacles of the British-Indian courts and their past and present rapporteurs. Those who are its followers and love it must arrange to get its principle rewritten in their true perspective for the benefit of the contemporary law-men.121

Notes

(1.) A wakf is defined in the Wakf Act, 1995 as: ‘Wakf means permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious and charitable’.

(2.) Ismail Faruqui v. Union of India, AIR 1995 SC 605.

(3.) Ibid., p. 641. In a dissenting judgment, S.P. Bharucha, J and A.M Ahmadi, J said that when the majority community makes a claim on the place of worship of another religion, it is not permissible for the state to ‘acquire that place of worship to preserve pubic order’. While most commentators welcomed the consequences of the judgment, for a critique of the reasoning of the majority judgment, see Rajeev Dhavan, ‘The Ayodhya Judgment: Encoding Secularism in the Law’, in Economic and Political Weekly, 26 November 1994. For details of the Babri-Masjid Ramjanambhumi controversy, see Ashghar Ali Engineer (ed.), ‘Babri-Masjid Ramjanambhumi controversy’, (Delhi: Ajanta Publication, 1990). The dangers of the state getting involved in acquiring land with ‘religious’ significance was demonstrated in the prolonged agitation in Jammu and Kashmir over the revocation of a state government order allotting forest land to the Amarnath Shrine Board.

(4.) AIR 1995 SC 641.

(5.) There is extensive literature on the question of gender, personal laws and the Uniform Civil Code. See, for example, Archana Parashar, Women and Family Law Reform in India: The Uniform Civil Code and Gender Equality (New Delhi: Sage Publications, 1992); Rina Verma Williams, Postcolonial Politics and Personal Law: Colonial Legal (p.151) Legacies and the Indian State (New Delhi: Oxford University Press, 2006); Vrinda Narain, Reclaiming the Nation: Muslim Women and the Law in India (Toronto: University of Toronto Press, 2008); Robert D. Baird, ‘Gender Implications for a Uniform Civil Code’, in Gerald Larson (ed.), Religion and Personal Law in Secular India (Bloomington: Indiana University Press, 2001).

(6.) Will Kymlicka and Wayne Norman, ‘Introduction’, in Kymlicka and Norman (ed.), Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000), p. 2.

(7.) For a list, see ‘The Milky Way’, in Outlook (New Delhi), 10 March 2003.

(8.) AIR 1958 SC 731.

(9.) Ibid., p. 740.

(10.) Ibid., p. 745.

(11.) 1995 (1) SCC 197.

(12.) 2005 (8) SCC 534.

(13.) Ibid., p. 563.

(14.) Article 48-A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A: It shall be the duty of every citizen of India–

(g) to protect and improve the natural environment including forests lakes, rivers and wildlife, and to have compassion for living creatures.

(15.) 2005 (8) SCC 597.

(16.) Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

(17.) The Hindu Marriage Bill, Hindu Succession Bill, Hindu Minority and Guardianship Bill and Hindu Adoptions and Maintenance Bill. See Harold Levy, Indian Modernization by Legislation: The Hindu Code Bill (Ph.D. dissertation in Political Science, University of Chicago, 1973).

(18.) Flavia Agnes, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’, in Anuradha Dingwaney Needham and Rajeshwari Sunder Rajan (ed.), The Crisis of Secularism in India, p. 294.

(19.) Susanne Hoeber Rudolph and Lloyd I. Rudolph, ‘Living with Difference in India: Legal Pluralism and Legal Universalism in Historica Context’, p. 36.

(20.) Ibid., p. 35.

(21.) Ibid., p. 36.

(22.) Ibid., p. 36.

(23.) Islamic criminal law ceased to be applied after 1862, when the Criminal Procedure Code of 1859 and the Indian Penal Code of (p.152) 1860 were promulgated. The Islamic law of evidence lapsed after the Indian Evidence Act, 1872, came into effect.

(24.) Courtney Ilbert, The Government of India (London: Clarendon Press, 1898), p. 392.

(25.) Gregory C. Kozlowski, ‘Muslim Personal Law and Political Identity in Independent India’, in Baird (ed.) Religion and Law in Independent India, p. 79.

(26.) The statute says: ‘Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, liam, khula and mubarat, maintenance, dower, guardianship, gifts, trust and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)’. See Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 2005), p. 58.

(27.) Rudolph and Rudolph, ‘Living with Difference in India: Legal Pluralism and Legal Universalism in Historical Context’, p. 51.

(28.) John H. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’ in Baird (ed.) Religion and Law in Independent India, p. 139.

(29.) B. Shiva Rao, The Framing of India's Constitution: Select Documents Vol. II, p. 89.

(30.) Ibid., p. 79.

(31.) Ibid., p. 162.

(32.) Ibid., pp. 62–3.

(33.) Constituent Assembly Debates, Vol. V, p. 271.

(34.) B. Shiva Rao, The Framing Of India's Constitution: Select Documents, Vol. IV, p. 606.

(35.) Constituent Assembly Debates, Vol. VII, p. 540.

(36.) Ibid., p. 541.

(37.) Ibid., p. 544.

(38.) Ibid., p. 546.

(39.) Ibid., p. 574.

(40.) Ibid., p. 548.

(41.) Ibid., p. 547.

(42.) Ibid., pp. 550–1.

(43.) Ibid., p. 551.

(44.) Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 140.

(p.153) (45.) Robert D. Baird, ‘Uniform Civil Code and the Secularization of Law’, in Baird, Essays in the History of Religions, p. 172.

(46.) Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 140.

(47.) Gene D. Overstreet, ‘The Hindu Code Bill’, in Lucian W. Pye (ed.), Cases in Comparative Politics: Asia (Boston: Little Brown, 1970), p. 163.

(48.) Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 356.

(49.) Quoted in Baird, ‘Uniform Civil Code and the Secularization of Law’, p. 179.

(50.) Quoted in Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 286.

(51.) Ibid., p. 286.

(52.) Ibid., p. 290.

(53.) Ibid., p. 290.

(54.) As seen in various cases discussed later like Shah Bano and Sarla Mudgal among others.

(55.) AIR 1952 Bombay 84.

(56.) Ibid., p. 86.

(57.) Ibid., p. 86.

(58.) Ibid., p. 87.

(59.) Ibid., p. 87.

(60.) Ibid., p. 87.

(61.) Ibid., p. 95.

(62.) Ibid., p. 92.

(63.) 1979 (2) SCC 316.

(64.) Section 125 of the CrPC which deals with the right to maintenance reads: (1) If any person having sufficient means neglects or refuses to maintain—(a) his wife, unable to maintain herself … a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife …, at such monthly rate not exceeding five hundred rupees in the whole …

(65.) Section 127(3) states: Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that (b) the woman has been divorced by her husband, and that she has received, whether before or after the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,

(66.) 1979 (2) SCC 322.

(p.154) (67.) Tahir Mahmood, The Muslim Law of India (Allahabad: Law Book Co., 1982), p. 132.

(68.) AIR 1980 SC 1730.

(69.) Ibid., p. 1735.

(70.) Ibid., p. 1736.

(71.) Ibid., p. 1736.

(72.) AIR 1985 SC 946.

(73.) Ibid., p. 948.

(74.) Ibid., p. 948.

(75.) AIR 1980 SC 1736.

(76.) AIR 1985 SC 951.

(77.) Ibid., p. 952.

(78.) Ibid., p. 953.

(79.) Ibid., p. 954.

(80.) AIR 1985 SC 935.

(81.) Ibid., p. 940.

(82.) AIR 1995 SC 1531.

(83.) Ibid., p. 1532.

(84.) Ibid., p. 1539.

(85.) Ibid., p. 1538.

(86.) Ibid., p. 1540.

(87.) AIR 2003 SC 2902.

(88.) Section 118 of the Act states: ‘No man having a nephew or niece or any nearer relative shall have the power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the will of living persons’.

(89.) AIR 2003 SC 2902.

(90.) AIR 2003 SC 2902.

(91.) The front page headlines in The Telegraph on 24 July 2003 read: ‘SC clears statute path for common civil code’. The front page of The Times of India was more restrained: ‘SC favours common code’.

(92.) AIR 2003 SC 2902.

(93.) Ibid.

(94.) AIR 1996 SC 1864.

(95.) Ibid., p. 1881.

(96.) Ibid., p. 1879.

(97.) Rudolph and Rudolph, ‘Living with Difference in India’, p. 55.

(98.) Flamia Agnes, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’, pp. 297–8.

(p.155) (99.) Ibid., p. 298.

(100.) Madhu Kishwar, Religion at the Service of Nationalism (New Delhi: Oxford University Press, 1998), pp. 235–6.

(101.) 2001 (7) SCC 740.

(102.) The Statement of Objects and Reasons to the Bill read:

This decision [Shah Bano] has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. The Bill, accordingly, provides for the following among other things, namely:

  1. ((a)) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period to iddat by her former husband and in case she maintains the children borne to her before or after the divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband and husband's relatives …

  2. ((b)) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law in the proportions in which they would inherit her property … But where a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.

(103.) The Act was passed by the Rajiv Gandhi government in the wake of the Muslim backlash to the Shah Bano ruling. One of the reasons for passing the legislation was to win back Muslim confidence in the Congress, which had suffered a heavy loss in a parliamentary by-election in the Muslim dominated Kishanganj constituency. The winning candidate, Syed Shahabuddin, made the Shah Bano ruling and the victimization of the Muslims the centrepiece of his campaign. Thus, an editorial in The Times of India on 28 February 1986, said that in passing the Bill, the Congress ‘was desperately keen to win back the Muslim vote which was supposed to have been alienated partly as a result of the Shah Bano affair’.

(104.) Flavia Agnes, p. 308. There are others who have found many flaws in the Act. See, for example, Tahir Mahmood, ‘Islamic Family Law in India: Latest Developments in India’, in Chibli Mallat and Jane Connors (ed.), Islamic Family Law (London: Graham and Trotman, 1990).

(p.156) (105.) Ibid., p. 310.

(106.) 2001 (7) SCC 757–8.

(107.) Ibid., p. 760.

(108.) Ibid.

(109.) Ibid., p. 763.

(110.) Ibid.

(111.) Ibid., p. 764.

(112.) Ibid.

(113.) Tahir Mahmood, An Indian Civil Code and Islamic Law (Bombay: N.M. Tripathi, 1976), p. 3.

(114.) Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 175. Amartya Sen is right when he says religion is ‘not, and cannot be, a person's all-encompassing identity’. Amartya Sen, Identity and Violence: The Illusion of Destiny, (London: Allen Lane, 2006) p. 83. However, religion is certainly a critical component of the identity of many Indian Muslims. Political theorist William Connolly explains, ‘An identity is established in relation to a series of differences that have become socially recognized. These differences are essential to its being’. Connolly, Identity/Difference: Democratic Negotiations of Political Paradox, (Minneapolis: University of Minnesota Press, 1991), p. xiv.

(115.) Ibid., p. 175.

(116.) Subrata Mitra, ‘Constitutional Design, Democratic Vote Counting, and India's Fortuitous Multiculturalism’, Heidelberg Papers in South Asian and Comparative Politics, Working Paper No. 4 (November 2001), p. 24.

(117.) Dieter Conrad, ‘The Personal Law Question and Hindu Nationalism’, in Vasudha Dalmia and Heinrich von Stietencron (ed.), Representing Hinduism: The Construction of Religious Traditions and National Identity.

(118.) Rudolph and Rudolph, ‘Living with Difference in India’, p. 56.

(119.) In a survey done in 1996, 44.4 per cent of the total sample said that every community should be allowed to have its own laws to govern marriage and property rights as opposed to 30.4 per cent that wanted uniform civil code. See Mitra, ‘Constitutional Design, Democratic Vote Counting, and India's Fortuitous Multiculturalism’, p. 25.

(120.) Werner Menski, ‘Family Law and Uniform Civil Code in India’, in Chibli Mallat and Jane Connors (eds), Islamic Family Law, p. 293. Interestingly, the archbishop of Canterbury, Rowan Williams, caused a controversy in 2008 when he suggested some accommodation (p.157) between British law and Sharia. See ‘Defining the Limits of Exceptionalism,’ The Economist (16 February 2008).

(121.) Tahir Mahmood, Personal Laws in Crisis (New Delhi: Metropolitan, 1986), p. 93.

Notes:

(1.) A wakf is defined in the Wakf Act, 1995 as: ‘Wakf means permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious and charitable’.

(2.) Ismail Faruqui v. Union of India, AIR 1995 SC 605.

(3.) Ibid., p. 641. In a dissenting judgment, S.P. Bharucha, J and A.M Ahmadi, J said that when the majority community makes a claim on the place of worship of another religion, it is not permissible for the state to ‘acquire that place of worship to preserve pubic order’. While most commentators welcomed the consequences of the judgment, for a critique of the reasoning of the majority judgment, see Rajeev Dhavan, ‘The Ayodhya Judgment: Encoding Secularism in the Law’, in Economic and Political Weekly, 26 November 1994. For details of the Babri-Masjid Ramjanambhumi controversy, see Ashghar Ali Engineer (ed.), ‘Babri-Masjid Ramjanambhumi controversy’, (Delhi: Ajanta Publication, 1990). The dangers of the state getting involved in acquiring land with ‘religious’ significance was demonstrated in the prolonged agitation in Jammu and Kashmir over the revocation of a state government order allotting forest land to the Amarnath Shrine Board.

(4.) AIR 1995 SC 641.

(5.) There is extensive literature on the question of gender, personal laws and the Uniform Civil Code. See, for example, Archana Parashar, Women and Family Law Reform in India: The Uniform Civil Code and Gender Equality (New Delhi: Sage Publications, 1992); Rina Verma Williams, Postcolonial Politics and Personal Law: Colonial Legal (p.151) Legacies and the Indian State (New Delhi: Oxford University Press, 2006); Vrinda Narain, Reclaiming the Nation: Muslim Women and the Law in India (Toronto: University of Toronto Press, 2008); Robert D. Baird, ‘Gender Implications for a Uniform Civil Code’, in Gerald Larson (ed.), Religion and Personal Law in Secular India (Bloomington: Indiana University Press, 2001).

(6.) Will Kymlicka and Wayne Norman, ‘Introduction’, in Kymlicka and Norman (ed.), Citizenship in Diverse Societies (Oxford: Oxford University Press, 2000), p. 2.

(7.) For a list, see ‘The Milky Way’, in Outlook (New Delhi), 10 March 2003.

(8.) AIR 1958 SC 731.

(9.) Ibid., p. 740.

(10.) Ibid., p. 745.

(11.) 1995 (1) SCC 197.

(12.) 2005 (8) SCC 534.

(13.) Ibid., p. 563.

(14.) Article 48-A: The State shall endeavour to protect and improve the environment and to safeguard the forests and wildlife of the country. Article 51-A: It shall be the duty of every citizen of India–

(g) to protect and improve the natural environment including forests lakes, rivers and wildlife, and to have compassion for living creatures.

(15.) 2005 (8) SCC 597.

(16.) Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945.

(17.) The Hindu Marriage Bill, Hindu Succession Bill, Hindu Minority and Guardianship Bill and Hindu Adoptions and Maintenance Bill. See Harold Levy, Indian Modernization by Legislation: The Hindu Code Bill (Ph.D. dissertation in Political Science, University of Chicago, 1973).

(18.) Flavia Agnes, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’, in Anuradha Dingwaney Needham and Rajeshwari Sunder Rajan (ed.), The Crisis of Secularism in India, p. 294.

(19.) Susanne Hoeber Rudolph and Lloyd I. Rudolph, ‘Living with Difference in India: Legal Pluralism and Legal Universalism in Historica Context’, p. 36.

(20.) Ibid., p. 35.

(21.) Ibid., p. 36.

(22.) Ibid., p. 36.

(23.) Islamic criminal law ceased to be applied after 1862, when the Criminal Procedure Code of 1859 and the Indian Penal Code of (p.152) 1860 were promulgated. The Islamic law of evidence lapsed after the Indian Evidence Act, 1872, came into effect.

(24.) Courtney Ilbert, The Government of India (London: Clarendon Press, 1898), p. 392.

(25.) Gregory C. Kozlowski, ‘Muslim Personal Law and Political Identity in Independent India’, in Baird (ed.) Religion and Law in Independent India, p. 79.

(26.) The statute says: ‘Notwithstanding any custom or usage to the contrary, in all questions (save questions relating to agricultural land) regarding intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, liam, khula and mubarat, maintenance, dower, guardianship, gifts, trust and trust properties and wakfs (other than charities and charitable institutions and charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)’. See Asaf A.A. Fyzee, Outlines of Muhammadan Law (New Delhi: Oxford University Press, 2005), p. 58.

(27.) Rudolph and Rudolph, ‘Living with Difference in India: Legal Pluralism and Legal Universalism in Historical Context’, p. 51.

(28.) John H. Mansfield, ‘The Personal Laws or a Uniform Civil Code?’ in Baird (ed.) Religion and Law in Independent India, p. 139.

(29.) B. Shiva Rao, The Framing of India's Constitution: Select Documents Vol. II, p. 89.

(30.) Ibid., p. 79.

(31.) Ibid., p. 162.

(32.) Ibid., pp. 62–3.

(33.) Constituent Assembly Debates, Vol. V, p. 271.

(34.) B. Shiva Rao, The Framing Of India's Constitution: Select Documents, Vol. IV, p. 606.

(35.) Constituent Assembly Debates, Vol. VII, p. 540.

(36.) Ibid., p. 541.

(37.) Ibid., p. 544.

(38.) Ibid., p. 546.

(39.) Ibid., p. 574.

(40.) Ibid., p. 548.

(41.) Ibid., p. 547.

(42.) Ibid., pp. 550–1.

(43.) Ibid., p. 551.

(44.) Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 140.

(p.153) (45.) Robert D. Baird, ‘Uniform Civil Code and the Secularization of Law’, in Baird, Essays in the History of Religions, p. 172.

(46.) Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 140.

(47.) Gene D. Overstreet, ‘The Hindu Code Bill’, in Lucian W. Pye (ed.), Cases in Comparative Politics: Asia (Boston: Little Brown, 1970), p. 163.

(48.) Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 356.

(49.) Quoted in Baird, ‘Uniform Civil Code and the Secularization of Law’, p. 179.

(50.) Quoted in Levy, Indian Modernization by Legislation: The Hindu Code Bill, p. 286.

(51.) Ibid., p. 286.

(52.) Ibid., p. 290.

(53.) Ibid., p. 290.

(54.) As seen in various cases discussed later like Shah Bano and Sarla Mudgal among others.

(55.) AIR 1952 Bombay 84.

(56.) Ibid., p. 86.

(57.) Ibid., p. 86.

(58.) Ibid., p. 87.

(59.) Ibid., p. 87.

(60.) Ibid., p. 87.

(61.) Ibid., p. 95.

(62.) Ibid., p. 92.

(63.) 1979 (2) SCC 316.

(64.) Section 125 of the CrPC which deals with the right to maintenance reads: (1) If any person having sufficient means neglects or refuses to maintain—(a) his wife, unable to maintain herself … a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife …, at such monthly rate not exceeding five hundred rupees in the whole …

(65.) Section 127(3) states: Where any order has been made under section 125 in favour of a woman who has been divorced by, or has obtained a divorce from, her husband, the Magistrate shall, if he is satisfied that (b) the woman has been divorced by her husband, and that she has received, whether before or after the said order, the whole of the sum which, under any customary or personal law applicable to the parties, was payable on such divorce, cancel such order,

(66.) 1979 (2) SCC 322.

(p.154) (67.) Tahir Mahmood, The Muslim Law of India (Allahabad: Law Book Co., 1982), p. 132.

(68.) AIR 1980 SC 1730.

(69.) Ibid., p. 1735.

(70.) Ibid., p. 1736.

(71.) Ibid., p. 1736.

(72.) AIR 1985 SC 946.

(73.) Ibid., p. 948.

(74.) Ibid., p. 948.

(75.) AIR 1980 SC 1736.

(76.) AIR 1985 SC 951.

(77.) Ibid., p. 952.

(78.) Ibid., p. 953.

(79.) Ibid., p. 954.

(80.) AIR 1985 SC 935.

(81.) Ibid., p. 940.

(82.) AIR 1995 SC 1531.

(83.) Ibid., p. 1532.

(84.) Ibid., p. 1539.

(85.) Ibid., p. 1538.

(86.) Ibid., p. 1540.

(87.) AIR 2003 SC 2902.

(88.) Section 118 of the Act states: ‘No man having a nephew or niece or any nearer relative shall have the power to bequeath any property to religious or charitable uses, except by a will executed not less than twelve months before his death, and deposited within six months from its execution in some place provided by law for the safe custody of the will of living persons’.

(89.) AIR 2003 SC 2902.

(90.) AIR 2003 SC 2902.

(91.) The front page headlines in The Telegraph on 24 July 2003 read: ‘SC clears statute path for common civil code’. The front page of The Times of India was more restrained: ‘SC favours common code’.

(92.) AIR 2003 SC 2902.

(94.) AIR 1996 SC 1864.

(95.) Ibid., p. 1881.

(96.) Ibid., p. 1879.

(97.) Rudolph and Rudolph, ‘Living with Difference in India’, p. 55.

(98.) Flamia Agnes, ‘The Supreme Court, the Media, and the Uniform Civil Code Debate in India’, pp. 297–8.

(p.155) (99.) Ibid., p. 298.

(100.) Madhu Kishwar, Religion at the Service of Nationalism (New Delhi: Oxford University Press, 1998), pp. 235–6.

(101.) 2001 (7) SCC 740.

(102.) The Statement of Objects and Reasons to the Bill read:

This decision [Shah Bano] has led to some controversy as to the obligation of the Muslim husband to pay maintenance to the divorced wife. Opportunity has, therefore, been taken to specify the rights which a Muslim divorced woman is entitled to at the time of divorce and to protect her interests. The Bill, accordingly, provides for the following among other things, namely:

  1. ((a)) a Muslim divorced woman shall be entitled to a reasonable and fair provision and maintenance within the period to iddat by her former husband and in case she maintains the children borne to her before or after the divorce, such reasonable provision and maintenance would be extended to a period of two years from the dates of birth of the children. She will also be entitled to mahr or dower and all the properties given to her by her relatives, friends, husband and husband's relatives …

  2. ((b)) where a Muslim divorced woman is unable to maintain herself after the period of iddat, the Magistrate is empowered to make an order for the payment of maintenance by her relatives who would be entitled to inherit her property on her death according to Muslim Law in the proportions in which they would inherit her property … But where a divorced woman has no relatives or such relatives or any one of them has not enough means to pay the shares of the defaulting relatives also do not have the means to pay the shares of the defaulting relatives the Magistrate would order the State Wakf Board to pay the maintenance ordered by him or the shares of the relatives who are unable to pay.

(103.) The Act was passed by the Rajiv Gandhi government in the wake of the Muslim backlash to the Shah Bano ruling. One of the reasons for passing the legislation was to win back Muslim confidence in the Congress, which had suffered a heavy loss in a parliamentary by-election in the Muslim dominated Kishanganj constituency. The winning candidate, Syed Shahabuddin, made the Shah Bano ruling and the victimization of the Muslims the centrepiece of his campaign. Thus, an editorial in The Times of India on 28 February 1986, said that in passing the Bill, the Congress ‘was desperately keen to win back the Muslim vote which was supposed to have been alienated partly as a result of the Shah Bano affair’.

(104.) Flavia Agnes, p. 308. There are others who have found many flaws in the Act. See, for example, Tahir Mahmood, ‘Islamic Family Law in India: Latest Developments in India’, in Chibli Mallat and Jane Connors (ed.), Islamic Family Law (London: Graham and Trotman, 1990).

(p.156) (105.) Ibid., p. 310.

(106.) 2001 (7) SCC 757–8.

(107.) Ibid., p. 760.

(109.) Ibid., p. 763.

(111.) Ibid., p. 764.

(113.) Tahir Mahmood, An Indian Civil Code and Islamic Law (Bombay: N.M. Tripathi, 1976), p. 3.

(114.) Mansfield, ‘The Personal Laws or a Uniform Civil Code?’, p. 175. Amartya Sen is right when he says religion is ‘not, and cannot be, a person's all-encompassing identity’. Amartya Sen, Identity and Violence: The Illusion of Destiny, (London: Allen Lane, 2006) p. 83. However, religion is certainly a critical component of the identity of many Indian Muslims. Political theorist William Connolly explains, ‘An identity is established in relation to a series of differences that have become socially recognized. These differences are essential to its being’. Connolly, Identity/Difference: Democratic Negotiations of Political Paradox, (Minneapolis: University of Minnesota Press, 1991), p. xiv.

(115.) Ibid., p. 175.

(116.) Subrata Mitra, ‘Constitutional Design, Democratic Vote Counting, and India's Fortuitous Multiculturalism’, Heidelberg Papers in South Asian and Comparative Politics, Working Paper No. 4 (November 2001), p. 24.

(117.) Dieter Conrad, ‘The Personal Law Question and Hindu Nationalism’, in Vasudha Dalmia and Heinrich von Stietencron (ed.), Representing Hinduism: The Construction of Religious Traditions and National Identity.

(118.) Rudolph and Rudolph, ‘Living with Difference in India’, p. 56.

(119.) In a survey done in 1996, 44.4 per cent of the total sample said that every community should be allowed to have its own laws to govern marriage and property rights as opposed to 30.4 per cent that wanted uniform civil code. See Mitra, ‘Constitutional Design, Democratic Vote Counting, and India's Fortuitous Multiculturalism’, p. 25.

(120.) Werner Menski, ‘Family Law and Uniform Civil Code in India’, in Chibli Mallat and Jane Connors (eds), Islamic Family Law, p. 293. Interestingly, the archbishop of Canterbury, Rowan Williams, caused a controversy in 2008 when he suggested some accommodation (p.157) between British law and Sharia. See ‘Defining the Limits of Exceptionalism,’ The Economist (16 February 2008).

(121.) Tahir Mahmood, Personal Laws in Crisis (New Delhi: Metropolitan, 1986), p. 93.