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  • Raajveer Singh Bisht

The Sanctity of Law

Can Law in India be deemed Holy and thereby untouchable?


Background:

A lawyer and BJP ‘leader’ Ashwini Kumar Updhyay filed a Public Interest Litigation in which he has pleaded to the court to ban the Islamic practice of polygamy, nikah halala Sharia Courts etc. Filing a countering Intervention Application to this PIL the All India Muslim Personal Law Board has raised two arguments which are;


1. That previous decisions have laid down judicial precedents whereby only a member of the religious denomination in question may challenge such religious personal laws that too to the extent of the violation of their fundamental rights.

2. That Mohammadan Law (or Islamic Law) is founded on the Holy Quran and thereby is to be considered to be beyond the scope of intervention of the Court and can also not be considered to be within the purview of laws of force as Article 13. Thereby in conclusion rendering it beyond the test of validity based on Part III of the Indian Constitution.

It is the second argument which caught my eye. For in a secular nation it is surprising to see legal practitioners argue for the sanctity of holy law and that to be considered beyond the scope of the State itself. It is even more surprising to see the defence of such a dogmatic and fundamentalist point of view by many who may label themselves as liberal and progressive.


However we also cannot go about this issue with only a rhetorical point of view. Keeping this in mind this article plans to carefully consider the argument based on 2 aspects; legality and the principle of secularism.


Laws of Force (Article 13):

Article 13 of the Constitution says:


Laws inconsistent with or in derogation of the fundamental rights


(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void


(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void


(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule, regulation, notification, custom or usages having in the territory of India the force of law; laws in force includes laws passed or made by Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas


(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368 Right of Equality


The main argumentation being made by the AIMPLB is that Islamic Law is from the Holy Quran and the Hadiths which predate the Constitution of India and since the Holy Quran and the Hadiths are not made by “competent authority in the territory of India” laws based on them cannot be challenged.


Legality:


However this is where the Historical context of their argument collapses. While it may be easy for some to say that Islamic Personal Law in India is sourced from the Holy Quran, the Holy Quran has no actual legal basis within the State. The reason why these laws are still followed are also not based on the teachings of the Quran but instead on:


The Muslim Personal Law (Shariat) Application Act of 1937


This nifty piece of legal fundamentalism was passed under the British Raj and by the Indian Central Government at the time. Indeed it is the interpretation of the AIMPLB which was established in 1973 on which Muslim Personal Law (or at least elements of it like Polygamy) function.

Thus it is completely faulty to argue that these laws cannot be challenged in the Court.


Secularism:


In this blog of mine I have previously explored secularism and its many different principles in various articles however today we must look at secularism purely from the point of view of how it exists in India today.


Secular ideals in India simply stand for the lack of discrimination between people on the basis of their religion. This discrimination usually finds itself manifest as discrimination between people of different faiths. However what happens when people are discriminated against by people of their own faiths?


Muslim Personal Law for example clearly sets out that women are to receive half of the property that their brothers receive upon the deaths of their parents. Muslim Personal Law allows for Polygamy only from the advantageous position of the man. In this case can religion be allowed to discriminate between people? Are we to allow the subservient position of women to continue simply for the convenience of faith?


Indeed at the very end we are to simply ask ourselves whether any religion in India is allowed to discriminate amongst people be it of their own flock or those of other faiths.


Conclusion:


I have doubts as to the actual intent of the petitioner but that pales in comparison to the actual good that might come from this PIL. Indeed, as a supporter for a Uniform Civil Code based on the principles of secularism and the enlightenment rather than the dogmatic and conservative views of uneducated and ignorant people of eras that have long since passed and the sun, set on the validity of their opinions. We must move forward and abandon this half-baked charade of secularism that we have allowed ourselves to move towards, led by the greedy and self-serving motivations of those who ask to be our leaders. This is perhaps the only time in Indian history that the implementation of long ignored principle of secularism is possible but it is only if sufficient pressure is put on those in power to abandon their current games and to focus more on the development of Indian society.


How long can we betray the very principle on which we pride ourselves?


How long can we allow the slavery of the mind and the senses by the books and tomes of old.

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