Counter Terrorism and Human Rights; A Legal Perspective

Abstract:

Terrorism is a global problem. It cannot be resolved without global solutions which must be based on the International legal framework. It is, however, has become the top political priority since the attack of 11^th September 2001. Moreover, the sufferings, threat and calamities were considered as the direct assault on the Fundamental values of Human Rights, freedom, democracy and the ‘Rule of Law’.

Day by day, the situation is going bad to worse. So the aspect of Human Rights are even more important and greater vigilance and watch is required for the same. On the other hand, the UN guidelines in terrorism and Human Rights are a complex one. The guidelines which were designed to serve as a realistic, pragmatic guide for the anti-terrorism policies are not taken into consideration on the ground level. Hence, the guidelines are ineffective. In such situations of crisis, we will have to consider the provisions for the elimination of terrorism.

The UN has said that the counter-terrorism measures must be balanced and must always consider the protection and preservation of human dignity, personality, freedom, peace and amity. It is, therefore, the high time to combat the means of terrorism and adopt new measures and approaches to make the society free from this malaise. This Article, we believe will provide ground realities of counter-terrorism and its aftermath.

Keywords: International legal framework, Anti-terrorism policies, United Nations, Counter-terrorism.

Introduction:

“If anyone slays a human being shall be as though he had slain all mankind; whereas, if anyone saves a life, it shall be as though he had saved the lives of all mankind.” 

                                                           - The Holy Quran (5:32)

Terrorism has emerged as new threat to the globe. The phenomenon of terrorism is as old as the civilization. It has grown with the growth of the history of mankind and conception of a state. This is one of the most important phenomena of our contemporary world. It is a phenomenon in which terrorists adapt them according to the environment in which they live. The issue of terrorism is not a problem of one country or government but rather an issue which requires cooperation among many nations. Terrorism is a politically loaded term. A terrorist can be very well perceived as a freedom fighter to another. Terrorism is defined by its method and not by its goal, which have always been of diverse character. Terrorism breeds from a perceived sense of oppression, injustice and inequality. Terrorist therefore believes that their use of violence is morally and politically justifiable.[1] So far as Human Rights are concerned, Human rights are those moral rights which are owed to each man or woman by every man or woman solely by reason of being human. Human Rights are distinguished by moral rights possessing the inherent characteristics of universality, individuality, paramountcy, practicability and enforceability.[2]

The former UN Secretary General, Kofi Annan said that “terrorism

is in itself a direct attack on human rights and the rule of law. If we sacrifice them in our

response, we are handing a victory to the terrorists.”[3]

Terrorism:

As a matter of fact, terrorists continue to threaten mankind because there is no commonly agreed definition of the term, hence no punitive action against the perpetrator is possible either by the state or international organization.[4]

It further classifies that a terrorist uses violence to cause terror for political ends. Needless to point out that both ‘terrorism’ and ‘terrorists’ are the nouns of ‘terror’ which itself is a well-known term.[5]

                                              Terrorism may be defined as an act of organized vigilance to create chaos and disorder for achieving the goals which in normal course cannot be realized within the framework of legal and constitutional institutions. It is an act of intimidation seeking to subjugate the people and the governments into acceptance of their point of view and also the methodology to propagate it.[6]

The nature of terrorism is political so is its objective. Its political identity could be analyzed by various issues involved in terrorism like objective, methods, and the organizational structure. The objective of a terrorist group is invariably political such as autonomy or secession to acquire political power. Social and economic issues are not primary to them. They believe that once the political power comes in their hand, social and economic reform would follow by itself. Thus, to acquire political power is their sole aim. Not economic prosperity. Their target of violence is also related to politics as they aim to kill political leaders and destroy political institutions to malign credibility of the government concerned.[7]

Counter Terrorism:

Just as terrorism impacts on human rights and the functioning of society, so too can measures adopted by States to counter terrorism. As mentioned above, because terrorism has a serious impact on a range of fundamental human rights, States have not only a right but a duty to take effective counter-terrorism measures. Effective counter-terrorism measures and the protection of human rights are complementary and mutually reinforcing objectives which must be pursued together as part of States’ duty to protect individuals within their jurisdiction.

Human Rights:

According to traditional concept of international law, human rights are protected and violated by the State. Generally speaking, human rights involve obligations of states towards individuals. The whole movement for the protection of human rights arose as an attempt to redress the balance between the power of the state to impose duties on the individuals and the powerlessness of the individuals to ensure correlative respect for their rights. The issue of the responsibility of non-state actors as perpetrators of human rights abuses has thus become important. In that context it is being pointed out that it was somewhat ironic to talk about the enjoyment of human rights in conditions of massive killings by terrorist groups.[8]

So far as the development of human rights are concerned, prior to 1945 the matter of human rights was between a nation and persons within its territory as an issue of local and domestic jurisdiction which was beyond the hands of international authority and power. The issue of human rights was first solved by the Charter of United Nations (1^st international instrument). In 1948, the UN declared the universal declaration of human rights which imposed upon the new established organization a fundamental obligation to promote human rights and fundamental freedom among all people without regards to race, sex, languages, religion and country. The UN celebrates human rights celebrates with ritualistic regularity. The declaration of human rights by UN was widely recognized as the universal declaration of human rights on 10^th Dec. 1948 as a common standard of achievement for all people and all nations. The declaration being merely a resolution of the United Nations, was not legally binding. In order to give legal form to the provisions of declaration, normative cognizance were suggested for adoption in future. Consequently between 1951 and 1968, the UN adopted 15 conventions, 2 covenants, 2 protocols, 1 optional protocol and one declaration. Of this, 21 instruments, the 2 covenants and the optional protocol were designed to protect human rights.[9]

Terrorism, Law and Judiciary:

Disregard and contempt of human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of the World War I which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaim as the highest aspirations of the common people.[10] Many international covenants on human rights and national Constitutions guarantee the right to life, liberty and security of the person.[11]

International conventions on terrorism:

Broadly speaking there are two types of international convention on terrorism.

·         There are truly international conventions which are open to ratification to all states. There are thirteen international conventions at present.

·         Second there are multilateral terrorist conventions, such as council of Europe convention on the prevention of terrorism (2006); the Inter-American convention against terrorism (2002); and the organization of African union convention on the prevention and combating of terrorism (1999) and protocol (2004).[12]

Conventions which are open to ratification by all states:

The following list identifies the major terrorist conventions open to ratification by all states. A brief summary is provided in each case of the principal provisions in each instrument. Most of the conventions provide that parties must establish criminal jurisdiction over offenders. (e.g., the state where the offence takes place, or some cases the state of nationality of the perpetrator or victim, or in the case of an aircraft, the state of registration.

Some of the important conventions for combating international terrorism are mentioned below;

1.      1993 convention on offences and certain other acts committed on board aircraft ( Aircraft convention)

2.      1970 Convention for the Suppression of Unlawful Seizure of Aircraft ( Unlawful Seizure Convention)

3.      1971 convention for the suppression of the unlawful acts against the safety of civil aviation ( civil aviation convention)

4.      1973 Convention on the prevention and punishment of crimes against internationally protected persons ( diplomatic agents convention)

5.      1979 international convention against the taking of hostages (hostages convention)

6.      1980 convention on the physical protection nuclear material ( nuclear materials convention)[13]

7.      The 1971 convention to prevent and punish the acts of terrorism taking the form of crimes against persons and related extortion that are of international significance.[14]

Experience shows that is government who has committed the maximum number of acts violating the human rights of citizens worldwide. History proves that people in power have arbitrarily and whoever exposes then runs the risk of state power being used against them.

It is the need of the hour to sit together and think together and try to tackle the terrorism as universal phenomenon.

That the sale of arms by international companies to non-state entities shall be completely banned;

That the state shall not render any kind of support to sub-nationalist tendencies in another state;

That if the international concern is not forthcoming, then the third world countries should strive hard to enter into bilateral and multilateral agreements to counter terrorism, e.g., the bilateral treaty entered into between India and Sri Lanka to fight terrorism.

Conclusion:

The United Nations Global Counter-Terrorism Strategy was adopted by the General Assembly on 8 September 2006. This marks the first time that Member States have agreed to a comprehensive, global strategic framework to counter terrorism. The strategy spells out concrete measures for Member States to take individually as well as collectively to: address the conditions conducive to the spread of terrorism, prevent and combat terrorism and strengthen their individual and collective capacity to do so, and protect human rights and uphold the rule of law while countering terrorism. The strategy calls for Member States to work with the United Nations system to implement the provisions of the plan of action contained in the strategy and at the same time calls for United Nations entities to assist Member States in their efforts. The United Nations departments, programs, funds and agencies have been taking actions in a number of areas in line with the strategy both in their individual capacity and through joint efforts in the framework of the Counter-Terrorism Implementation Task Force (CTITF).

The questions which quite often arise are that how does terrorism come into existence? Who are the terrorists? How to eradicate and combat terrorism? How to get rid of this malaise? How to provide human rights to the fullest extent? To find answers to these questions are sine qua non. This will require an honest and sincere analysis of the situation to find out a peaceful solution for this dreadful and chronic disease against humanity. By waging a war, nations can be conquered but not peace, amity, unity, freedom and brotherhood. Terrorists could be killed but not terrorism and destruction. It is, therefore, not force that eradicates terrorism from the society. It is justice, compassion, equality, egalitarian society, love and affection across races that will eradicate terror and terrorism. It is simplicity, help, love, mutual understanding and respect for their fellow human beings for their very existence. Let’s join our hands together and leave no stone unturned in the endeavor of making this society free from all barriers, hindrances and making this world a better and peaceful place to live for now and for generations to come.

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[1] Martha Renshaw, Terrorism, Legitimacy and Power: The consequences of political violence 33-34 (Wasleyan University Press, Middletown, 1983)

[2] Macfarlance. L. J., The Theory and Practice of Human Rights 42 (Dartmouth Publishing Co Ltd, London,  1^st Ed., 1985)

[3] Kofi Annan,  A Global Strategy for Fighting Terrorism‘, Keynote address to the Closing Plenary of the International Summit on Democracy, Terrorism and Security on March 10, 2005 available at<http://english.safedemocracy.

org/keynotes/a-global-strategy-for-fighting-terrorism.html >(accessed on 21st February 2014)

[4] Prabha, Kshitij, Terrorism- An Instrument of Foreign Policy 13 (South Asian Publishers, New Delhi, 2000)

[5] Sehgal, B.P., Global Terrorism- Socio- Politico and Legal Dimensions 59 (Deep and Deep Publications, New Delhi, 1995)

[6] Sadhu, A.N. “Evolution of Terrorism in Ibid B.P. Singh Sehgal, p.11

 [7] Lester A Sobel, Political Terrorism, Vol. 2,(New York: facts on File, 1978), p.2-3

[8] Narang, A.S., Terrorism and Human Rights, A.S. Narang Pramila Srivastava, Terrorism: The Global Perspective 178-179 (Kanishka Publishers & Distributors, New Delhi, 2001)

[9] Singh, Gurcharan, State Terrorism and Human Rights & Sehgal B.P. Singh, Global Terrorism-Socio-Politico and Legal Dimensions 186 (Deep and Deep Publications, New Delhi, 1995)

[10] Preamble to the Universal Declaration of Human Rights, 1948

[11] Like Article 3 of the Universal Declaration of Human Rights, 5^th and 4^th amendments to US constitution and Article 21 of the Indian Constitution

[12] Helen Duffy, The War on Terror and the Framework of International Law  (Cambridge University Press, Cambridge, 2005)

[13] Ibid.

[14] Signed at Washington on February 2, 1971 by columbium, Costa Rice, Dominican Republic Jamaica, Honduras, Mexico, Nicaragua, Panama, El – Salvadore, Trinidad and Tobago- USA, Uruguay and Venezuela  

The Uniform Civil Code and The Muslim Personal Law; A Critical Appraisal

Introduction

Ours is a country of ‘federation of faith’ founded on the three well known principles, viz. Democracy, Secularism and Socialism where the state does not have any religion itself but every religion has the freedom to profess, practice and propagate their own religion. Meaning thereby, every religion is equal before the State. Hence, State is neutral in the matters of religion. This principle of religion has been enshrined in article 25 (1) of the constitution which is essential for the religious communities as the Indians are. To ensure the religious linguistic, educational, and social identity, our constitution provides special provisions for the protection of the Indian minorities, and there is no doubt that Indian Muslims are the largest minorities in India. It cannot be denied that nowadays the argument of change in the Muslim personal laws in terms of triple Talaq, inheritance, succession, are nothing but to cause a change in Quran, Hadith, and the principles of Islam. It is like slaughtering the principles of Secularism which is the backbone of our constitutional philosophy.

Historical Background

There have been codes since very ancient times. A general movement towards codification marked 19^th  century. The important ancient codes are Jewish code, the Chinese code, the Code of Khammu Rabi, etc. However, in medieval times, we do not find any code due to dominance of the  Church. In the beginning of 19^th century Nipoleon gave his code which is called ‘Nepoleon Code’. This is considered as the land mark one in the history of codification. In India, the era of codification began with the enactment of the Indian charter Act, 1933 which declare a general judicial system and a body of law was established in India applicable to all classes. The main purpose of classification was to achieve uniformity and certainty. As Lord Macaulay observed:

 “We must pay respect to the feelings generated by differences of religion, of nation and caste. We must assimilate the different systems of law without wounding those feelings. Our principle is simply this- uniformity where you can have it- diversity where you can have it but in all cases certainty.”

 It is to be remembered that when article 44 was being put forth for debate in the constituent assembly, the chief framer Dr. B.R Ambedkar pointed out “the Muslims unnecessarily read too much in Article 44”. He further declared that; “No government can exercise the legislature power in such a manner as to provoke the Muslim community to rise in rebellion, I think, it would be a mad government if it did so”. In essence, uniformity of law in a country as diverse as India is not only undesirable but also impossible. How is It possible to have uniformity when there are eleven or twelve legislature bodies entitled to legislate on a subject like marriage, divorce and succession according to the requirements of their own people and their own circumstances.

Religious Freedom and the Muslim Personal Law

It is noteworthy that India has a composite population. Existence of diversified religions, cultural and linguistic group show the absence of unity from a long span of time. These are followers of Islam, Hinduism, Budhism, Jainism, and Sikhism, etc. Some of the groups are numerically small but they still want to preserve their own distinctive identity, religion, language, culture and so on. They, therefore, in the constitution termed as “minorities”.  After serious observation, the framers of the constitution  not only provided sufficient guarantees to safeguard the interest of the religions of minorities for infusing confidence and a sense of security, but also adopted a special group of provisions i.e., Article 25 to 28.

Situations have somehow so developed that whenever personal law is mentioned one’s mind connect it to the personal law of Muslims which is commonly termed as the Muslim Personal Law. From the concept of Muslim Personal Law- social, cultural, moral and religious interest of Muslim community are evolved and determined. Muslim personal, in fact, is the essential manifestation of the Islamic spirit and ethical approach to living. Religion and culture of Muslim community are in Quran and Hadith and personal law is the reflection of the same. Religious freedom and cultural freedom are ensured under Articles 25, 26 and 29 of the constitution.

 Since the root of the Muslim personal law is in the primary sources of Shariat so its religious parameter aspects cannot be ignored. Indian Muslims are empowered to profess, practice and propagate their own religion as guaranteed under article 25 of the constitution. In other words, they have been given the right to embrace any religion, not only to embrace it but also to practice it and not only to practice it but also to try to convert others to their own religions. One must keep in the mind that the basis of Muslim personal law is derived from the Quran, Hadith, Ijma, Qayas, Ijtihad and Fatwas of learned jurists and Faqeeh. It could be said precisely that law and religion are interwoven and sharia and religion are synonyms. Therefore, what is sharia is religion and vice versa. Religious faith is meaningless unless practiced according to the shariat.

 Muslim personal law is the part and parcel of their religious faith revealed by Almighty Allah in Quran, expounded by the Prophet Mohammad (PBUH), collected, codified and interpreted by learned Imams responsible for different school of Shariah. The proclamation of Almighty is worldwide known.

“Today I have completed your religion (Islam) and bestowed finally my bounties”.

“Oh believer, accept Islam in totality and do not follow Satan”.

Conclusion

The secular state must not interfere with the personal laws of the people which is an essential and integral part of their religions, faith, culture, moral ethics and way of life. Even the British Government did not endeavor to scrap or touch upon the laws. The Mughals followed the policy of non- interference with the personal laws of Indians. Those who are of the views that ‘Uniform Civil Code’ is unity and integrity of the nation probably tending to forget that the rich heritage of India and historical factors responsible for strong nationalism even in the present prevalent diversities on the basis of religion, culture, language and script, etc. we, therefore, would be able say that India is a land of diversity in its true sense.

The Muslim Personal Law; What Shall We Do Now? || Nehal Ahmad Nadwi

Introduction

Muslim law in India generally means: “that part of Islamic civil law which is applied to Muslims as a personal law”[1]. The term personal law has wide scope and covers marriage and its dissolution, family rights and obligations, testamentary and intestate successions, personal property, religious and charitable endowments and pre-emption. Sharia law, locally described as Muslim Personal Law, governs the above and like matters relating to Muslim community in India.[2] Islamic Personal Law in India is governed by the provisions of Muslim Personal Law (Shariat) Application Act, 1937. The major portion of Muslim Law in India remains without codification. To some extent, Muslim Personal Law has been supplemented with and modified by the state Legislature and the Courts. Judiciary has also played an important role in the interpretation of Muslim Law as per the sources of Muslim Law. In this paper, an attempt has been made to reinterpret the Muslim personal Laws in accordance with the changes in the society on accounts of public interest at large.

The relevance of Muslim Law in the contemporary world

The importance of Muslim law can be estimated from the fact that it is applicable to some 15 crore Muslims in India, 12 crore in Pakistan, 13 crore in Bangladesh. Muslims in some 20 countries of Asia, Africa and Europe, follow Muslim Law. In other words, one sixth of the total human population is following Islam. If there is anything which is considered as the characteristic and foundation of to that religion, it is Shariah, or Muslim Law.

Islamic law gradually spread with expansion of the Ottoman Empire in Asia, Africa and Europe and under the influence of the Delhi Sultan and Mughal in the Indian Subcontinent.

“By the end of the medieval ages, Islamic legal system stood stress and strains of political vicissitudes and socio-economic upheavals in several parts of the world. The repercussions of the two World Wars, the fall of the Ottoman empire and abolition of the Caliphate in Turkey, colonial expansion Great of Britain and France, emergence of small sovereign states in West Asia resulting into the growth of nationalism, the rise of communism in Central Asia and some parts of Europe ceded by the Ottoman rulers, the social reform movements in Egypt, Indonesia and Iran, independence and partition of the Indian subcontinent and numerous other events of history led to revolutionary changes in the jurisdiction and scope of the traditional law of Islam.”[3]

Muslim personal law, as we understand it, is originally based upon and derived from the principles and injunctions enshrined in the Quran and Sunnah. It is clearly this character of Muslim personal law which distinguishes it from the secular laws and at the same time from the personal laws of the other religious communities. The Personal laws of other communities are largely based on the customs and traditions which can be changed depending upon the changes in human wisdom and custom. On the other hand, the Quran and Sunnah, on which the Muslim personal law is based, are unalterable.

The Muslim personal law does not contain only the injunctions of Quran and Sunnah, but it also includes the applications, to one’s own circumstances, of the principles articulated therein. The Quran does not give specific instructions applicable to each cross-road of social life. It gives specific rules where it deems that the situations have some important ingredients of everlasting character, which is undoubtedly based on the enduring human nature.

The Muslim Personal Law and Reform

Reform of personal law nearly always poses a serious problem for any government particularly if religion plays a part. In our country for various reasons, reform of Islamic personal law has been difficult at the best of time it has become non-existent, although there is strong public opinion that the progressive ideas in keeping with the march of time should find a place in the social life of Muslims. Today the doctrine of Taqlid seems to grip Islamic jurisprudence. The Munir commission in Pakistan, for instance, was told by the president of Jamiat Ualam that there was no need for reform as there was no question for which an appropriate could not be found in Quran and hadith. One should remember the hadith which was asked by the Prophet Mohammad (PBUH) TO Mouadh bi Jabal when he was appointed the Chief Justice of Yemen.

Fortunately the desire to reform has proved stronger than resistance to it. Opposing to Taqlid and incitement to Ijtihad has been the chief motivating force. Even in 13^th century Imam ibn Taymiyya ( d.1283 ), a hanbali scholar claimed the right to individual Ijtihad. Mohammad Abduh, an Egyptian reformer, (1849-1950) and his master Jalaluddin Afghani (1839-1897) opposed Taqlid and claimed to investigate the source of law and to think themselves. In India, Ameer Ali, Iqbal and even our founder Sir Syed Ahmed khan opposed Taqlid and claimed the right of independent thinking.[4]

The attributes of Islam lend to this religion built-in flexibility and its inherent quality of applicability to different times and places. Hence, Muslim personal law, in so far as the applications of these principles, values and ideals in a particular time is concerned, is certainly open to reconsideration, revision; provided that the roots are not ignored, circumvented, or indirectly undermined. In so far as the law is based on specific rules of conduct, i.e., on the crystal clear textual injunctions, it cannot be changed.

In addition to this, it should also be emphasized that the Islamic law stands for enforcements, by legal injunctions, of the socio-ethical objectives of an Islamic society. To judge the provisions of Islamic law divorced from these objectives is not only unscientific, but also self-defeating. These are the very essence of Muslim religious life, and to destroy these laws is tantamount to destroying the religious life.

Why Muslim community resents any change in its personal law and scoffs all attempts directed to invite its attention to a crying need of the time. The answer to this question is not simple as the misconceptions are arising from the two different factors. First, there is tendency to denigrate the Islamic Shariah as a whole while criticizing the Muslim personal law as enforced in India. It should be kept in mind that the Muslim personal law as enforced in this country exhibits, in several aspects, a failure to understand the true Islamic law. Thus, the shortcomings in Muslim personal law as enforced in this country does not mean defect in Islamic legal injunctions as such. Moreover, a very little comparative study of Shariah and modern law has been made to substantiate the claim that the provisions of the former are out of tune with modern ideas of justice and equality. Secondly, some of those who have been crying for change in Muslim Personal law are not genuinely interested in the welfare of the community as such. They have invariably proved that their chief target is the destruction of the very fabric of cultural existence of Muslims and, to that end, they most of the time pretend as true secularists and well-wishers of the Muslims by citing artificial or fanciful injustices arising from the Muslim personal law.

In a secular democracy it is necessary to inspire confidence among the people, to convince them of the need of change, if any, and to reckon with their sentiments duly. Sadly enough, that process has never been initiated in India, as the Muslims are concerned. The groups of pseudo-intellectuals of the Muslim community are like a rudderless boat. It is, therefore, important to inspire confidence among the Muslims by talking to them through those whom they really recognize as their leaders.

Against the backdrop of the claim of inflexibility of Muslim Law, it is interesting to note the following observations of A.A.A. Faizee-

I do revere the great interpreters of Islam, but I crave their indulgence if I cannot share their beliefs, for belief is at bottom a matter of individual conscience. I cannot agree that they are the keepers of my conscience. It is the duty of the scholars of each age to interpret the faith of Islam in their own times.[5]

In the pioneering research work in the Family Law Reform in the Muslim World, Justice Tahir Mahmood enumerates the countries; these are Turkey, Albania, Tanzania, Zanjibar, Kenya, Philippines and Soviet Union. Those which have reformed it are Turkey under ottoman Empire, Labanon, Egypt, Sudan, Jordan, Syria, Tunisia, Morocco, Brunei, Iran, Iraq, Pakistan, Malaysia and Indonesia (countries with Muslim majority), Cyprus, Israel, Singapore, Ceylon and India.[6]

What shall we do now?

1.      There is a core of Muslim personal law which will never be changed. This is irreducible minimum is provided by the express injunctions enshrined In Quran and sunnah. Of course, in this limited sphere also, whenever the texts permit their reinterpretation and adaptation in accordance with the new socio-economic circumstances, it is allowed.

2.      All alterations in present Muslim personal law have to be within the framework of the general principles of Islam, its values and ideals. Elaboration and reinterpretation of

Islamic legal rules in accordance with new experiences are permissible.

3.      Changes in Muslim personal law should be made only on account of genuine needs and grievances, if any. It must be assured that these needs are real and not originating from one’s cherished ideas about progress and modernism.

4.      There are numerous schools of Islamic Fiqh. The solutions to problems that have necessitated a change in the Muslim personal law, as applied in India, should first be sought within the schools of Islamic legal thought. Such a search may lead to abandonment of some hanafi provisions dominant in India, or their partial modifications, or a judicious combination of the principles of various schools. Most of the Muslim countries have adopted this method of development of their personal law. A different method of reform should be adopted only in regard to those problems which cannot be solved by this method.

5.       The only natural, intelligent and democratic way to bring about the required changes is that the Ulama and experts in modern sciences drawn from the Muslim community should sit together and thrash out the relevant issues. Any consensus that emerges out of such joint deliberations of the ulama and modern lawyers should be acceptable.

                                                                                   

Conclusion

The Muslim personal law is a part of Islamic religion, based upon its enduring and everlasting values. Its distinctive nature must be sympathetically understood and appreciated. It is however amply clear that reform is not impossible. If the injunctions of Quran and Hadith are before us, it is possible to make changes by legislation in a widening area. The latter-day writers like Ameer Ali, Iqbal and reformers like Abduh maintained the possibility of reform. The lead is coming from the Muslim countries and it is to be hoped that in course of time the same measures will be introduced in India too.

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[1] Ahmed Aquil, Mohammedan Law, (2000) Central Law Agency, Allahabad. At 3.

[2] Fyzee.

 [3] Tahir Mahmood, Family Law Reform in the Muslim World at p.2

[4] Mulla, Principles of Mohammadan Law, revised byProf. Iqbal Ali Khan, p.30-31 edi. 21^st,Pub. Lexis Nexis.

[5] Faizee in A modern Approach to Islam (1963) as cited by justice Mahmood in his A.A.A Faizee,s case in the Muhammadan Law of India, Pakistan and Bangladesh (2^nd edn., 2005 Oxford university Press, New Delhi) at pp. 7-8.

[6] Tahir Mahmood, Family Law Reform in the Muslim World, ILI (1972) at p. 3