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.