He wanted modification in Shariat Act 1937 so that it could be applied to all Muslims and to the entire territory of India. He wanted codification of Islamic law in India also as it has been done in 28 Muslim countries. But he has been misunderstood and opposed by Ulema. Former Chairman of National Commission for Minorities and present Member of Law Commission of India Dr. Tahir Mahmood talks exclusively on the issue with Mumtaz Alam Falahi of TwoCircles.net.
What constitutes the Muslim Personal Law (Shariat) Application Act 1937 (popularly known as the Shariat Act)?
The Shariat Act 1937 is a small law with only three sections. First section says: the name of this Act is Shariat Act, second section says: notwithstanding any contrary custom, in the matters of marriage, divorce, inheritance, succession etc. Muslim law will be applied to Muslims, the third section says: in respect of three particular matters – will, legacy and adoption — Muslim law will be applied only if a person desires that Muslim law should be applied and for that he has to file a declaration with the government. Otherwise he will be governed by customs.
One should not confuse with the name of the Act. The Shariat Act does not contain any Islamic law, not a single word on Islamic law. There is no codified Islamic law. It does not contain a single word on any substantive issue of Muslim law. It does not define Muslim law. There is no substantive provision under this law. It only tells the court in what subjects they have to apply Muslim law to the Muslims.
Is the Shariat Act 1937 applicable to all Muslims and to the entire territory of India?
No. In many parts of the country like Jammu and Kashmir, Lakshadeep (even though the two are Muslim dominated states), Goa, Daman and Diu, and Pondicherry, the Shariat Act cannot be applied. They have their own traditions and customs. Besides, there are separate laws for some Muslim sects like Khojas, Bohras, Moplas, Memons, Sunni Bohras etc. They have separate laws enacted by British local legislatures.
Tahir Mahmood
Given the shortcomings and lacuna in the Shariat Act 1937, what did your proposal to the Law Commission of India consist of?
I had just three points in my proposal: modify the Shariat Act; pave the way that it can be applied to all of India; and to all Muslims irrespective of sects and groups. My point is that Shariat Act should be modified saying that all Muslims wherever they live in India will be governed by Muslim law.
Of course, I am in favour of codification of Muslim law. Not one, 28 Islamic countries have codified Islamic law in practice. I have been in support of family law reform for long.
Hindu law is codified, Christian law is codified, Parsi law is codified. What is not codified in India is Muslim law. There are no Acts, no codes, then imagine what the court will do. The court is not going to read Hidaya, Quran or any of the books of fiqh. They read a book by a Parsi author written in 17th century. Every court looks at that book. And 75% content of that book is un-Islamic. There are several court judgments which are directly against Quran but are considered Muslim personal law in this country.
But your proposal was opposed by some Ulema and Islamic scholars.
They think that I had suggested that all Muslims — Shia, Sunni, Hanafi, Shafai — all should be governed by one Muslim law which may be Hanafi law. They just saw a misleading headline in Hindustan Times. The report in the paper was correct. The heading they put was: Law Commission considering Muslim law reform.
Our Ulema are allergic to the word of reform and they are allergic to the word of uniformity. Reform and uniform both are just anathema to them. They didn’t care to read the report. My point was that Muslim law should be applied to all Muslims wherever they live in the country. Every Hindu is governed by Hindu law, why not all Muslims should be governed by Muslim law? What is the point that in matter of bequests Muslims will not be governed by Muslim law and in matter of succession they will be governed by Muslim law. I was talking about uniformity in respect of scope of Muslim law. I did not talk about any school of Islamic thought in the proposal. They thought I am recommending that one single law should be applied to all Muslims.
How have Muslim countries with followers of different schools of thought codified and enacted Islamic laws?
There are eight schools of Islamic law. Muslim law is not monolithic, it is not uniform. All of the schools are right, equally recognized and equally respected. Muslim countries have picked and chose from these laws. They chose what is most conducive to present conditions, codified them and enacted them in law. They are 100% Islamic. They have not reinterpreted Quran or Hadith. They have adopted technique of picking and choosing from the various Islamic laws. These laws are applied to every Muslim whatever school of Islamic thought he belongs to.
Who opposed your proposal?
The Muslim Personal Law Board sent a letter to Union Law Minister and Law Commission of India Chairman. They didn’t bother to talk to me. They didn’t ask me to clarify. Not only this, they went the town with the press. They said my proposal will pave the way for uniform civil code. On the same day I issued a clarification to the press. How can they blame me? I had defended Shariat in the Shah Bano case. I have always opposed to uniform civil code. I have a book “Uniform Civil Code: Fictions and Facts.” In that book I have shattered the argument that there should be a uniform civil code. My line of thinking is that the Constitution of India does not direct the government to enact uniform civil code.
But the Directive Principle of State has a desire for uniform civil code.
No. It is misunderstood. There is a provision, but it has been misunderstood by all. It just says that in future when the government makes family laws it should try to make them uniform. It means whatever changes or amendments in respect of family laws are made, an attempt will be made to keep them uniform.
Whenever there is a Muslim family case in court we hear about uniform civil code, this does not occur when family cases of other communities are at the centre?
The provision of uniform civil code mentioned in the Article 44 is the most misunderstood provision of the Constitution. It has been misunderstood by everybody, judiciary included. I wrote the book Uniform Civil Code: Fictions and Facts in response to a judgment by Justice Kuldip Singh. I shattered him to pieces on the issue.
People think that Muslims either had to accept uniform civil code or they have to continue with whatever outdated law they have. They have no choice. No third option. They know that our Ulema and religious people will never agree to any reform, so there is no other option. That’s why no government has been interested in the issue.