‘Majoritarian morality must not supersede personal law’’: Muslim Personal Law Board’s Response to Law Commission

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‘Majoritarian morality must not supersede personal law’’: Muslim Personal Law Board’s Response to Law Commission

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New Delhi: On July 5th, the All India Muslim Personal Law Board (AIMPLB) submitted its reply to the Law Commission of India, reiterating its continued resistance to any move on UCC. It emphasized the need for “majoritarian morality” to respect minority communities’ rights to freedom of religion.

“Majoritarian morality must not supersede personal law, religious freedom, and minority rights in the name of a code that remains an enigma,” underlines the 100-page document.

“The Goa Civil Code, as detailed out, is packed with diversity; even the Constitution of India has different provisions for different classes of persons and also for different regions. Even the Code of Civil Procedure does not apply uniformly across the entire territory of India. Even the Hindu Marriage Act, specifically framed to regulate the personal laws of one community, does not apply uniformly to all the Hindus in India, as stated already above. The Special Marriage Act takes the parties to the Hindu Succession Act and dilutes customary laws regarding prohibited degrees of marriage. These examples demonstrate just the tip of the iceberg,” it further highlights.

Dr. S. Q. R. Ilyas, AIMPLB spokesperson told Islamic Voice that, “Our response to the Law Commission on UCC is based on 5 points which include- I) Preliminary Issue, II) Response and Report of 21st Law Commission, III) Uniform Civil Code, IV) Existing Civil Laws, V) Conclusion.”

“In the representation, we have answered how the justifications being given by some people and the political parties in favour of the UCC are useless,” Dr. Ilyas said.

The Muslim Board argued that the Constitution itself is not uniform since it secures special rights for certain groups.

“The most crucial document of our nation, the Constitution of India, is itself not uniform in nature, prudently and with the intention to keep the country united. Different treatments, accommodations, and adjustments are the nature of our Constitution. Different territories of the nation have been given different treatments. Different communities have been given different rights. Different religions have been given different accommodations,” it said.

It also highlighted the fact that, unlike other personal laws, the Muslim personal law is “directly derived from the Holy Quran and Sunnah (Islamic laws), and this aspect is linked with their identity,” Dr. Ilyas said.

“Muslims in India will not be agreeable to losing this identity for which there is space within the Constitutional framework of our country. National integrity, safety, security, and fraternity are best preserved and maintained if we maintain the diversity of our country by permitting minorities and tribal communities to be governed by their own personal laws,” it said.

In the first part of the Representation, the Board has detailed the preliminary objections stating that the content set out in the captioned Notice is vague, too general, and unclear.

“The terms for the suggestions to be invited are missing. It appears that such a large issue has been floated in the public domain to seek a referendum as to whether the reaction of the general public also reaches the Commission in either equally vague terms or in a ‘yes’ or ‘no’. We are making this submission for multiple reasons because this issue being a purely legal issue has also been fodder for politics and consumption of media-driven propaganda. This issue becomes further important because this Commission’s predecessor had examined the very same issue and reached a conclusion that Uniform Civil Code is neither necessary nor desirable.”

In the second part of the Representation, the Board has pointed out and annexed the detailed Response of AIMPLB to the 21st Law Commission on the same issue along with other communications.

The third part delves into detail on the country’s pluralistic principles, vast diversity, and multiculturalism.

The fourth part deals with the existing legal paradigm.
a) Are the existing general/uniform family laws truly uniform?
b) Are the existing codified community-based personal laws uniform?”

Then the draft analyzed the existing civil laws and came to the conclusion that existing general/uniform family laws are not truly uniform, even existing codified community-based laws are also not uniform…It is stated that the Special Marriage Act(SMA), the closest and continuing model of uniform family law in India, is not ‘uniform’. SMA not only has been designed as per the majoritarian morality but provides exceptions for customary laws.

The same is reflected below:
Special Marriage Act, 1954
[S. 19-21A]

Hindu Succession Act, 1956
[Sections 3(b), (d), 7(3)] take us to un-codified customs of Hindus
Special Marriage Act, 1954
[S.27 (1A) (ii)]

Hindu Adoption and Maintenance Act, 1956
[(S 3(a) r/w 10(iii)]

Take us to un-codified customs of Hindus

In conclusion, the Board has submitted:
“What is a Uniform Civil Code? The answer seems simple but is entrenched with complexities. These complexities were realized by the Constituent Assembly back in 1949 when Uniform Civil Code was debated. A single-day debate witnessed strong opposition from the Muslim community. It is relevant to remember the clarification of Dr. Ambedkar at the end of the debate, “It is perfectly possible that the future parliament may make a provision by way of making a beginning that the Code shall apply only to those who make a declaration that they are prepared to be bound by it, so that in the initial stage the application of the Code may be purely voluntary.”

Meanwhile, Muslim Board leadership also started an outreach program with other stakeholders. Dr. Ilyas said we got a positive response from Sikh and tribal leaders on the issue and had a good meeting with Congress President Mallikarjun Kharge and other leaders.