Jamiat deposited Rs 53,000 on behalf of eight prisoners — all non-Muslims — setting a “humanitarian example at a time when the country is reeling under the communal tension.”

The function was organised in Jail No. 2 of Tihar on February 2, 2018. Ajay Kashyap, DG (Prisons) attended the event as the Chief Guest of the function. SS Parihar, DIG (P) was also present at the occasion along with few other officials.

In the program, all eight convicts were immediately released from the jail and were let out for a new beginning of their free life. DG Ajay Kashyap thanked the Jamiat and its national general secretary Maulana Mahmood Madani for the generosity shown. He also urged Jamiat to continue their support for such noble cause in the future also.

Ajay Kashyap has advised that special emphasis is given to the inmates belonging to the economic and social backward strata of the society. Kashyap said, “Delhi prison is a correctional institution that aims to rehabilitate inmates with a human touch so that after releasing from jail they can again rejoin as productive members of society by providing them with useful life skills, education, and support.”

“During the period of incarceration, the inmates are occupied in positive and constructive activities and encouraged to participate in various activities,” he added.

Kashyap also talked about the “Constitution Week”, which was celebrated in the last week of November 2017 by the prison department. The focus in the week was on identification of prisoners who were granted bail but could not be released due to their inability to produce sureties.

During this exercise, several poor convicts were identified who were undergoing sentence in lieu of the fine. Jail administration tried to reach out to several philanthropic organisations for help for these convicts. “It was decided to join hands with some organisations so that the fine amount can be deposited to ensure the release of such convicts immediately to re-integrate in the mainstream of the society again as a productive member of society,” said the press statement released by Jamiat.

On the occasion, Kashyap thanked Jamiat Ulama-i-Hind for approaching prison administrations and coming forward to cooperate on humanitarian ground. On behalf of Jamiat Ulama-i-Hind Maulana Hakeemuddin Qasim, Maulana Ghayyur Qusim, Qari Abdus Sami, Qari Naushad Adil, Maulana Yaseen Jahazi, Maulana Shafiq Qasmi Mufti Suhail Qasmi, Maulana Azeemullah Qasmi were also present in the function. The JUH delegation also gifted sets of Holy Qur’an to the DG.

Courtesy: Two Circles

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Even as the Muslim Personal Law Board continues with an archaic, rigid and untenable view on triple talaq,  Sabrangindia reproduces an article by legal expert and jurist Tahir Mahmood that exposes the argument

Image: AFP

“The Supreme Court cannot test the validity of Muslim law on the touchstone of fundamental rights guaranteed by the Constitution since it is not a State-made law.” This is what former Chief Justice Aziz Ahmadi’s lawyer-son Huzefa Ahmadi has reportedly told the court the other day. The constitutional tenability of his contention needs to be examined in its proper perspective.
 
In October 2015 a Supreme Court Bench was hearing arguments in the case of Prakash v Phulwati in which gender discrimination under the Hindu Succession Act 1956 had been challenged for its constitutional validity. As the lawyer opposing the challenge argued that similar discriminations under Muslim law had been allowed by the courts to stay, the Bench directed that a PIL be registered suo motu for the consideration of that matter by an appropriate bench to be constituted by the Chief Justice.
 
In a bid to preempt any further proceeding in the matter, the Maharashtra unit of the Jamiat-ul-Ulama has now filed a petition in the court arguing that non-statutory Muslim law is outside the ambit of fundamental rights. Huzefa has made the contention referred to above as the petitioner’s lawyer.       
 
In Part III of the Constitution guaranteeing fundamental rights Article 13 says that any past or future law made by the State, as also any custom and usage, going against its provisions would be void. As it does not specifically mention personal laws, there has been a controversy whether this prefatory declaration in Part III covers also the personal laws [which are claimed to be something different from custom and usage].

All religious communities in India are governed by their respective personal laws which, with the sole exception of Muslim law, are now found in legislative enactments.  While these codified personal laws can be seen as State-made laws, for the uncodified Muslim law it is claimed by the community leaders that not being a “State-made law” it is beyond the scope of Part III.

The contention is clearly erroneous. The uncodified Muslim law is in force in India not as part of Muslim religion [as Muslim religious leaders presume] but because of its recognition by state legislation, mainly the Muslim Personal Law (Shariat) Application Act 1937. Particular chapters of Muslim law are protected by specific provisions of several other statutes – law of gifts by the Transfer of Property Act 1882, of wills by the Indian Succession Act 1925 of dower by the Dowry Prohibition Act 1961, and so on.

Jurisprudentially, no difference can be made between a personal law incorporated in some legislative enactments and another applied by the courts under the authority conferred by some other legislative enactments.

Even if it is presumed that personal laws are covered by the fundamental right to religious freedom under Article 25 of the Constitution, that Article itself emphatically says that this right will not prevent the State from introducing social reforms. In any case the Constitution does not exempt any personal law from the legislative powers of the State – on the contrary it specifically puts all personal law matters, without exempting any community, within the competence of Parliament and state legislatures [Schedule VII, List III, entry 5].  Further, all personal laws are administered in the country by State courts and nothing in the Constitution exempts any of them from the higher courts’ power of judicial review.

I am not saying that Muslim law should not be retained in force and  have always loudly said that the State cannot repeal Muslim law without first repealing the four Hindu law Acts enacted by Parliament in 1955-56 [ignoring the civil laws of marriage and succession which were already available as a secular option].  My stand that if the personal law system is to be abandoned in favour of a common law the lead must come from the majority community was cited in the Shah Bano case (1985) with a rider “lead or no lead the State must act.”

The Muslim law claimed to be of “divine” origin is practised in India in an awfully distorted way going in a direction diametrically opposed to clear teachings of the Holy Quran and the Holy Prophet who was indeed one of the greatest social reformers in human history.

Disagreeing with it, I maintain my considered opinion that repealing the traditional Muslim law while retaining the modern Hindu law – which also, like the former, is replete with religious and gender discriminations — will be repugnant to the Constitution.    

The Muslim law claimed to be of “divine” origin is practised in India in an awfully distorted way going in a direction diametrically opposed to clear teachings of the Holy Quran and the Holy Prophet who was indeed one of the greatest social reformers in human history. For sixty-eight years since independence religious leaders have succeeded in preventing any legislative reform. In the absence of any corrective legislation the apex court of the country has cautiously tried to retrieve the original principles of Muslim law and apply them in their true letter and spirit. Religious leaders always deprecate such rulings too, sometimes in words bordering on contempt of court. 

Those who claim immunity for Muslim personal law from the jurisdiction of the country’s apex court must read the writing on the wall and let it remain in force as a matter of state policy, without questioning its judicial interpretations. Invoking the Constitution for its protection is an utterly unwise move which may prove fatal for its continuation in force.  

(The writer is Professor of Eminence & Honorary Chairman, Institute of Advanced Legal Studies, Amity University, former Chairman, National Minorities Commission, former Member, National Human Rights Commission and the Law Commission of India)
 

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