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India has the longest written constitution in the world. But about 14 percent of India’s population – Indian Muslims – are subject to what are called personal laws or Sharia laws. Sharia is protected and maintained in India legally and constitutionally. No other democracy around the world enforces Sharia law through its courts or any other legal structures. India is considered a remote country in the sense that the country continues to protect uncodified and undefined Sharia practices.
Apart from the questionable origins of the law protecting Sharia in India, the legal foundations on which Sharia protects are weak and flimsy. Any other law on the statute books could have been challenged in the courts and ultimately overturned for being vague, arbitrary, and unreasonable. It is one thing for families to live their personal lives through Sharia, but it is an entirely different ball game for the courts to protect and guard these practices.
Here are five reasons why India does not grant any Sharia law protection in the country:
1. The Sharia Implementation Act, 1937 is vague, arbitrary and unreasonable: The entire fulcrum for the existence of Muslim personal law in India is the Sharia Implementation Act of 1937. The pre-independence law cannot stand the constitutional judicial test of democratic India. The entire law is, in various respects, vague, arbitrary, and unreasonable.
The law is explanatory in nature, meaning that it simply makes a declaration that Sharia law will apply to Muslims. It does not specify its goal, its scope, or the measure of well-being that it intends to implement. Law is a wall placed between society’s law and the constitution without any reasonable foundation. It is a pre-independence law, but the fact that it survived in independent India is a legal dilemma.
2. There is no comprehensive definition of Sharia: The Sharia Implementation Law of 1937 stipulates that various aspects of Muslims’ lives related to marriage, divorce, inheritance, adoption, etc. are governed by Islamic law. The four-page pre-independence law hardly stands on flimsy legal grounds. The basic term for the law – Sharia – is not specified. Nor did the law specify which sources should be relied upon when interpreting the word.
The word “Sharia law” is left without borders. The term is at the mercy of the clergy to use it broadly or narrowly. This has also allowed distortion, disinformation and the propagation of evil practices under the cloak of religion. Although sharia constitutes the basic concept of the 1937 law, its sources, origin, scope, and why it should be protected remain undetermined. The law is initially ambiguous. It is subject to abuse and abuse. Ambiguity and arbitrariness are the two main reasons under which many laws passed by the country have been repealed.
3. Creating a “Muslim” class without a clear objective and without a reasonable link: The Sharia Implementation Act aims to protect Islamic personal law in India. While the existence of such a law may be well understood in the pre-independence era, under British rule, its survival on the statute books today raises many questions.
Whenever any private category is created and defined in the platform, it must be defined for a social purpose. For example, the Scheduled Castes and the Notified Scheduled Tribes were identified and given certain protections and privileges due to their historical socio-economic weakening. Likewise, if Muslims are identified as a category under this law, there must be a welfare objective for the state to justify this designation. The protection and enforcement of Islamic personal status law on all Muslims does not stand up to the legal test. The legal test according to which the creation of a special class and the granting of special rights or privileges must be directly proportional to the welfare measure to be implemented is not met by Sharia law.
4- Sharia protection violates the equality of religion before the law: All religions should be treated equally and the state should not favor one religion over another. The special protection of any single religious law or practice clearly violates the equality of all religions before the law. It is true that the state can make special provisions for the protection of minorities, but those provisions are for the welfare of the communities. The Sharia Implementation Act, 1937, is not welfare legislation. It just declares that Muslims should be governed by Sharia. The law grants special immunity to Sharia practices without any welfare objective.
5. The law shall not punish discrimination: Diversity is an overextended term. It is often used to protect ancient discriminatory practices against women. Therefore, it is unfortunate that the courts give legal inviolability to the marriage of a 15-year-old Muslim girl because Sharia allows it. Such perversion is permissible in the face of the provisions of the various laws framed to protect children from sexual abuse.
Islamic law was an early proponent of giving property rights to women – far ahead of English law or Hindu law, but the reactionary turn that Islamic law has taken in the last three hundred years cannot be ignored. No law or statue, however ancient, can confer legal sanction on medieval practices. It cannot be used as a tool to perpetuate discrimination.
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