On 28 May this year, a bench of the Delhi High Court dismissed a PIL which urged the Court to direct the state to enact a Uniform Civil Code (UCC). In its judgement, the Court harped upon the need not to act upon considerations of expediency or on the basis of reformist zeal to remedy what the judges felt are flaws in the religious laws of different communities. Rather, gradual changes and granting agency to the particular community is an indispensable part of the rule of law in a pluralist, democratic and secular society. Democracy and secularism are catechisms of the court’s jurisprudence, but the emphasis on pluralism was indeed a rare occurrence.
For it has always been the reverse. In the matter of personal laws, the court’s uneasiness with legal pluralism has always been evident. In the contest between legal universalism, and especially in numerous cases regarding the UCC, judges have always sided with the latter. Not only that, in matters of Muslim personal law, a strain of Islamophobia has always lurked behind the courts’ ostensibly altruistic motivations and reformist zeal.
The Shah Bano case, in which Justice Chandrachud criticised disparate loyalties to personal laws having conflicting ideologies with those of the majority’s Hindu law and slammed the state for lacking political courage to enforce reform, stands out as the most infamous.
Justice Badar Durrez Ahmed’s critique of the Shah Bano judgement is telling. “The honourable Judges of the Supreme Court are men of great learning and legal acumen however they do not possess a complete knowledge of Arabic, of the Qur’an, the hadis and amal of the companions of the Prophet. The Supreme Court in its role of a qazi can certainly apply the Shariat. It cannot however change it or interpret the Qur’an on its own. … What the Supreme Court has done is to have expressed its ‘ra’y’ or private opinion or interpretation of the Aiyats. This is highly arbitrary and extremely dangerous. If this is permitted then the entire Shariat, nay, even the meaning of the Qur’an could be twisted. It is this act of the Supreme Court that has caused such a stir amongst the Muslims of India.” (emphasis supplied).
But these sagacious words were lost on the judiciary, many of whose members have played the role of what is commonly criticised as theologians in robes. There have been more egregious instances than Shah Bano. The sheer contempt for religious plurality and diversity, and the majoritarian strand of making the personal laws a sort of Tebbit Test visible in some judgements have contributed in no small measure to the onslaught against secularism. On 27 August 1947, Vallabhbhai Patel, speaking in the Constituent Assembly, minced no words in condemning those demanding separate electorates for the purpose of representation- they have no place in India and must go to Pakistan, he said. These judgements though not as strident, do no less.
One of the most notorious of cases is Rahmatullah and Khatoon Nisa (1994). The Allahabad High Court’s Justice Hari Nath Tilhari, in what was a dispute over an interpretation of the UP Land Ceiling Act, thought it fit to pronounce on the constitutional validity of triple talaq. The UP law in question was heavily loaded in favour of men, as most land ceiling legislations are, but Justice Tilhari’s profound concern for gender justice was limited to Muslim women only. It could have been a sort of a fig leaf if only he had relied upon theology instead of a random assortment of romantic couplets and novels. Not surprising, because immediately after the demolition of the Babri Masjid, the same judge allowed public worship of the Ram idols in the makeshift temple at the site on the ground that the revered god of the Hindus was a “constitutional identity”.
The Sarla Mudgal (1995) was another case in point. It was a case challenging the practice of Hindu men converting to Islam to circumvent the criminal law of bigamy. Holding that the UCC was imperative "both for the protection of the oppressed and promotion of national unity and solidarity”, Justice Sahai directed the government to bring in the legislation without dragging its feet. When the court dons the mantle of protecting the oppressed in such cases, it snatches away a community’s agency- treating it as incapable of handling its own matters. Worse, making the promotion of national unity and solidarity contingent upon the UCC militates against every tenet of secular jurisprudence and governance. The naked communalism was on display in the very next pronouncement: "Those who preferred to remain in India after the Partition fully knew that the Indian leaders did not believe in the two-nation or three-nation theory. They were also aware that in the Indian Republic there was to be only one nation- the Indian Nation.” One would have to tilt at windmills in order to defend Justice Sahai if he is accused of espousing the cause of religious nationalism or the ‘Hindu Rashtra”, in simpler and more recognisable terms.
In the immediate present, when the demands for “uniformity” get shriller, the onslaught against “minority status” gathers steam and when “Hindu Nationalism” is worn as a badge of honour by the country’s Prime Minister, the Delhi High Court sets a fine example for both India’s judiciary and polity.