The Hindu Editorial Analysis- 12th December 2022 | Current Affairs & Hindu Analysis: Daily, Weekly & Monthly - UPSC PDF Download

Context

Last month, Afghanistan’s self-styled supreme leader Hibatullah Akhundzada decreed that cases in which shariah conditions of hudud (crimes against God) and qisas (justifed retaliation) were fulflled, judges must implement “Islamic” punishments because “this is the ruling of shariah, and my command, which is obligatory.” Within days of this arrogant pronouncement, 11 men and three women were publicly fogged by the Taliban for committing “moral crimes” such as theft and adultery.

• According to Sharia or the Muslim personal law, men are allowed to practice polygamy that is, they can have more than one wife at the same time, up to a total of four.
• 'Nikah halala' is a process in which a Muslim woman has to marry another person and get divorced from him before being allowed to marry her divorcee husband again.
• A Muslim man can divorce his wife by uttering Talaq once for three months. This practice is called Talaq-e-Hasan.
  • "Triple talaq" allows a husband to divorce his wife by repeating the word "talaq" (divorce) three times in any form, including email or text message.
• In Islam, talaq and khula are two terms for divorce for men and women respectively. A man can part ways through 'talaq' while a woman can separate with her husband through 'Khula'.

• The Muslim Personal Law (Shariat) Application Act was passed in 1937 with the aim to formulate an Islamic law code for Indian Muslims.
• The British who were at this point in time governing India, were trying to ensure that Indians were ruled according to their own cultural norms.
• When it came to distinguishing between laws made for the Hindus and those for the Muslims, they laid out the statement that “clear proof of usage will outweigh the written text of the law” in the case of Hindus. For the Muslims on the other hand, the writings in the Quran would be of foremost importance.
• Since 1937 therefore, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute the state shall not interfere.

• The Hindu Succession Act of 1956 which lays out guidelines for property inheritance among Hindus, Buddhists, Jains and Sikhs.
• The Parsi Marriage and Divorce Act of 1936 lays out rules to be followed by the Parsis according to their religious traditions.
• The Hindu Marriage Act of 1955 had codified laws related to marriage among Hindus.

What is Shariah?

• Shariah is based on the Quran, stories of the Prophet Muhammad’s life, and the rulings of religious scholars, forming the moral and legal framework of Islam.
• The Quran details a path to a moral life, but not a specific set of laws.

• The interpretations of Shariah are a matter of debate across the Muslim world, and all groups and governments that base their legal systems on Shariah have done so differently.
• One interpretation of Shariah could afford women extensive rights, while another could leave women with few.
• Critics have said that some of the Taliban restrictions on women under the guise of Islamic law actually went beyond the bounds of Shariah.
• When the Taliban say they are instituting Shariah law, that does not mean they are doing so in ways that Islamic scholars or other Islamic authorities would agree with.

• Shariah lists some specific crimes, such as theft and adultery, and punishments if accusations meet a standard of proof.
• It also offers moral and spiritual guidance, such as when and how to pray, or how to marry and divorce.
• It does not forbid women to leave home without a male escort or bar them from working in most jobs.

• When the Taliban controlled Afghanistan from 1996 to 2001, they banned television and most musical instruments.
• They established a department for the Promotion of Virtue and the Prevention of Vice based on a Saudi model.

• Restrictions on behavior, dress, and movement were enforced by morality police officers, who drove around in pickup trucks, publicly humiliating and whipping women who did not adhere to their rules.
• In 1996, a woman in Kabul, Afghanistan, had the end of her thumb cut off for wearing nail polish, according to Amnesty International.
• Other restrictions include a ban on schooling for girls, and publicly bashing people who violated the group’s morality code.
• Women accused of adultery are stoned to death.

• The applicability of the Shariat Act has been controversial over the years. There have been previous instances when the issue of protection of women’s rights as part of the broader fundamental rights came into conflict with religious rights.
• The most well-known among these is the Shah Bano case.
• In 1985, 62-year-old Shah Bano, filed a lawsuit seeking alimony from her former husband.
• The Supreme Court, in this case, had held up her right to alimony, but the judgment was vehemently opposed by the Islamic community who considered it to be going against the written rules in the Quran. The case triggered a controversy regarding the extent to which courts can interfere with personal/religious laws.
• The Shariat Application Act in India protects the application of Islamic laws in personal legal relationships, but the Act does not define the laws.
• It clearly states that in matters of personal disputes, the State shall not interfere and a religious authority would pass a declaration based on his interpretations of the Quran and the Hadith.
• Personal law does not fall within the definition of ‘laws’ under Article 13 of the Constitution. The validity of a personal law cannot be challenged on the basis of fundamental rights enshrined in the Constitution.

• The government and society will have to work hard to build trust, but more importantly, make common cause with social reformers rather than religious conservatives.
• Rather than an omnibus approach, the government could bring separate aspects such as marriage, adoption, succession and maintenance into a Uniform Civil Code (UCC) in stages.
• Need of the hour is the codification of all personal laws so that prejudices and stereotypes in every one of them would come to light and can be tested on the anvil of fundamental rights of the Constitution.