Muslim women claiming equality in succession and wills executed for entire estate of Muslims came for consideration before the Supreme Court, which as quoted in a report framed the following questions:
1. Whether Muslim women have right to claim equality in succession in view of the mandate of Constitution of India under articles 14 and 15 thereof in the light of article 44?
2. Whether a testator who is governed by Mohammedan Law is entitled to execute a will of his entire estate left according to his wish?
3. Whether a testator who is governed by Mohammedan Law can execute a will to the extent of a third of the estate left by him in favour of any one or more of his legal heirs without the consent of the other legal heirs?
Those submitting to the Will of Allah are Muslims. (Mohammedans, an altogether different expression, would mean followers of Mohammed.) We have Divinely revealed Shariah, Islamic Law, which Muslims follow, or ought to. Though some writers use misnomers, there is no Mohammedan Law: the Prophet was the conduit for revelation of the law, not its originator. Knowing language and etymology control narratives, the SC adopting expressions has the potential of legitimising incorrect terms. The quoted Constitutional Articles (so far as relevant to the above) are:
1. Equality before law–The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
It is trite that Art. 14 refers to denial of equality by the state, in its treatment of citizens, so as not to lead to discrimination. Discrimination is the unequal treatment of similarly placed individuals, whereas equal treatment of differently placed individuals is, equally, discriminatory. Where people have different roles to play, or are not similarly placed, differential treatment is not discrimination but reasonable classification.
Women and men, in Muslim Law, have different rights over inheritance, the woman’s rights flowing to her free from any responsibility, unlike the man’s, whose inheritance is restricted in use, tethered to certain overarching responsibilities.
1. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.-(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to
1. access to shops, public restaurants, hotels and places of public entertainment; or
2. use of wells, tanks, bathing ghats, roads, places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for women and children.
1>(4) Nothing in this article … shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes and the Scheduled Tribes.
(5) Nothing in this article …shall prevent the State from making any special provision, by law, for the advancement of any socially and educationally backward classes of citizens or for Scheduled Castes or Scheduled Tribes in so far as such special provisions relate to admission to educational institutions … other than minority educational institutions ….
Since we are not discussing access to shops, public restaurants, hotels and places of public entertainment, use of wells, tanks, bathing ghats, roads and places of public resort maintained out of State funds or dedicated to the use of general public, Art. 15 (2) is irrelevant. Arts. 15 (3), (4) and (5) carve out exceptions for affirmative action, so they don’t apply either.
44. Uniform civil code for the citizens– The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.
Art. 44 unlike Arts. 38 (“shall strive to promote”), 43A (“shall take steps, by suitable legislation”), 46 (“shall promote with special care the educational and economic interests of the weaker sections”), 49 (“shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared …to be of national importance, from spoliation, disfigurement, destruction”), uses the expression “shall endeavour to secure”, as in 47 (“shall endeavour to bring about prohibition of consumption …of intoxicating drinks”), thus requiring only a persuasive exercise as a desirable objective and not couched in mandatory language for the State or Court to fast-track it.
Moreover, DPSP Art. 37 says, “Provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.” So, these are non-justiciable. The Court cannot enforce these.
Given that limitation, what is the exercise about? When one cannot ask the Court to compel DPSPs, can one circumvent that Constitutional limitation by resorting to an indirectly framed relief? Given what cannot be done directly, cannot be done indirectly [M C Mehta vs Kamal Nath, Shiv Kumar Sharma vs Santosh Kumari, et al], should Courts entertain such collateral assaults effectively disguising actual intent? Interestingly, unconstitutional laws restricting freedom of religion have been held Constitutional, plausible deniability lending willingly accepted credibility to claims that restraint is only of forcible conversion, etc.
One notes, there has been no move to ban liquor, despite irrefutable data linking it to rapes, murders, vehicular accidents, etc. There is, however, perceptible enthusiasm in the matter of “reform” of Muslim Law, significantly by only those who do not wish to be governed by it or are openly hostile to it. As interesting coincidence, a politician recently announced if his party wins again, Muslim Personal Law will be ended.
Notably, Art. 51A on fundamental duties declares, “It shall be the duty of every citizen of India, (a) to abide by the Constitution and respect its ideals and institutions… (e) to promote harmony and the spirit of common brotherhood …transcending religious, linguistic and regional or sectional diversities… (f) value and preserve the rich heritage of our composite culture…” etc.. However, (i) instances of elected representatives denouncing the Constitution, (ii) acts aimed at destroying harmony and brotherhood,
(iii) destruction of valuable heritage suggesting Islamic architectural and historical moorings, all extremely important, all admitting of urgent suo motu redressal by Courts, are plenty. The present focus, in this case, however, is Muslim Law. And how such a claim can succeed without destruction of two other Constitutional guarantees beats understanding, those being 25. Freedom of conscience and free profession, practice and propagation of religion (1) Subject to public order, morality and health and other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall …prevent the State from making any law– (a) regulating or restricting economic, financial, political or other secular activity …associated with religious practice;
26. Freedom to manage religious affairs: Subject to public order, morality and health, every religious denomination or any section thereof shall have the right (a)… (b) to manage its own affairs in matters of religion; (c)… and (d)…
Imagining possible answers to the questions quoted above:
1. (a) Muslim women do have the right to claim equality in succession, but Constitution articles 14 and 15 in the light of article 44 do not advance the claim. (b) While everyone has the right to make any claim, unsustainable claims by differently placed individuals would not succeed, constituting not discrimination but reasonable classification, which has been held valid and legal. Besides, it is not the State which is denying anyone anything. Any individual, who does not wish to be governed by Muslim (not Mohammedan) Law, is invited to decide not to be so governed. However, as they say, your right to swing your fist stops where my nose begins.
2. A testator governed by Muslim (not Mohammedan) Law is entitled to execute a will of his entire estate left according to his wish, provided a) he chooses to have his marriage registered under the Special Marriage Act or b) all his heirs consent, (i) in case of Sunnis after demise of the testator and (ii) in case of Shias, even during his lifetime.
3. A testator governed by Muslim (not Mohammedan) Law can execute a will to any extent of his estate in favour of any legal heirs, but such a will would not be valid or enforceable unless he has the consent of all other legal heirs.
Further, if some heirs consent to such a will and others do not, the “rule of the anticipated share” kicks in. Those who accede to the will get what the will gives them, from the residue pro rata after the entitlement of those who do not concede get their anticipated share.
Muslim Law books followed in the sub-continent declare a will cannot be in favour of a legal heir, and cannot be for more than one-third of the testator’s estate.
However, Surah al Baqarah, aayath 180, exhorts
عل ى ٱ ۡل ُمتَّ ِقي ن حقًّا
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