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RETHINKING MUSLIM PERSONAL
LAW

This volume critically analyses Muslim Personal Law (MPL) in India and offers
an alternative perspective to look at MPL and the Uniform Civil Code (UCC)
debate. Tracing the historical origins of this legal mechanism and its subsequent
political manifestations, it highlights the complex nature of MPL as a sociological
phenomenon, driven by context-specific social norms and cultural values. With
expert contributions, it discusses wide-ranging themes and issues including MPL
reforms and human rights; decoding of UCC in India; the contentious triple
talaq bill and MPL; the Shah Bano case; Sharia (Islamic jurisprudence) in postco-
lonial India; women’s equality and family laws; and MPL in the media discourse
in India. The volume highlights that although MPL is inextricably linked to
Sharia, it does not necessarily determine the everyday customs and local practices
of Muslim communities in India.
This topical book will greatly interest scholars and researchers of law and
jurisprudence, political studies, Islamic studies, Muslim Personal Law, history,
multiculturalism, South Asian studies, sociology of religion, sociology of law and
family law. It will also be useful to practitioners, policymakers, law professionals
and journalists.
Hilal Ahmed is Associate Professor at the Centre for the Study of Developing
Societies, New Delhi, India.
R. K. Mishra is Senior Professor and ONGC Subir Raha Chair Professor at the
Institute of Public Enterprise, Hyderabad, India.
K. N. Jehangir is Faculty Member (Students’ Mentor) at the Institute of Public
Enterprise, Hyderabad, India.
RETHINKING MUSLIM
PERSONAL LAW
Issues, Debates and Reforms

Edited by Hilal Ahmed, R. K. Mishra and

K. N. Jehangir
Cover image: Hilal Ahmed
First published 2022
by Routledge
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as the authors of the editorial material, and of the authors for their individual
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DOI: 10.4324/9781003211884
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CONTENTS

List of Tables vii

Acknowledgements viii
Editors ix
List of Contributors xi

Introduction 1
Hilal Ahmed

PART I
History and Law 13

1 Of Statutes and Scriptures: Diversity, Democracy, Personal

Laws and Courts 15
M. R. Shamshad

2 Muslim Personal Law from a Cross-national and Comparative

Law Perspective 42
Werner Menski and Kalindi Kokal

3 Decoding Uniform Civil Code (UCC): A Sociological Analysis 63

Abdul Matin

4 Muslim Personal Law Reform and Human Rights 73

Furqan Ahmad
vi Contents

PART II
Politics and Law 87

5 Muslim Personal Law and Triple Talaq: Claims, Counterclaims

and the Media Discourse 89
Nazima Parveen

6 Triple Talaq Bill and Reforming the Muslim Personal

Law in India 110
Maidul Islam

7 Politics of Shariat in Postcolonial India 120

Hilal Ahmed

PART III
Gender and Law 133

8 Challenging the Hegemonic Discourse: All India Muslim

Women Personal Law Board and Gender Justice 135
Misbah Rashid

9 Gender Equality Should Guide the Process of Reforming

Family Laws and Not National Integration 151
Irfan Engineer

Bibliography 157
Index 169
TABLES

0.1 Opinion on the triple talaq issue 8

0.2 Muslim opinion on triple talaq 9
0.3 Muslim response on triple talaq (region-wise) 9
0.4 Should Muslims have their own religious courts? 10
3.1 Highest Mansabs 66
ACKNOWLEDGEMENTS

The volume is the outcome of a seminar, Making Sense of Muslim Personal Laws
in Post-independent India, jointly organised by the Institute of Public Enterprise
(IPE) and Centre for the Study of Developing Societies (CSDS) in Hyderabad on
20–21 September 2019. We are grateful to IPE, CSDS and the Indian Council of
Social Science Research (ICSSR) for offering institutional support. The seminar
was funded by the ICSSR.
We are grateful to all the participants and the contributors. A special thanks to
Mr M R Shamshad, Advocate Supreme Court of India and Dr Misbah Rashid,
who did not participate in the seminar yet agreed to contribute chapters for this
volume.
Dr J Kiranmai, Assistant Professor and Head, Center for CG and CSR, IPE,
made a great effort in finalising this manuscript. Our sincere thanks to her. We
would also like to acknowledge the efforts made by Dr Muzamil Ahmad Baba,
Assistant Professor – Marketing, Coordinator – Alumni Relations, IPE; Ms
Deepa, Research Associate and Mr Ch Upender, Administrative Officer, IPE, for
providing research and administrative support.
EDITORS

Hilal Ahmed is Associate Professor at the Centre for the Study of Developing
Societies, New Delhi, India. He works on political Islam, Muslim politics of rep-
resentation, and politics of symbols in South Asia. His first book, Muslim Political
Discourse in Postcolonial India: Monuments, Memory, Contestation (Routledge, 2014),
explores these themes to evolve an interdisciplinary approach to study Muslim
politics. His recent works, Siyasi Muslims: A story of Political Islam in India (2019)
and Democratic Accommodations: Minorities in Contemporary India (with Peter R
deSouza, and Sanjeer Alam, 2019), elaborate these themes and explain the dis-
cursively constituted nature of contemporary Muslim political discourse in India.
He is currently working on a book project on the politics of Muslim politi-
cal representation in postcolonial India. He is also editing a Hindi Reader of
Sudipta Kaviraj’s writings. He is Associate Editor, South Asian Studies, journal
of the British Association of South Asian Studies. He was awarded the Institute
of Advanced Studies-Nantes (IAS-Nantes, France) Fellowship, 2018–19, the
Rajya Sabha Fellowship (2015–2016), the Asia Fellow Award (2008/2010), the
Indian Institute of Advanced Studies Fellowship (2009), the Ford Foundation-
IFP Fellowship (2002), the ATRI-Charities Aid Foundation Fellowship (2001),
and UGC Senior Research Fellowship (1999) and the UGC Junior Research
Fellowship (1997).

K. N. Jehangir is Faculty Member (Students’ Mentor) at the Institute of Public

Enterprise, Hyderabad, India. He completed his postgraduation (1969) and PhD
(1989) from the University of Calcutta. His areas of research interest have been
gender studies, minorities, Muslim women, health systems and social sciences.
He has been associated with several research organisations. He has worked at
the Centre for the Studies of Developing Societies (CSDS), Delhi (1970–73);
Indian Council of Social Science Research (ICSSR), New Delhi (1973–2012);
x Editors

and retired as Director (International Collaboration). He was associated with

Council for Social Development, New Delhi (2017–19) as Consultant (Academic,
Administration and Finance). His major publications are Status of Muslim Women
in West Bengal, 1991, Minorities in India (ed), 2007, Social Science Research in India
and the World (ed), 2015, and Health System Strengthening in India (ed), 2017.

R. K. Mishra is Senior Professor and ONGC Subir Raha Chair Professor at Institute
of Public Enterprise, India. He is a graduate of International Management
Programme, SDA Bocconi, Milan, Italy. He has been a Fellow of British Council
and Commonwealth Secretariat. He has had research stints at London Business
School and Maison Des Sciences De L’ Homme, Paris. He has taught at the
University of Bradford, United Kingdom and was a visiting professor at Maison
Des Sciences De L’ Homme, Paris, University of Technology Mara, Malaysia,
Faculty of Economics, University of Ljubljana, Slovenia. He is a member of
the UN Task Force on Standards of Excellence in Public Administration and
Education. He is a member of the editorial boards of many international and
national journals published. He has supervised doctoral research for several uni-
versities in public administration, management, economics and commerce and
has taught at the National Management Programme, GoI-MDI, MPhil and MBA
programmes for more than three decades. His current interests include corporate
social responsibility, corporate governance, modernisation of state, civil service
systems, financial administration, environmental administration, privatisation,
SOE reforms, restructuring, poverty management, and good governance.
CONTRIBUTORS

Furqan Ahmad has written books on family law, environmental laws and human
rights including acclaimed works such as Triple Talaq: An Analytical Study with
Emphasis on Socio Legal Aspects (1984), Legal Regulation of Hazardous Substance
(2009) and Human Rights in India (2011). His forthcoming publications are Muslim
Law Reform Controversy and Role of Indian Muslim Jurists in Early 20th Century in
India, Supreme Court on Environment and Legal Control of Environment Pollution: An
Assessment of Existing Legislations in India. He has also contributed several arti-
cles in journals. The Calcutta University awarded the prestigious “Suparbhadeb
medal” for one of his writings published in the Journal of Indian Law Institute
titled “Origin and Growth of Environmental Law in India”. Recently, he was
awarded the “Best Professor in Law” at the 24th Business School Affaire &
Dewang Mehta National Education Awards, organised by the Dewang Mehta
Foundation, Mumbai, 2016. He has also coordinated and actively participated in
various training programmes and international projects organised by the Indian
Law Institute, including projects on Water Law and Policy, Environmental Law
Projects, Anti-conversion Laws and Legal Material on Minority Rights (both
sponsored by National Commission for Minorities, Government of India) etc. He
has been actively involved with various academic programs dealing with envi-
ronmental law, family law and human rights, etc. throughout the country.

Irfan Engineer is Director of the Center for Study of Society and Secularism,
Mumbai, India, which was set up by his father Asghar Ali Engineer. He is the
author of several books and an eminent voice in the struggle for justice and
secularism.

Maidul Islam is Assistant Professor of Political Science at the Centre for Studies
in Social Sciences, Calcutta, India. After completing his doctorate from Oxford
xii Contributors

University in 2012, he has taught political science at the Tata Institute of Social
Sciences and Presidency University, Kolkata. He was also a Fellow at the Indian
Institute of Advanced Study, Shimla. As a Clarendon-Hector Pilling-Senior
Hulme scholar at Brasenose College, he studied political theory for his doctoral
studies in the Department of Politics and International Relations, University of
Oxford. His research interests are in political theory, political ideologies, popu-
lism, identity politics, Indian Muslims, cinema, contemporary West Bengal and
Bangladesh. As a political analyst, he also appears on Bengali news channels and
occasionally gives expert opinions on Indian politics, West Bengal politics and
terrorism to various national and international media houses. His doctoral thesis
at Oxford University has been published as Limits of Islamism: Jamaat-e-Islami
in Contemporary India and Bangladesh (2015). His second book, Indian Muslim(s)
after Liberalization has been recently published.

Kalindi Kokal has a doctorate in law from the Martin Luther University, Halle-
Wittenberg, Germany. As a doctoral candidate in the Department for Law and
Anthropology, she focused on understanding how non-state actors in dispute
processing engage with state law. Her dissertation is an ethnographic study
of dispute-processing mechanisms in two rural communities in the states of
Maharashtra and Uttarakhand in India. Her work explores how village, bira d̄ eri
(kinship-based) and neighborhood panca ȳ ats (community-based councils that
handle dispute processing and other administrative activities), ‘barefoot lawyers’,
and religious and supernatural elements operate as non-state actors in dispute
processing within these village communities.

Abdul Matin is Professor of Sociology, Department of Sociology, Aligarh Muslim

University, India. He has previously taught at AMU as Reader (1998 to 2006),
Senior Lecturer (1995 to 1998), and Lecturer (1990 to 1995). Among his publi-
cations are seven books, 16 research papers, and 44 conference papers. He has
been engaged with research supervision for MPhil and PhD candidates, and as
well has completed six projects, with one ongoing. He has served as Chairman,
Department of Sociology, AMU; Professor-cum-Director, CSSEIP, MANUU,
Hyderabad; and Chairman/Head, EIT, Asmara, Eritrea (North Africa).

Werner Menski, MA (Kiel), PhD (London), has taught various courses in the
Law School at SOAS (1980–2014) and is now Emeritus Professor of South Asian
Laws at SOAS, UK. He continues to be the editor of a major peer-reviewed
journal, South Asia Research, and maintains an active publications programme.
Presently, he is focused around the globally valid kite theory of legal management
with its four competing (and themselves internally plural) corner points.

Nazima Parveen is a Postdoctoral Fellow at the School of Interwoven Arts

and Science, Krea University, (Andhra Pradesh). She is also a Research Fellow
(consultant) at the Centre for the Study of Developing Societies (CSDS) and an
 Contributors xiii

Alumni of Victoria University of Wellington, New Zealand. She has more than
fifteen years of research experience and has worked in the UK, India, and Nepal
on different government and European Union–funded research programs. She
has been working on the issues and debates related to the rights of ethnic and reli-
gious minorities, communalisation of space and the politics of urban transforma-
tion in colonial and postcolonial India. She has been a recipient of many awards
and fellowships, including the ICSSR Postdoctoral Fellowship (2018–2020), the
Royal New Zealand Academy Doctoral Scholarship 2013–2016, ICSSR-CSDS
Doctoral Fellowship Program 2010–12, and ASIA Fellow Award 2008–2009 by
Asian Scholarship Foundation, Bangkok. Her book, Contested Homelands: Politics
of Space and Identity is under publication.

Misbah Rashid is Assistant Professor Gitam University, Hyderabad, India.

Previously, she has been Visiting Faculty Chandigarh University, Chandigarh
and Senior Researcher at Centre for Equity Studies, New Delhi. She holds a
PhD in political science from Jawaharlal Nehru University. Her work is centered
around Islamic jurisprudence, gender and family laws in Islam, Muslim Personal
Law, communal violence in South Asia and in-migration and labour rights in
Kashmir. Her articles on Islam, blasphemy laws and gender have appeared in
peer-reviewed journals.

M. R. Shamshad is an advocate and graduated in law from the University of

Delhi, India. He practised as a lawyer for more than 20 years including 11 years
as Advocate on Record in the Supreme Court. He has largely practised in the
Supreme Court of India and the Delhi High Court. He has appeared in many
important constitutional law matters including the land dispute of Babri Masjid
(Ayodhya), the triple talaq case, etc. He has appeared in arbitration and other
commercial cases and represented the government and public sector undertak-
ings in the Supreme Court. He writes columns in leading newspapers in India.
For a period (2004–2006), he was a visiting lecturer in the Indian law Institute,
New Delhi.
INTRODUCTION
Hilal Ahmed

Muslim Personal Law (MPL) is one of the most controversial issues of our public
life. It is often presented to us as an antithesis of the core essential Indian values
and practices: its legality is described as a serious challenge to the secular sprit
of the Indian Constitution, while its existence as a religious code of conduct
for Muslims is seen as a symbol of political separatism. We are told that MPL is
a fundamental source of Muslim communalism, backwardness and patriarchal
dominance. The Supreme Court judgement on the issue of triple talaq and the
enactment of the Muslim Women (Protection of Rights on Marriage) Act, 2019
are seen as a way out to achieve a truly secular and essentially Indian version of an
equally enigmatic entity called the Uniform Civil Code (UCC).
The dichotomy between MPL and UCC, broadly speaking, is based on three
dominant views. First, it is strongly believed that Muslims of India constitute a
single, closed, homogeneous community, which is inevitably male-dominated.
This Islamic homogeneity is seen as a fundamental source of active Muslim reli-
giosity that makes them committed, practicing believers. The second assumption
is about the operative aspects of the MPL. It is argued that the male-dominated
homogeneous, deeply religious Muslim community is actually governed by a
few established Islamic laws. These Islamic laws are anti-women and intrinsi-
cally patriarchal in nature. It is claimed that the other religious groups, especially
Hindus, do not have their own personal laws. They are governed by secular laws
or the UCC. Hence, the Muslim community in India is the only privileged reli-
gious group that has its own separate civil laws. The third assumption revolves
around the idea of representation. It is claimed that the Islamic clergy functions
as the true representative of the Muslim community. For this reason, the ulema
class has an ultimate right to interpret religious texts and, at the same time,
speak on behalf of all Muslims. Since they are the most respected section of the
community, Muslims of India uncritically follow their ulema. These popular
DOI: 10.4324/9781003211884-1
2 Hilal Ahmed

assumptions give us an impression that MPL and UCC are well-defined sets of
parallel competitive laws – the existence of MPL restricts the possibility to imple-
ment the UCC.
This volume makes a modest attempt to unpack the notion of MPL. It high-
lights the unsettling nature of MPL as a sociological phenomenon and tries to
trace the historical origin of this legal mechanism and its subsequent political
manifestations in colonial and postcolonial India. It is argued that that although
MPL is inextricably linked to Sharia – the Islamic jurisprudence – it does not
determine the everyday life of Muslim communities in India. The Islamic prin-
ciples amalgamate with context-specific social norms and cultural values in a
variety of ways and produce highly localised Muslim customs and practices. This
leads to an interesting social process – localisation of Islam and Islamisation of local
Muslim society. The debates on MPL do not capture these everyday expressions
of lived Islam.
This is also true about the legal status of MPL. We must remember that the
constitutional status of MPL, like other personal laws, is a legally unsettled issue.
At the same, there is no consensus on a well-defined UCC. In such a scenario,
the possibility to have rational, egalitarian and reformed personal laws might be
explored to realise what is often called legal pluralism. This is exactly what the Law
Commission of India says:

Whether or not personal laws are laws under Article 13 of the Constitution
of India or if indeed they are protected under Articles 25-28, has been
disputed in a range of cases…In the absence of any consensus on a uniform
civil code…the best way forward may be to preserve the diversity of per-
sonal laws but at the same time ensure that personal laws do not contradict
fundamental rights guaranteed under the Constitution of India.1

This profound legal observation takes us to the highly debatable idea of Islamic
reforms. Broadly speaking, Islamic reforms refer to the revised interpretations
of religious texts – the Quran and Hadith – so as to make them contextually
appropriate and socially practicable. This text-centric notion of Islamic reform
is not entirely new. The Islamic religious reform movements of the 19th century
were extremely text-centric in nature. One cannot deny the fact that invoking
the centrality of Islamic texts is crucial for initiating any serious discussion on
religious reforms. However, there is also a need to recognise the multiple ways
in which Islam is recognised as a belief system by Muslim communities. This
volume pays attention to this religious heterogeneity in relation to the idea of
Islamic reforms. At the same time, an attempt is made to question the authority
of religious elite as self-appointed guardians of Islamic texts.
To offer a thematic coherence to these varied explorations, we have tried to
explore three broad areas in this volume: Muslim sociological diversity and the
debates on MPL/UCC, politics of MPL and the UCC and the gender justice and
forms of Islamic reforms.
 Introduction 3

History and Sociology of MPL

The story of MPL in India cannot be told without recognising the historical
trajectories that shaped the Islamic intellectual traditions in South Asia. These
traditions did not merely define the moral and ethical foundations of Islamic
communities but also determined the nature of a highly diversified phenomenon
called Sharia. Richard Eaton’s seminal work on religious conversion is very rel-
evant to understand this point. Eaton reminds us that the process of conversion
to Islam was very slow and gradual and took many forms in different cultural
contexts. He divides this process into two subprocesses – accretion and reform.
Refuting the dominant understanding of a conversion movement, he argues that
the Muslim conversion movements in India are more complex than oscillating
back and forth between accretion and reform. According to Eaton, the accretion
aspect of conversion ‘sees a people either adding new deities or superhuman agen-
cies to their existing cosmological stock, or identifying new deities or agencies
with existing entities in their cosmology.’ … ‘In the reform dimension of the
process … the Islamic supernatural agencies are not only distinguished from the
preexisting cosmological structure, but the latter is firmly repudiated.’2
This multifaceted process of conversion to Islam, we must remember, is inex-
tricably linked to the question of Islamic codes of conduct in the South Asian
environment. Sebastian R. Prange’s recent study on the spread of Islam in the
Malabar region is good example to illustrate this complex phenomenon.3 Prange
notices three forms of conversion that evolved over the years in the Malabar
region. There were Pardesi Muslims, especially the Arab merchants, who used to
marry local women (particularly from the lower caste communities or untouch-
ables). The first Indian Muslims of Malabar, arguably, were the issues of marriages
between Arab sea traders and Malayali women. The conversion of the lower caste,
especially the Mukkva community to Islam, was the second form of conversion
that affected the demographic configuration of Muslims in the region. Finally,
the practice of slavery also played a significant role in the spread of Islam. It was
an established practice that slaves were to be converted to Islam. Slavery, in this
sense, also became an important vector of conversion in the Malabar region. This
socially diversified Muslim community, Prange shows, merged in the non-Mus-
lim Brahmin-dominated cultural and political universe. This slow and gradual
assimilation of Islam produced thought-provoking intellectual trajectories and
explanations. The recognition of Malabar as a land of Islam was one such interest-
ing interpretation. Since the Malabar region was not ruled by any Muslim ruler,
it could not be called a Darul-Islam (land of Islam) in technical sense. On the other
hand, Muslims were not fighting any religious war with the non-Muslims in
this region. Thus, it was not appropriate to call it Darul-Harb (adobe of war) either.
To solve this intellectual puzzle, the Muslim intellectuals of Malabar begun to
describe this region as Darul-Islam. They argued that the peaceful collective exis-
tence of a community of faithful (momin) and freedom to practice and propagate
Islam could legitimately be the two basic privileges that ought to be given to
4 Hilal Ahmed

Muslims in a Muslim-ruled state. By this logic, Malabar was declared a land of

Islam. In later years, this refined interpretation of Darul-Islam was invoked to call
upon Muslims to fight against European powers, especially the Portuguese.
Prange’s path-breaking study introduces us to an interesting conceptual
framework. Without overstretching the dominant (and somewhat conventional!)
explanation of syncretism, he stresses those practices, rituals, performances and
material transactions that are recognised as Islamic by a group of people in a spe-
cific context. It is suggested that Islam must be seen as a historical phenomenon,
which always finds concrete expressions as a form of religiosity in a particular
time and space. The discursive formation of Islam, he suggests, needs to be stud-
ied in its own intellectual entirety.
The colonial encounter with Indian realities played a significant role in the
transformation of religious identities. Sudipta Kaviraj’s distinction between fuzzy
and enumerated communities is helpful to understand this transformation. He
argues that in pre-British India the principles of community construction were
very different. These communities were ‘fuzzy’ in two senses: first, the complex
sum of different identities, such as caste, village or region, was fuzzy. There
wasn’t any overarching community identity available to them that could claim to
accommodate all the layers of belongingness. Second, the communities had not
been enumerated. Kaviraj points out ‘they [members of these fuzzy communities]
would not represent themselves as a large universal collective group … for the
very fact of being one, being involved in some action’.4 He argues that colonial
modernity provided a clearer self-perception to Indian communities through the
processes of statistical counting and spatial mapping. Consequently, it became
possible to think of a homogeneous community, the exact numbers of its mem-
bers, its religious doctrine and its common political interests. This actually led to
a new imagination of Muslim collective identity, which I call Muslims as numbers.5
The emergence of the idea of MPL in colonial India is an outcome of this enu-
merated Muslim identity.
The MPL found a new life in postcolonial India. The idea of minority and the
discourse of rights became crucial points of reference in this regard. It is worth
noting that the Constitution actually conceives ‘minority’ as an open category
to protect the interests of various religious, linguistic and culturally distinctive
groups. In this sense there is no possibility to think of Muslims as a permanent
minority in the constitutional framework. In fact, one finds two two fundamental
principles are invoked to define minority: the impermanency of minority (and for
that matter majority!) and the multiplicity of minorities. The first principle very
categorically stresses upon the fact that minority, being a numerical expression,
cannot be attributed to any particular social group or community. For instance,
Sikhs in India are a religious minority; however, they become a majority in the
state of Punjab. This emphasis on the sociological temporality makes the consti-
tutional idea of minority much more open and flexible. The second constitutional
principle is concerned with the multifaceted character of social groups. It reminds
us that minority can be defined in a variety of ways. For this reason, multiplicity
 Introduction 5

of identity markers needs to be identified to think of the idea of minority in a

plural sense. Thus, region, language and culture also become significant indica-
tors to categorise minorities on linguistic and cultural grounds. Interestingly, the
political discourse in the country almost ignored this conceptual fluidity associ-
ated with the constitutional ideas of minority. As a result, the minority–majority
binary has been continued to be defined only on religious basis: Hindus eventu-
ally became a permanent majority, whereas Muslims are always regarded as a per-
manent minority.6 This political fixity has been one of the most important aspects
of the postcolonial debate on MPL. This is what this volume maps out through
three sections: History and Law; Politics and Law; and Gender and Law.
The first chapter by M.R. Shamshad, Of Statutes and Scriptures: Diversity,
Democracy, Personal Laws and Courts, provides an overview of the recent debate
on MPL from a legal-historical point of view. This chapter tells us the difference
between personal laws and the customary law. Shamshad emphasises the fact that
MPL and UCC cannot be discussed by suppressing the sociological diversity and
existence of plurality of legal practices. The Constitution of India recognises
castes, tribes, sex, region, religion, language, communities, social classes, and
many others factors to uphold a pluralistic view of Indian social and legal life. In
his view, any effort to move further, and to achieve the goal as set out in Article
44 of the Constitution, cannot be meaningful unless this sociological plurality is
recognised.
Werner Menski and Kalindi Kokal’s contribution, Muslim Personal Laws from
a Cross-national and Comparative Law Perspective, introduces us to another nuanced
perspective. In their opinion, Indian debate on Personal Laws is too simplistic and
reductionist in nature. There is a tendency to focus on ‘law and religion’, while
identifying theocracy as a major risk. They argue that India’s ‘problems’ with
Muslim law, while unique to India, illustrate the tensions between four compet-
ing different types of law that must be balanced everywhere, all the time. They
introduce the kite methodology of comparative law to include not only state law
and modern human rights concerns, but also socio-economic considerations and
traditional ethical and religious elements as competing forms of ‘natural law’.
This chapter makes an interesting argument that imposing a UCC or banning
or criminalisation of certain aspects of Muslim law and practice are not going
produce any constructive resolve. A skilfully balanced, constitutionally sound
approach needs to maintain freedom of religion while reminding India’s Muslim
citizens that they are part of this composite whole with its unique laws. This
involves the balancing of competing forms of respect for the basic human need
everywhere, and in all communities, to feel connected to certain significant ‘oth-
ers’ in responsible modes of interaction.
Abdul Matin’s chapter on Decoding Uniform Civil Code (UCC): A Sociological
Analysis, expands the scope of our discussion by emphasising Muslim hetero-
geneity. He highlights that fact that, like other social groups, Muslims are also
divided on castes lines. They may be comprehended in terms of three hetero-
geneous categories of Ashraf (higher castes/nobles), Ajlaf (commoners/lower
6 Hilal Ahmed

castes/OBCs) and Atraf (dalits). While Ashrafs had substantial access to economic
and non-economic resources, Ajlafs and Atrafs were either excluded from these
resources or they had a very limited access to these resources. Differential access
to resources resulted into differential social in/justice historically. However, fol-
lowing independence, various reformative measures and structural adjustments
after 1991 have impacted Muslim society by limited upward social mobility,
especially amongst the marginalised Muslims. The Ajlafs and Atrafs challenge the
traditional role of the urban Muslim elite in an era of growing contradictions.
The chapter argues that it would be interesting to observe how the state is going
to recognise the Muslim heterogeneity in relation to UCC and reforms in MPL.
Furqan Ahmad examines the idea of MPL from the vantage point of human
rights in Chapter 4. Mapping out the debates on MPL and UCC since indepen-
dence, this chapter shows how the replacement of personal laws with a Uniform
Civil Code is seen as a progressive idea. The reforms in MPL are justified by giv-
ing reasons that Muslim Law is not fair towards Muslim women on the ground of
human rights, and it is discriminatory. It is further claimed that Muslim Personal
Law has no scope for change as it is rigid, so the legislature and judiciary should
change it arbitrarily without consulting even a law person of the field and without
obtaining any consensus in society in this matter. Ahmad notes that those who
are in favor of reform are not bothered whether such reforms would ameliorate
the position of Muslim women or cause more problems for them. The chapter
makes an effort to discuss major controversial issues pertaining to MPL – such as
bigamy, polygamy and triple talaq, which are often targeted in the name of human
rights violation of Muslim women. The chapter suggests the techniques that can
be used to bring Muslim Personal Law reform within the ambit of human rights.

Politics of MPL/UCC
The politics of MPL is the second thematic concern of this volume. It is important
here to highlight the fact that MPL has been a crucial component of postcolonial
Muslim politics. Precisely for this reason, we must pay attention to those mean-
ings, forms and trajectories of Muslim politics that define its broad contours.
Muslim politics, I argue, must be approached as a multifaceted discourse that draws
its inspiration from two sources – the Constitution and the established principles
of Indian politics. I find three norms of Muslim politics that are relevant for our
discussion: (a) The strict adherence to the legal–constitutional discourse of rights/
secularism. (b) The propagation of Muslim culture and history as a contribution
to Indian civilisation and nation building. (c) The emphasis on Muslim unity and
collective political action.7 These norms, as we can see, are compatible with the
legal–constitutional framework of rights and at the same time are capable of deal-
ing with the emerging political configurations, including political Hindutva. The
politics of MPL contributes news meanings to these evolving norms.
Nazima Parveen’s chapter Muslim Personal Law and triple talaq: Claims, coun-
ter-claims and the media discourse looks at the popular representation of the triple
 Introduction 7

talaq controversy. She examines the claims and counterclaims made by different
political actors on three core issues – the practice of instant triple talaq called talaq
al-bid’ah, the Muslim Personal Law (MPL) and the Uniform Civil Code (UCC) –
and their popular media representations. For the sake of analysis, the chapter
divides these claims into two categories: those who support the government’s
legal initiatives to ban and criminalise the practice of instant triple talaq (the
supporters); and those who oppose the triple talaq bill and criticise the govern-
ment for its overt politicisation. The binary between the supporters/opponents, the
chapter shows, produces a dominant media-driven discourse. Parveen argues that
the nuanced arguments, especially those made by Muslim women’s organisations,
do not find any space in these highly charged political debates.
Maidul Islam unpacks the other crucial layers of this debate. It contextual-
ises the Supreme Court’s landmark judgment on triple talaq, which defines the
practice of instant triple talaq (talaq-e-biddat or heretical and irregular mode of
divorce) as unconstitutional. Islam maps out the political trajectory by examin-
ing ways in which the central government introduced and passed The Muslim
Women (Protection of Rights on Marriage) Bill in December 2017. This chapter
analyses the theological, judicial and political discourse that has been part and
parcel of the public debates on instant triple talaq in the aftermath of passing the
2017 Bill. Islam suggests that the judicial pronouncement has created a condition
for the possibility of reforming Muslim Personal Law in India. In his opinion
the principle of punishment for pronouncing instant triple talaq has a precedent
in Islamic history. Thus, personal laws can be and must be reformed to address
the new contexts, necessities and changing scenarios of the social lives of Indian
Muslims. However, the first step towards reforming the Muslim Personal Law
will be to create a space of fair dialogue, debates and discussions within the
various Muslim communities in India across caste and linguistic differences. It is
through dialogue that genuine initiatives must be taken by the progressive sec-
tions of Indian Muslims to convince and pursue the conservative sections of the
Muslim community in reforming the personal law in general and banning the
practice of instant triple talaq in particular.
My chapter, Politics of Shariat in Postcolonial India, investigates the placing of
Shariat in the postcolonial Muslim political discourse. Exploring the ways in
which constitutionally granted minority rights are identified as potential sources
for articulating political arguments and positions, this chapter looks at two con-
ceptual questions: (a) What are the forms in which Shariat is represented as a
political issue? (b) How do these varied political forms draw legal–constitutional
legitimacy? I argue that MPL and UCC are always defined in political terms.
Hence, it important to understand the ways in which the idea of Shariat is inter-
preted the realm of politics.
The last two chapters of the book explore the gender question and its rela-
tionship with UCC/MPL debates. Misbah Rashid’s chapter, Challenging the
Hegemonic Discourse – AIMWPLB and Gender Justice, focuses on the activities
of the All-India Muslim Women Personal Law Board (AIMWPLB), a Muslim
8 Hilal Ahmed

women’s organisation based in Lucknow. This chapter looks at the involvement

of AIMWPLB in reinterpretation of Islamic laws concerning women. It is shown
how these gender-just interpretations of Islam not only challenge the patriar-
chal constructions of the Islamic laws by male clergy but also seek reforms of
laws within religious boundaries. The Board members as an informal adjudi-
cative body interpret Islamic laws of polygamy, divorce and maintenance, and
uphold the rights of the women with regard to the cases that approach the Board.
The chapter discusses the divergent opinions the Board has with regard to the
Muslim Personal Law and All India Muslim Personal Board. Rashid argues that
the Muslim positioning to MPL is fragmented, critical and complex along lines of
gender and religious ideology. Therefore, it should not be understood as uniform
and linear.
Irfan Engineer’s chapter, Gender Equality Should Guide the Process of Reforming
Family Laws and Not National Integration, makes a powerful argument in favor
of UCC from a very different vantage point. He asserts that what we need is a
“Uniform” Civil Code and not “Common” Civil Code. Evoking Ambedkar’s
statement in the Constituent Assembly that the UCC need not be enforced on
unwilling citizens, Engineer claims that we should march towards a uniform
regime of gender-just family laws but also draw from the diverse traditions and
allow space for diversity. In his opinion gender equality alone should be guiding
this process and the same could be achieved through gradual reforms of existing
family laws.
The purpose of this volume is to have an informed academic/public discus-
sion on MPL, UCC and legal pluralism in the Indian context. Precisely for this
reason, it would be useful to look at the popular perception about triple talaq and
the MPL-driven family courts, Darul Qaza, in contemporary India. The findings
of the recently published Pew Research Center’s study, Religion in India: Tolerance
and Segregation, is especially relevant in this regard.8
This report tells us that there is an overwhelming rejection of triple talaq
in India (Table 0.1). A significant majority of Indian Muslims (56%) argue that
Muslim men should not be allowed to practice this form of divorce. However,

TABLE 0.1 Opinion on the triple talaq issue

Yes No Do not know

All India 14 68 18
Hindu 11 70 19
Muslim 37 56 07
Christian 14 44 42
Sikh 5 71 23
% of Indian adults who say Muslim men should be able to divorce their
wives by saying ‘talaq’ three times
Source: Religion in India: Tolerance and Segregation, Pew Research Center
2021.
 Introduction 9

TABLE 0.2 Muslim opinion on triple talaq

Yes No Do not know

Men 42 52 6
Women 32 61 7
% of adult Muslims who say Muslim men should be able to divorce their
wives by saying ‘talaq’ three times
Source: Religion in India:Tolerance and Segregation, Pew Research Center 2021.

TABLE 0.3 Muslim response on triple talaq (region-wise)

Region Yes No Do not know

North 25 67 8
Central 30 70 1
East 39 53 7
West 27 71 3
South 58 30 12
North-East 50 34 16
All India 37 56 7
% of adult Muslims who say Muslim men should be able to divorce their wives
by saying ‘talaq’ three times
Source: Religion in India:Tolerance and Segregation, Pew Research Center 2021.

37% of Indian Muslims still support this custom. The repose of Muslim women
is also noticeable. A sizeable majority of Muslim women (61%) oppose triple talaq
(Table 0.2).
The regional configuration of this Muslim opinion introduces us to a very dif-
ferent dimension (Table 0.2). According to this report, triple talaq seems to have
significant support among the Muslims of southern and north-eastern regions
where more than half of Muslims say that triple talaq should be allowed to con-
tinue (58% and 50%, respectively). Interestingly, Muslims living in the north
and central India, which are often seen as symbolic centers of Islamic presence,
strongly oppose this practice of divorce. For instance, 67% of Muslims in north
and 70% in central India are not in favor of it.
The Pew Report also offers us a few crucial findings about the existence of
Darul Qaza. One finds a mixed national attitude on this question (Table 0.4). Of
Indians, 35% support these courts while 38% clearly reject them. Approximately a
quarter of Indians (27%) do not take any position on this issue. On the other hand,
a clear majority of Muslims (74%) strongly argue that they should be allowed to
have Darul Qaza to resolve civil disputes. Interestingly, the non-Muslim com-
munities do not outrightly reject the MPL-driven Muslim community institu-
tions. A section of Hindus opposes (41%) this idea, while around 30% of Hindu
respondents do not find any problem with it.
These findings, we must note, should not be seen as self-explanatory answers
or definite opinion. Survey data does not provide any definite, unambiguous and
10 Hilal Ahmed

TABLE 0.4 Should Muslims have their own religious courts?

Religion Support Oppose Do not know

Muslim 74 18 9
Hindu 30 41 28
Christian 27 27 46
Sikh 25 39 37
Buddhist 33 48 19
Jain 33 45 22
Total 35 38 27
% of Indian adults who support allowing Muslims to go to their own religious
court to solve family disputes
Source: Religion in India:Tolerance and Segregation, Pew Research Center 2021.

explicit answers to the complex real-life issues; rather a different reading of such
information offers us new insights and empowers us to redesign the contours of
our intellectual explorations.

MUSLIM PERSONAL LAW AND TRIPLE TALAQ DEBATE:

FREQUENTLY USED TERMS
Triple Talaq: a social/religious practice, which empowers a Muslim man to divorce
his wife by saying, talaq, in one go.
Mehr is a sum of money or other property to be delivered to the bride by the
bridegroom at the time of the Nikaah as a condition precedent for solemnisation
of their marriage, as specified in the Nikaahnama.
Iddat is a period of time (approximately three to four months) in which a
divorced woman/widow cannot remarry to another man.
Nikah is a contract of marriage between a male and female. Nikahnama is a
document that specifies the terms and conditions of this agreement.
Sharia or Shariat is a collection of rules and norms that have been codified
following the Quran and Hadiths (sayings and acts of the Prophet Mohammad).
Since this codification is subject to various interpretations, there are various shari-
ats among sunnis and shias.
Nikah-Halal is also a frequently used term. Once a woman has been divorced,
her husband is not permitted take her back as his wife unless the woman under-
goes nikah halala, which involves her marriage with another man who subse-
quently divorces her so that her previous husband can remarry her.9

From our point of view, two important aspects need to be underlined here. First,
the triple talaq phenomenon as a Muslim issue has lost its wider acceptability
among Muslim communities. Unlike the Shah Bano moment of Indian Muslim
politics, the ulema class is not in position to mobilise Muslim masses in the
name of Sharia. There is a clear indication that Muslim communities, especially
 Introduction 11

Muslim women, are in favor of a reformed, egalitarian and gender-just frame-

work of MPL. This leads us to the second possible inference. The overwhelming
Muslim support to Darul Qaza–type community institutions underlines the fact
that, like other social groups, Muslim communities do prefer to have consultative
mechanisms to solve family/civic disputes.10 The essays in this volume treat these
two preliminary observations/inferences as a point of departure for asking more
nuanced questions.

Notes
1 Law Commission of India’s consultation paper on the Reforms of Family Law
2018, accessed July 10, 2020, http://www.lawcommissionofindia.nic.in/reports/
CPonReformFamilyLaw.pdf
2 Richard M Eaton, Eaton, Richard M., “Approaches to the Study of Conversion to
Islam in India,” In Approaches to Islam in Religious Studies, ed. Richard C. Martin (New
York: One World Press, 1987), 106–23, 11.
3 Sebastian R. Prange, Monsoon Islam: Trade and Faith on the Malabar Coast (Cambridge:
Cambridge University Press, 2020).
4 Sudipta, Kaviraj, “On the Construction of Colonial Power: Structure, Discourse,
Hegemony,” In Politics in India, ed. Sudipta Kaviraj and Sudipta (Delhi: Oxford
University Press, 1997), 141–142.
5 Hilal Ahmed, Siyasi Muslims: A Story of Political Islams in India (New Delhi: Penguin
Random House, 2019), 3–28.
6 Peter R de’Souza, Hilal Ahmed and M. Sanjeer Alam, Democratic Accommodations:
Minorities in Contemporary India (London and New Delhi: Bloomsbury, 2019).
7 Hilal Ahmed, Muslim Political Discourse in Postcolonial India: Monuments, Memory,
Contestation (London and New Delhi: Routledge, 2014), 128.
8 This was a comprehensive in-depth exploration of India’s contemporary religious
life. The report is based on interview of 29,999 Indian adults (including 22,975 who
identify as Hindu, 3,336 who identify as Muslim, 1,782 who identify as Sikh, 1,011
who identify as Christian, 719 who identify as Buddhist, 109 who identify as Jain
and 67 who identify as belonging to another religion or as religiously unaffiliated).
Interviews for this nationally representative survey were conducted face to face from
November 2019 to March 23, 2020. The questionnaire was developed in English and
translated into 16 languages, independently verified by professional linguists with
native proficiency in regional dialects. See https://www.pewforum.org/2021/06/29/
religion-in-india-tolerance-and-segregation/(accessed October 22, 2021).
9 Hilal Ahmed, Siyasi Muslims, Op. cit., 126–127.
10 Since the Pew report does not collect information about community institutions
of other religious groups, we do not have any comparable data/information in this
regard.
PART I
History and Law
1
OF STATUTES AND SCRIPTURES
Diversity, Democracy, Personal Laws and Courts

M. R. Shamshad1

I. Introduction: What Is Personal Law?

Before the colonial rule in the subcontinent, both Hindu and Muslim local rulers
had adopted a community-specific and religion-based system of law to be applied
in the matter of religious rites, personal status, family relations and succession –
in the Muslim-ruled areas Hindus were governed by Hindu law and vice versa.
Early British rule, in accordance with Warren Hasting’s Judicial Plan of 1772,
termed Hindus as ‘Gentoos’ and Muslims as ‘Muhammadans’ with their laws being
‘Laws of the Saster’ and ‘Laws of the Koran’ respectively.2 The Regulating Act of
1773, rectified by the Act of Settlement of 1781, directed the Supreme Court at
Calcutta to decide ‘matters arising out of inheritance and succession to land and
goods’ and matters of ‘contract and dealing between party and party’, ‘by the
laws and usages of Muhammadans’ in the case of Muhammadans and ‘by the
laws and usages of the Gentoos’ in the case of Gentoos. Beyond the presidencies,
the Adalat system introduced by Warren Hastings in 1772 in Bengal, Bihar and
Orissa was directed to decide all cases of inheritance, marriage, caste and other
religious usages and institutions according to the laws of the Koran with respect
to the Muhammadans and the laws of the Shaster with respect to the Hindus.
However, in 1781, this provision was supplemented by a provision to the effect
that in all cases for which no specific directions were given, the adalats were to
act in accordance to justice, equity and good conscience.3
These very religion-based and community-specific laws governing the inter-
personal relations of religions and communities came to be known as “personal
laws”.4 However, given the dual family law regime in force, people who are
governed by these personal laws can avail parallel “general laws” too for these
respective interpersonal issues.5 Moreover, besides these communities’ spe-
cific personal laws, general laws attracting criminality in human behavior and

DOI: 10.4324/9781003211884-3
16 M. R. Shamshad

procedure governing the court system are applicable across communities.6 Under
these legislations there are no exemptions on the ground of religion7 as these leg-
islations are stated to be general or uniform in nature. However, I will refute this
understanding later in this chapter.
The British laid the foundation of the present-day criminal law jurisprudence
in India. By and large it is uniform for all, be it substantive law or procedural.
British onwards, the conviction and sentencing have been non-negotiable except
for the petty offences. However, post 2005, India has adopted a situationist
approach for certain classes of cases by introducing the concept of ‘plea bargain’8 at
the stage pendency of a criminal trial.9 In a plea bargain, the accused and the vic-
tim can work out mutually satisfactory terms of disposition, and then the judge
exercises his or her power to dispose of the case as the court deems appropri-
ate. Resultantly, even in rape cases, with consent, sometimes parties resolve the
issues and proceed in their life10 or decide to live together.11 The issue here is that
world over, nations have sought to introduce measures of reform and this goes in
consonance with the pre-British era, when Islamic criminal law and customary
laws permitted such resolutions. Between 1790 and 1807, the British transformed
Islamic criminal law totally and beyond recognition12 and replaced all customary
methods of punishment.
Likewise in matrimonial matters, there is a plea pending13 before a constitu-
tion bench of the Supreme Court for declaring the Nikah-Muta14 and Nikah-
Misyar15 as ‘unconstitutional’. These practices have almost disappeared in Islam but
the concepts are very well practiced by non-religious persons and well accepted
by the legal system under the term ‘live-in relationship’. Urban society of India
has almost accepted it. However, the fact remains that be it ‘live-in relationship’
or Nikah-Muta and Nikah-Misyar, all are based on the consent of the couple.
The Supreme Court accepts the ‘live-in relationship’ as part of the fundamental
freedom of an individual. Today, there is no justifiable reason to question these
practices. Nonetheless, these petitions challenging Nikah-Muta and Misyar have
created the desired Islamophobic contents for consumption of vocal electronic and
print media and fodder for a set of political parties. In public debates, nobody
pointed out the positive aspect of it by saying that a 1400-year-old concept is
accepted worldwide as a part of basic fundamental freedom. To ensure this right,
our courts have made lots of efforts and invested precious judicial time in an
overburdened judiciary. Now the same right (though under challenge) is avail-
able as a constitutional right, drawing its legitimacy through the route of ‘consti-
tutional morality’ of the present times. While giving this judgment, a five-judge
bench of the Supreme Court has gone to the extent of saying that ‘procreation
is not the only reason for which people choose to come together, have live-
in relationships, perform coitus or even marry. They do so for a whole lot of
reasons including emotional companionship’16 and the ‘Society cannot dictate
the expression of sexuality between consenting adults. That is a private affair.
Constitutional morality will supersede any culture or tradition’.17 This view of
the Supreme Court has come during the pendency of the cases relating to Muta
 Of Statutes and Scriptures 17

and Misyar. We need to wait and see how these two concepts are decided by the
Supreme Court. Interestingly, the same judges referred the issue of Nikah-Muta
and Nikah-Misyar to a larger bench of five judges prior to deciding the case of
Navtej Singh Johar.18

II. Customary Law and Personal Law

On the intersections of identities, Amartya Sen lucidly puts it, “The crucial need
to take note of the plural identities of people and their choice of priorities survives
the replacement of civilizational classifications with a directly religious categori-
zation”.19 Thus, identities can never be seen in vacuums.
India has a vast socio-religious and geopolitical diversity owing to India’s rich
heritage of multiculturalism and being home to major religions – in fact four
major religions, viz. Hinduism, Buddhism, Sikhism and Jainism, emerged from
India. These diversities, of various natures and degrees, inevitably have impres-
sions over the history of law in India.
A well-recognized principle of jurisprudence is that the State is not the only
source of law. In both Hindu and Muslim jurisprudence, the importance of cus-
tom has been well acknowledged. If we go back to the early history of the sub-
continent, besides religious groups following their different religious laws, the
presence of customs and usages acquiring the status of law in different parts of the
country is historically prevalent.
After initial ignorance towards the customary law, owing primarily to the
imperialistic approach, the colonial administrators acknowledged the importance
of customs and usages statutorily.20
The Bombay Presidency, Regulation IV of 1827 assigned precedence
to custom over the personal law. The object of Sec. 37 of the Bengal Civil
Courts Act (XII of 1887), and the old regulations was to make it clear that the
Muhammadans were not to be governed by the English law, and the personal
law of the Muhammadans was left intact. Sec. 37 did not preclude a party from
proving a custom at variance with the Muhammadan law. Such custom could be
proved in the Punjab and in Oudh. The colonial state, after the annexation in
Punjab (1849), had to make a declaration that “native institutions and practices
shall be upheld as far as they are consistent with the distribution of justice to
all classes” considering the region of Punjab, particularly the rural areas, were
inhabited by various tribes following various customary laws.21 Consequently
Section 5 of the Punjab Laws Act, 1872, laid down the precedence of native
law over Hindu and Muhammadan law regarding succession, special property of
females, betrothal, marriage, divorce, dower, adoption, guardianship, minority,
bastardy, family relations, wills, legacies, gifts, partitions, or any religious usage
or institution. Similarly, in Oudh Laws Acts, 1876 (Section 3), N.W.F.P. Reg. VII
of 1901 (Section 27), Central Provinces Laws Act, 1875, customs were given pre-
cedence over the personal laws. Large tribes like Baluchis had their special cus-
toms while adhering to Islamic faith. The Hindus were governed by their special
18 M. R. Shamshad

customs, and so were the Khojas and Memons in Bombay to the matrilineal laws
in Malabar and Travancore.
In the year 1868,22 while deciding a Hindu religious endowment right of suc-
cession, the Privy Council stated that “the duty, therefore, of an European Judge,
who is under the obligation to administer the Hindoo Law, is not so much to
enquire whether a disputed doctrine is fairly deducible from the earliest authori-
ties, as to ascertain whether it has been received by the particular School which
governs the district with which he has to deal, and has there been sanctioned
by usage. Under the Hindoo system of law, clear proof of usage will outweigh
the written text of law.” In 1869,23 in relation to Hindoo laws, again the Privy
Council stated that “where a custom is proved to exist, it supersedes the general law…”.
In the year 1847,24 the Bombay Supreme Court upheld the practice of Hindu
customs of inheritance and succession for Khojas25 and Cutchi Memons26 over
Muslim law. Much later in 1913,27 in a suit by a Muhammadan lady against her
brothers for recovery of her share in their father’s property, the defendants hav-
ing set up the plea that according to family custom female descendants could not
inherit in the presence of male descendants, the courts in India refused to admit
evidence in support of the alleged custom on the ground that evidence of custom
at variance with the ordinary rules of Muhammadan law was inadmissible in
regard to matters, mentioned in Section 37 of the Bengal, N.W.P and Assam Civil
Courts Act. Reversing the lower courts, the Privy Council held that evidence
with respect to the issue as to family custom should be admitted. Thereafter, in
1917,28 a Shiite Muslim of Sind died intestate and an administration suit was filed.
It was alleged by the appellant that contrary to the general rule of Muhammadan
law, by a custom of the family the sister of the intestate was excluded as a female
in favour of male collaterals. The Court emphasized on the burden of proof that
lies heavily upon the Plaintiff alleging custom in order to succeed in altering the
devolution of property according to Muhammadan law to a devolution deter-
mined by a family custom.29
In a case in 1922,30 the parties to the litigation were Lubbai Muhammadans of
the Sunni sect residing in the district of Coimbatore in the Madras Presidency;
the question was whether succession to the estate of a deceased member of the sect
was governed by Muhammadan law or by a rule of descent excluding females.
The Privy Council stated that “The litigants are Muhammadans to whom this
Act applies so that primâ facie all questions as to succession among them must
be decided according to Muhammadan Law”. It clarified that in India, however,
custom plays a large part in modifying the ordinary law, and it is now established
that there may be a custom at variance even with the rules of Muhammadan law,
governing the succession in a particular community of Muhammadans. But the
custom must be proved.
The history of customs taking precedence over personal laws in the subconti-
nent thus have often been misused in depriving property rights to women. With
the Muslim Personal Law (Shariat) Application Act, 1937, specific legislation
directing courts to apply Muslim law in matters of intestate succession, special
 Of Statutes and Scriptures 19

property of females, etc. (see Section II) was brought into existence. Any custom
that merely excludes women from inheritance has been done away with.31 It is
interesting to read the statement of objects and reasons of the Shariat Act of 1937
which records32 that the reason of bringing this legislation was that all Muslim
women organizations condemned customary laws and demanded that Muslim
Personal Law should be made applicable to them.
The importance attached to customs, particularly in the subcontinent, given
the intersections of various identities, can neither be denied nor be reduced. The
Madras High Court 33 upheld a custom allowing succession rights to an adopted
child in view of the fact that Section 2 of the Shariat Act did not specifically men-
tion ‘adoption’ and secondly it found that there was no prohibition from applying
customs in view of the reading of Section 3 of the Shariat Act.34
The Calcutta High Court 35 has stated that the personal laws of the parties
to the marriage would mean ‘customary law of the class to which such person
belongs’. This is a generalised observation and at least, to the extent of Islamic
Personal Law, this observation is incorrect. Various practices of conducting and
terminating marriages can be a matter of custom prevailing amongst a common
class of persons belonging to a religion or a tribe that does not follow any major
or commonly known religion. Those customary practices may be consistent and
followed strictly. Hence, all customary practices can’t be understood to be part
of ‘personal law’.
Under the Hindu system of law, clear proof of usage will outweigh the writ-
ten text of the law.36 The specific legislation, as codified in terms of the Hindu
Marriage Act, 1955, itself makes the Act inapplicable for a very large section of
people who may be Hindu in their religious belief but still the mandate of the
Act is not applicable for them. Section 2(2)37 of the Act states that the provisions
setout therein shall not apply to Scheduled Tribes within the meaning of Clause
25 of Article 366.38 Secondly, in terms of Section 29(2),39 the Act gives a general
exemption to all those who may be Hindu but the provisions under the Act shall
not affect any recognized custom or any local special laws (which may also be
contrary to this Act). The rights of an exempted Hindu under Section 29(2) can
be illustrated with the judgment of a High Court40 wherein an approved custom
of divorce has been held to be valid. In this case the custom was that if a wife
leaves her husband and elopes with another man, the second husband returns the
marriage expenses and bride price incurred to the former husband. If this type
of divorce is valid in terms of codified law of marriage and divorce in the Hindu
religion, one must keep in mind as to how the legislature has treated utterance
of ‘talaq’ of a particular nature in Muslims by bringing a harsh and excessive
criminal legislation. In this context, even the ratio of majority judgment of the
Supreme Court on the issue of talaq is somehow a difficult proposition to justify
if one views this purely as customary practice.
In relation to succession of property, the Hindu Succession Act is not appli-
cable to various tribes having Hindu belief systems. This fact has been recorded
in Madhu Kishwar’s case.41
20 M. R. Shamshad

Even today, unlike matrilineal practices among Nayars and Ezhavas of

Travancore who were attacked as “non-Hindus” and thus radically transformed
or ruined, Mappila Muslims retained a matrilineal kinship structure by placing
reliance upon customary practices and utilising institution of waq f.42 The Garo
and Khasi tribes of Meghalaya are matriarchate too. Among these tribes, the
son-in-law comes to live with his wife’s parents.43 The Portuguese Civil Code
remains in force in the territories of Goa, Daman and Diu along with the codes
of native customs and usages. Neither the Shariat Act nor Hindu codified laws of
1955–56 are applicable. Hindus are governed by the unreformed Shastric Hindu
law on marriage, divorce, adoption and joint family.44 Muslims of Goa are gov-
erned by Portuguese law as well as Shastric Hindu law.45 In Puducherry, all the
central family laws extend with a rider that they would not apply to the “renon-
cants”, i.e. the native population that opted for the Code Napoléon of 1804 and
not personal laws during the French rule – before the territory’s merger into the
Union of India.46 As of late 2019, Jammu and Kashmir remained excluded from
the central laws vide Article 370 of the Constitution, overriding the applicabil-
ity of central family laws. In Jammu and Kashmir, the local statutes governing
Hindus differ from the central enactments.47 Muslims are governed by customary
law different from the Muslim Personal Law in other regions. In Nagaland and
Mizoram, no parliamentary legislation (here central family laws) can replace the
customary law unless demanded by the local legislature.48
Furthermore, the sixth schedule of the Constitution of India provides pro-
tections to tribal areas in the states of Assam, Meghalaya, Tripura and Mizoram
whereby vide certain provisions complete autonomy on matter of family law is
provided. These matters can also be adjudicated by the local panchayats following
their own procedures.49 Notably, the sixth schedule, which provides for autono-
mous districts and autonomous regions, provides legislative competence to these
district councils and regional councils. Theses councils are competent to deal
with subjects like inheritance, succession, marriage and divorce. Interestingly,
the special provisions are not only confined to the domain of interpersonal mat-
ters but rather stretch over the arena of the administration of justice too. These
councils are competent to frame rules to lay down the procedures for trial of suits
and criminal cases and for execution of orders/judgments. It’s a known fact that
the Hindu Marriage Act prohibits marriages amongst close relatives. However,
these marriages are considered auspicious among the Hindus of the Southern part
of India. These customs are taken care of by Hindu Acts recognizing customs of
different Hindu communities. Naturally, even after codifications, all Hindus are
also not governed by one law.

III. Islamic Laws and the Muslim Personal Law in India

Muslim Personal Law, just like any other law, has its base engraved in the text
of the Qur’an and then the sayings and teachings of the Prophet Muhammad.
Thereafter, it takes its source from a detailed, intricate and well-documented
 Of Statutes and Scriptures 21

scholarly tradition of Islam. One important factor that is to be understood to

understand this nuance is the acknowledgment of the heterogeneity among
Muslims, i.e. Islam being one of the most diverse religion in the world. From
these scholarly traditions, Muslims do follow slightly different interpretations
of particular subjects throughout the world. Most of the jurisprudential aspects
are in consonance through all madhabs (schools of thought). There are only some
subjects that witness difference of opinion among scholars, with some having a
stricter position and some a little lenient. However, these differences are not in
nature of conflicts but rather in nature of dissent and dialogue among Muslim
scholars with a follower of one madhab having full liberty to follow an interpreta-
tion of a different madhab. Muslims in India, based on their regions, do follow
certain different practices and rituals but this is not to be confused with nega-
tion or in contravention to Islamic law. Scholars throughout the history of Islam
with their works have tried to find a common ground between Islamic ideals
and indigenous practices. In early Islam, we see a beautiful blend of the custom-
ary practices of Arabs with Islamic ideals. In the southern part of India, we see
attempts to retain a pure customary matrilineal practice within the four walls
of Islam through the institution of waq f. Interestingly, in India even codified
Hindu law is supremely Brahman in nature with practices such as kanyaadan and
satpati, which are intrinsically Brahmin rituals finding their way in the codified
law. In this sense, is Muslim Personal Law in India Islamic? The answer is affir-
mative based on the sources, history, and objective of Muslim Personal Law in
India. Muslim Personal Law in India is in consonance with Islamic principles/
sources and, given the legal history, will keep falling back to the defined sources
of Islamic law to derive legitimacy among Indian Muslims. That is the only way
Muslim law will further be refined and that is the primary reason why Muslim
Personal Law intrinsically is Islamic law.

IV. The Conundrum between Uniform Civil Code and Personal

Laws
In a country as diverse as India, the conundrum of freedom of religion and
right to equality has existed since the very inception of India as a constitutional
democracy. While discussing the scope of protection of Rights of Minorities
to establish and administer educational institutions of their choice, in 2002 the
Supreme Court of India, in a judgment50 by an 11-judge bench (one of the larg-
est benches the Supreme Court of India has constituted in the past), narrated the
contemporary position of its diversity in the following words:

The one billion population of India consists of six main ethnic groups and
fifty-two major tribes; six major religions and 6400 castes and sub-castes;
eighteen major languages and 1600 minor languages and dialects. The
essence of secularism in India can best be depicted if a relief map of India is
made in mosaic, where the aforesaid one billion people are the small pieces
22 M. R. Shamshad

of marble that go into the making of a map. Each person, whatever his/her
language, caste, religion has his/her individual identity, which has to be
preserved, so that when pieced together it goes to form a depiction with the
different geographical features of India. These small pieces of marble, in the
form of human beings, which may individually be dissimilar to each other,
when placed together in a systematic manner, produce the beautiful map of
India. Each piece, like a citizen of India, plays an important part in making
of the whole. The variations of the colours as well as different shades of the
same colour in a map are the result of these small pieces of different shades
and colours of marble, but even when one small piece of marble is removed,
the whole map of India would be scarred, and the beauty would be lost.

There are other paragraphs of the judgment which are relevant in this context.51
More recently, on 31 August 2018, the Law Commission of India recorded the
diversity of the country in terms of the following,

While diversity of Indian culture can and should be celebrated, specific

groups, or weaker section of the society must not be dis-privileged in the
process. Resolution of this conflict does not mean abolition of difference.
This Commission has therefore dealt with laws that are discriminatory
rather than providing a Uniform Civil Code which is neither necessary nor
desirable at this stage. Most countries are now moving towards recognition
of difference and the mere existence of difference does not imply discrimi-
nation but is indicative of a robust democracy.

It also recorded that a ‘United’ Nation need not necessarily have ‘Uniformity’.
It is necessary to give some background to the basis on which the issue of
Uniform Civil Code is under discussion at the present time. After a long debate
in the Constituent Assembly (for framing the Constitution of India), Article 44
was made part of the Constitution in Part IV, i.e the Directive Principles of State
Policy Section which says that ‘the State shall endeavour to secure for the citizens
a Uniform Civil Code throughout the territory of India’. While discussing the
requirement of such a provision in the Constitution of India, it looks like the
debate of the members were in two opposite directions. Members who opposed
such mention in the Constitution stated that the right of a group or a community
of people to follow and adhere to its own personal law was in the nature of funda-
mental rights and this provision should only remain in the statutory and justicia-
ble fundamental rights. One member52 stated that ‘for creating and augmenting
harmony in the land it is not necessary to compel people to give up their personal
law’. Another member53 advanced his argument by stating that ‘each community,
each religious community has certain religious laws, certain civil laws insepa-
rably connected with religious belief and practices’ and accordingly his view
was that in framing Uniform Draft Code theses, religious or semi-religious laws
should be kept out of its way. He expected that a time may come in future when
 Of Statutes and Scriptures 23

the civil law would be uniform by stating that the issue of Uniform Code was
not a matter of ‘mere’ idealism but a question of ‘stern reality’. It was pointed out
that the reality was reflected from the way Britishers ruled for 175 years and failed
to do so or was afraid to do so and the same way Muslims in the course of 500
years of their rule refrained from doing so. Another member54 stated that secular
state did not mean that there must be common law observed by all its citizens in
all matters including matters of daily life, their language, their culture and their
personal laws. One member55 supported the idea that there should be a proviso
to this provision stating that ‘Provided that any group, section or community of
people shall not be obliged to give up its own personal law in case it has such law.’
He went to the extent of saying ‘this provision to be tyrannous provision which
ought not to be tolerated’.
On the other side of the argument, one member56 stated that he wanted to
‘divorce religion from Personal Law, for what may be called social relations or
from the Rights of the parties as regards to inheritance or succession’ and further
stated that ‘the house must unify and consolidate the Nation by every means
without interfering with the religious practices.’ By citing diversities amongst
Hindus, he also opined that it was not merely a question of minorities in India but
also affected the majority. Another member57 propagated the issue of adaptability
by saying that the community needs to adapt itself to changing times and stated
that the Hindus were willing to take a lesson from the minority and adapt their
Hindu laws and take a leaf from the Muslims for the purpose of reforming the
Hindu laws. While participating in the discussion, Dr. Ambedkar referred to the
pre-1937 position of India to state that in large parts of the country, the Muslims
to a large extent were governed by Hindu law in a matter of succession; only
in 1937 did the legislature intervene to pass an enactment applying the Muslim
Personal Law to the rest of India. The example of Kerala (North Malabar, the
Murumakkathayam Law) was cited. He stated that it is possible that the future
Parliament may begin the Code only after taking declaration from the concerned
community that they were prepared to be bound by it and hence at the initial
stage the contemplated Code may be purely voluntary. He goes further to cite
the example of the Shariat Application Act of 1937, which was to be applied to
the Musalmans and provided that a Musalman who wanted to be bound by the
said Sharia Act should make a declaration to that effect; once such declaration
was given, it would bind him and his successors. Dr. Ambedkar projected this
as one of the possible options for the Parliament to introduce the provisions of
the Uniform Civil Code so that the fear expressed could be altogether nullified.
Since Dr. Ambedkar cited the example of the Shariat Application Act, 1937, for
complete understanding of the contemporaneous situation it is relevant to read
the extracts of aims and objects of the said Act.58
Rev. J. J. M. Nichols-Roy, a tribal from the Khasi hills, placed the demand
for autonomous governance in the tribal regions in the Constituent Assembly.
The demand was opposed by fellow members on the ground of division and
instigating communism. Roy was accused of proposing a “Communistan” on the
24 M. R. Shamshad

lines of Pakistan.59 Roy made some interesting submissions. He stated that, “the
first principle for bringing about a feeling of reconciliation between people
who are estranged from one another is that one must place himself in the place
of another.”60 The debunking of myth of tribal inferiority initiated the pro-
posal being accepted and the Sixth Schedule being added to the Constitution
of India.
Considering India’s pluralistic principles, vast diversity and multicultural-
ism, it was realised by the makers of the Constitution that laws in India are not
governed solely onreligious premises but vastly on regions. With these views in
mind, personal laws remain in the Concurrent List of the Constitution of India,
i.e. empowering the states and the central government to make laws. Certainly,
the constitutional intent was never to have a compulsory UCC. Legal plural-
ism, or having multiple parallel legal regimes, throughout the world is seen as an
important marker of inclusivity, tolerance and civility. Such exemptions based on
diversity are not only confined to personal laws, but even the general laws are
not uniform throughout states. More than a hundred amendments to the Code
of Criminal Procedure and IPC have been made by states.61 This is not new or
to be frowned upon; to preserve legal diversity, democratic nations imbibe these
principles. In the United States, for example, criminal law differs from state to
state. Land laws in India have also been exempted from judicial scrutiny and have
been included in the Ninth Schedule.62 The Constitution in India itself recog-
nizes specific exemptions for certain communities.63
Part III of the Constitution of India contains fundamental rights of a person,
citizen and individual. Under Articles 25 and 26, there are various counterargu-
ments which lead to connect with personal law, at least of Muslims. However the
Supreme Court of India,64 in a case of Hindu Endowment, has sought to dispel
this aspect by saying that the provisions in Part III of the Constitution does not
touch upon the personal laws of the individual. In this judgement the court stated
that in applying the personal laws of the parties, judges could not introduce their
own concepts of modern times but should have enforced the law as derived from
recognised and authoritative sources of personal law (which was Hindu law in
that case); i.e., should have referred to Smritis and commentaries, as interpreted
in the judgments of various High Courts, except where such law is altered by any
usage or custom or is modified or abrogated by statute.
Article 25 is subject to public order, morality and health and further subject to
regulating financial political and other secular activities which may be associated
with religious practices. Article 25(2)(b) is important, as it gives power to the
State to make law with respect to social welfare and reform for opening Hindu
religious institutions of public character to all classes and sections of Hindus. It
is important to note that the entire mechanism as set out in Article 25 grants
exception to followers of the Sikh religion for wearing and carrying ‘Kripan’ in
the process of professing Sikh religion. Rights under Article 26 are again subject
to public order, morality and health. However, this right is to be exercised by a
 Of Statutes and Scriptures 25

“religious denomination” or “any section thereof ” to establish and maintain institu-

tions for religious and charitable purposes, manage its own affairs in the matter
of religion, to own and acquire movable and immovable property and administer
such property in accordance with law.
Every religious group is based upon an established faith relatable to written
text or continuously practiced oral religious teachings and diktats practiced for
a long time. In that process every religious belief of a denomination or section
thereof develop some kind of moral principles which we may call ‘religious or
denominational morality’. This concept of denominational morality will call for
understanding the logic and reasons of a religious order or command within the
denomination rather than taking out one issue from religion and comparing the
same with the general principles as have emerged in modern times and the notion
of equality which has emerged out of the concept of constitutional morality.
For instance, the religious texts of inheritance and succession amongst Muslims
granting a defined right to women for succeeding in the property of her relatives
vary. In succeeding to a property of her father, the daughter has half a share of
her brother. On face value, it appears to be discriminatory between the brother
and the sister. However, one agrees or not, there is very sound reason available
in the religious text. To examine and discuss this issue, the Court and legislature
should not discuss only the logic of modern times, which we call ‘constitutional
morality’, and ignore the concerned religious texts which are equally important in
the process of decision making.
The Law Commission of India highlights through its consultations with
women’s groups that religious identity is important to women and personal laws
along with language, culture etc. often constitute a part of this identity and thus
constitute an important expression of ‘freedom of religion’. The argument of
personal laws being forced upon women holds no water. The Commission, after
a thorough analysis, makes an important point of urging the legislature to first
consider guaranteeing equality ‘within communities’ than equality ‘between
communities’.65 However at the end of the Report,66 the Commission proceeded
to suggest a series of amendments to personal laws, particularly with respect to
succession and inheritance. This part of the report appears to be at variance with
the assertion of continuance of community-based personal laws as it would seri-
ously entail the encroachment of religious personal laws. This suggestion of the
Commission is again based on the generally understood notion of equality ema-
nating from the principle of constitutional morality.
A 2016 Pew Research67 report suggests that globally, women are more reli-
gious than men. Interestingly, except Hinduism and folk religions, where women
are less religiously affiliated than men of their communities, all major religions
show women as more religiously affiliated. Should these women not be allowed
to practice their faith just because our ideas of morality and life are different from
these women and communities? The mainstream notions of morality, equality
and life cannot dictate practices of people.
26 M. R. Shamshad

V. Issue of Fundamental Rights and View of the Court

On numerous occasions the issue of personal law and belief has been examined
by the Supreme Court and other courts in India. In Minerva Mills,68 the Supreme
Court rightly held, “To destroy the guarantees given by Part III in order pur-
portedly to achieve the goals of Part IV is plainly to subvert the Constitution by
destroying its basic structure.” The apex courts observations have also come in
the form of unnecessary obiter dicta. In Shah Bano,69 the judgment starts by quot-
ing an English orientalist Edward William Lane that “the fatal point in Islam is
the degradation of women”. The five-judge bench has been criticized for patron-
izing comments on Islamic practices.70 In Jose Paulo Coutinho,71 the court, while
applying Goa’s civil code even in respect of properties outside Goa rather than
the general law, i.e. The Indian Succession Act (1925), called Goa’s civil code “a
shining example of an Indian State which has a Uniform Civil Code applicable to
all”, completely overlooking the intricacies, and the discriminatory nature of the
code. The code starts in the name of God and the King of Portugal. It allows lim-
ited polygamy for Hindus on an appalling condition, i.e. absolute absence of male
issue elapsing ten years from the last pregnancy or the previous wife having com-
pleted 30 years of age.72 The code also provides special treatment to Catholics.73
Few examples need to be discussed to understand how the issue of personal
law is intertwined with general fundamental rights of individuals and how these
personal law issues are affected while formulating public policy issues. One such
issue, very basic to Muslim religious practice, was discussed and decided by the
Supreme Court in 1994. In a majority judgement of three judges in a five-judge
bench74 judgement, the Supreme Court of India gave a concept of ‘comparative
significance’ in relation to the dispute on a piece of land on which Muslims and
Hindus both claimed their rights for a mosque and Ram temple respectively. The
Court commented on the status and institution of mosque (Masjid) without get-
ting into the religious texts and went on to observe that ‘a mosque is not an essential
part of the practice of the religion of Islam and namaz (prayer) by Muslims can be offered
anywhere, even in open.’ This observation, if examined in that particular context,
is incorrect and hence the judgement or observation of the court, to that extent,
is contrary to the religious text and hence violative of fundamental rights under
Articles 14, 15 and 25 of the Constitution of India. Subsequently, the claim seek-
ing review of this judgement was rejected by a three-judge bench.75
In 1995, a three judge bench,76 in an election petition, wrote that the word
‘Hinduism’ or ‘Hindutva’ cannot be confined only to Hindu religious practices
unrelated to the culture and ethos of the people of India and it cannot be confined
merely to persons practicing the Hindu religion as faith. The Supreme Court
gave an institutionalised definition of Hindutva as ‘way of life’, without delving
into its impact on other religious beliefs. It was, in a way, comparative signifi-
cance of religious philosophy which itself is a flawed concept. The court gave a
sense of supremacy to one religion by leaving out similar philosophy of other
religions. Whatever may have been the logic and reason of these observations of
 Of Statutes and Scriptures 27

the Supreme Court, it played a great role in shaping the Hindutva politics of the
country as this observation of the Court was again used by politicians and other
networks in the country to demonise other religious beliefs, mainly Islam.
Along the same lines, I find it relevant to point out another case77 decided by
the Supreme Court in relation to a Muslim man’s right to sport and maintain a
beard to assert his right to profess and practice his religion. The rules of the Air
Force78 regulated the behavior of defense personnel by mandating to keep his face
clean shaven and keep whiskers and moustaches, if worn, in a moderate length.
At the same time the provision also set out that personnel whose religion prohib-
its the cutting of hair or shaving of the face shall be permitted to grow hair or
retain a beard with a condition to keep it clean and properly dressed. If one reads
this regulation in its entirety, it prima facie appears to be in consonance with
the guarantee as set out in Article 25 and 26 of the Constitution of India, 1950.
It reflects the accommodation of diverse religious practices in public policy and
governmental regulations. Later a clarification was issued that this regulation also
covered the cases of personnel professing Islam but subsequent revised policies of
the government of India stated that only those Muslims who had a beard along
with moustache at the time of entry into the service prior to a particular period
shall be permitted to keep their beard and moustache (together). Those who
grow a beard after joining the service should shave off the beard. There was also
a condition that those who had joined with beards prior to 1 January 2002 shall
be allowed to maintain a beard only when they also have a moustache. Again, in
2003 a clarification was issued by Office Order for Non-Sikh Personnel permit-
ting to continue in the service in case some permission has been granted to the
concerned person to sport a beard. However a condition was that he should have
“beard and moustache, as part of their religious practice”.
In effect, under certain circumstances a non-Sikh was permitted to sport a
beard only if he can also add a moustache with beard, as well as the person hav-
ing already had it at the time of entry into the service. While adjudicating this
issue, the Supreme Court put a question as to whether Islam ‘prohibits the cutting of
hair or shaving of facial hair’ and the Court finally concluded that no material was
produced before the Court to indicate that the person professed a religious belief
that would bring him within the ambit of the Regulation 425(b). The Supreme
Court relied upon the terminology used in the regulation to confirm the finding
that the appellant had no legal right to maintain a beard. It also gave finding that
the policies in regard to personal appearances are not intended to discriminate
against religious beliefs nor do they have the effect of doing so but its object and
purpose was to ensure uniformity, cohesiveness and discipline. The consequence
of this judgment is two-fold: One that to the extent of religious belief of the Sikh
community, the diversity and incoherence has been rightly accepted but the same
diversity has not been applied to the followers of Islam, and the second that the
principle of essential religious practice has been applied to reach the conclusion
that even without sporting a beard one can be a good Muslim. There appear
to be serious errors in both situations. In the first situation, the very intention
28 M. R. Shamshad

of ‘uniformity’ and ‘cohesiveness’ is disturbed if, for whatever reason, certain

exceptions are carved out for followers of certain religious beliefs. In the second
situation, the Court ignores the fact that matters of religious faith can never be
dependent upon written ‘essential tenets’ of religion. It is a matter of faith and the
Courts must have a hands-off approach in determining the essential tenets and
features of religion. It is the faith which recognizes the written texts and not the
texts which recognize the faith. While dealing with the issue of faith of different
religions, the approach of the Courts has to be uniform with all religions and not
treat followers of different beliefs in a different manner by finding a distinction
in getting into the strength and infrastructure of the believers faith. I feel the
question as to whether Islam prohibits cutting one’s beard was a wrong approach.
Hence, the judgment is bound to be a questionable one.
On earlier occasions, the Supreme Court79 has stated that “No outside author-
ity has any right to say that these are not essential parts of religion and it is not
open to the secular authority of the State to restrict or prohibit them in any man-
ner they like under the guise of administering the trust estate.” Much prior to
this view of the Supreme Court a judgment of the Bombay High Court stated in
190980 that “If this is the belief of the community … a secular judge is bound to
accept that belief – it is not for him to sit in judgment on that belief – he has no
right to interfere with the conscience of a donor who makes a gift in favour of
what he believes to be in advancement of his religion and for the welfare of his
community or mankind.”
In a case in1963,81 the Supreme Court stated that in the cases of conflicting
evidence produced in relation to religious practices the Court will have to enquire
whether the practice in question is religious in character and if it is, whether it can
be regarded as an integral or essential part of the religion, and the finding of the
Court on such an issue will always depend upon the evidence adduced before it
and to the “conscience of the community” and “the tenets of its religion”. In 2004, while
deciding Anandmargi,82 the Court proceeded to elaborate as to what is an “essential
part or practice of religion”. To this question, the Court replied that

Essential practice means those practices that are fundamental to follow a

religious belief. It is upon the cornerstone of essential parts or practices
that the superstructure of a religion is built, without which a religion will
be no religion. Test to determine whether a part or practice is essential to
a religion is to find out whether the nature of the religion will be changed
without that part or practice. If the taking away of that part or practice
could result in a fundamental change in the character of that religion or
in its belief, then such part could be treated as an essential or integral part.
There cannot be additions or subtractions to such part because it is the
very essence of that religion and alterations will change its fundamental
character. It is such permanent essential parts which are protected by the
Constitution. Nobody can say that an essential part or practice of one’s
religion has changed from a particular date or by an event. Such alterable
 Of Statutes and Scriptures 29

parts or practices are definitely not the “core” of religion whereupon the
belief is based and religion is founded upon. They could only be treated as
mere embellishments to the non-essential (sic essential) part or practices.

While giving a separate dissenting opinion, one judge83 stated that if the con-
science of a particular community has treated a particular practice as an integral
or essential part of religion, the same is protected by Articles 25 and 26 of the
Constitution of India, 1950. It wrote:

Though the freedom of conscience and religious belief are absolute, the
right to act in exercise of a man’s freedom of conscience and freedom of
religion cannot override public interest and morals of the society and in
that view it is competent for the State to suppress such religious activities
which are prejudicial to public interest. That apart, any activity in further-
ance of religious belief must be subordinate to the criminal laws of the
country. It must be remembered that crime will not become less odious
because it is sanctioned by what a particular sect may designate as religious.
Thus polygamy or bigamy may be prohibited or made a ground of disquali-
fication for the exercise of political rights, notwithstanding the fact that it
is in accordance with the creed of a religious body.

In a claim of a religious group called Jehovah Witnesses,84 asserting that while

standing in the morning assembly of their school they shall not sing the National
Anthem, the Supreme Court upheld the said claim of religious belief and stated
that “whether a particular religious belief or practice appeals to our reason or
sentiment but whether the belief is genuinely and conscientiously held as part of
the profession or practice of religion. Our personal views and reactions are irrel-
evant. If the belief is genuinely and conscientiously held it attracts the protection
of Article 25 but subject, of course, to the inhibitions contained therein”.
If we apply this principle of essential practice in determining someone’s faith,
like the case of a Sikh person sporting a beard, would it be prudent to negate his
Sikh faith and belief of a person who has a clean shave or has cut his hair at some
stage in his life. If the answer is no, there cannot be a question to ask a Muslim
whether Islam “prohibits the cutting of hair or shaving of facial hair”.
More recently, the minority opinion of two judges85 in the triple talaq judg-
ment86 records all the contentions of the claiming parties to reach its finding that
‘Talaq-e-Biddat’ has to be considered integral to a religious denomination, largely
Sunnis belonging to the Hanafi school. In the majority judgment of three judges
(again divided into 2:1 in their reasoning), two judges state that this type of talaq
was ‘manifestly arbitrary’ and the last judge stated that ‘Triple Talaq is against the
basic tenets of the Holy Quran and consequently, it violated Shariat’ and also reiterated
the law declared in an earlier judgment in Shamim Ara.87 For this judgment the
other two judges [who wrote the minority opinion] stated that the judgment in
Shamim Ara did not debate the issue of Talaq-e-Biddat, hence the discussion of
30 M. R. Shamshad

that case cannot be treated as the judgment on Talaq-e-Biddat. The net effect of
the judgment was that the three talaqs pronounced in one sitting was set aside/
declared to be illegal. Relying upon this judgment, though wrongly, the legisla-
ture acted hurriedly and passed a legislation criminalising the very same proce-
dure of triple talaq covered under the Supreme Court Judgement. This new law
goes much beyond the contemplated encroachment in personal law, touching on
the basic fundamental issue of criminalising an action, which at best could be
called a civil wrong.
That is why it is necessary that, while giving interpretation to rights guar-
anteed under Articles 25 and 26, religious faith and religious practice has to be
understood with the perspective of the believer unless the said faith and practice
is alien and unheard of to the said religion.
Recently, a Hindu seer, Swami Jeetendranand Saraswatee, filed a plea88 in the
Supreme Court of India seeking directions to declare that Hindus, Jains, Buddhists,
and Sikhs have similar rights to own, acquire, and administer movable-immovable
properties of their religious places like Muslims, Christians, and Parsis. Someway
or the other, it is a voice of a religious person of the majority community against
the principle of essential religious practices, as carved out by the Supreme Court.
There are numerous occasions from 1985 onwards89 when the Supreme Court
has sought to remind the system as to how a Uniform Civil Code was the need
of the hour. On many occasions such observations were neither needed nor desir-
able. For instance in the case of Sarla Mudgal,90 where four Hindu men converted
to Islam to take second wives, instead of making observations on the conduct of
the men abandoning their own religion just to have other women in their lives, the
court demeaned Indian Muslims (and their dying practices in this case). The court
went to the extent of making observations about two-nation theory, attributable
only to the Muslims, which is a wrong historical statement. No doubt that the then
Muslims were also party to such assertions but historically it cannot be attributed
either to only the Muslims or to Muslims who preferred staying in the present-
day India. Many Muslims of today’s India, like myself, would be aggrieved by such
observations of the highest court of the land. Undoubtedly, in many other cases, the
facts at issue required the Court to make such observations.
There are instances of the past, from 1981 onwards, where the indulgence of the
Supreme Court was sought for enactment of Uniform Civil Code. In the AWAG
case,91 in public interest, various reliefs were sought challenging the Muslim spe-
cific legislations92; a three-udge bench of the Supreme Court dismissed the peti-
tion. On another occasion, a person called Maharishi Avadesh filed another PIL93
specifically seeking directions from the Supreme Court against the government
of India for considering the enactment of Common Civil Code for all the citizens
of India. He also sought to challenge the Muslim specific legislations, similar to
the AWAG case.94 Again the Supreme Court dismissed the petition, stating that
the Court cannot legislate into these matters.
On 30 November 2015, the Supreme Court of India on its own gave a direc-
tion95 for registration of a separate PIL – effectively a direction to reconsider
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 She was surprised to find that this seemed to place no restraint
upon Lawrence. He whispered as much as ever and lost every recess
like a little soldier.
When this had been going on for two weeks, one day Sarah, who
sat just behind Freddie, hung around Miss Blair’s desk plainly trying
to get up courage to say something. Finally, Miss Blair said, “What is
it, Sarah?” Sarah replied, “Freddie makes Lawrence whisper.” Miss
Blair said in astonishment, “How can that be?”
“Why,” said Sarah, “Freddie can’t tell just what you want, or he
can’t spell the words and he punches Lawrence in the back and
Lawrence tells him what to do or how to spell the words.”
Here, then, was the key to the situation, which Freddie had been
too selfish and Lawrence too manly to disclose.
Freddie was given a seat near Miss Blair’s desk where she could
help him, and Lawrence ceased to whisper. The sadness which had
shown in his face at every recess was replaced by happy relaxation.

CONSTRUCTIVE TREATMENT

Find out by tactful questioning, changing seats during one period,

etc., just why a certain child persists in whispering. Ascertain
whether the one to whom he whispers gets or gives information and
arrange for the dependent one to get direct help from you, or from
some fellow pupil, after instructions have been given.
Never keep a child in at recess time for any other reason than that
he has already had recreation.
Test Freddie’s hearing. It may be that some defect in that respect
has made it impossible for him to catch some of the explanations
given by the teacher.
If hearing is found to be normal, test his vision. Possibly he can not
see all the lessons that are placed on the board. Perhaps, also, the
light may shine on the board in such a way that he can not see the
writing.

COMMENTS
 The Bavaria system has revealed the great need of individual
instruction. This question of getting help on the difficult parts of a
lesson is not, in itself, wrong. The evil comes from the confusion of
haphazard whispering. The whispered help which one pupil gives
another, without the teacher’s consent, is attended by more than one
evil. The attention of two pupils is shifted from the central interest.
The teacher is deceived as to the real knowledge which the helped
one has of the subject and he can not therefore correctly estimate his
work.
Yet the physical well-being of a child demands that he have his
recess period of relaxation. The teacher who does her duty in the
matter of supervised play will abandon “keeping children in” as a
punishment for misdemeanors.

ILLUSTRATION (FOURTH GRADE)

Miss Green tried the following method in Rewarding with

her room. She wrote the pupils’ names on Stars
the blackboard in a conspicuous place. She told the children that
whenever she saw a child whisper during the week just beginning she
would erase his name.
At the beginning of the second week a star was placed after each
name remaining on the board. Those who had whispered the week
before were given another chance by again writing their names on
the blackboard. Each succeeding week a new star was given to those
who had not yet whispered and each week those who failed were
given a new trial. When any one had received six stars they were
given a book.
Little was said about those who failed, but every week a story was
told, when the stars were given, showing the value of self-control, or
the disaster which followed lack of self-control. This plan practically
eliminated whispering.

CASE 105 (FIFTH AND SIXTH GRADES)

 Miss Peterson taught the fifth and sixth Outdoing the
grades in a central Illinois town. She had a Teacher
loud, scolding voice. The children whispered almost incessantly,
apparently to drown her harsh tones. They nearly always succeeded
in part, but occasionally when the noise of whispering seemed worse,
Miss Peterson’s voice actually arose above the din and in threatening
tones she said to them, “Stop whispering!”
Her evident reason for this was to get only a temporary, partial
silence, for this was all she accomplished. Her outbreak against noise
occurred two or three times daily. The children even blew whistles
very softly at times and actually disliked Miss Peterson the more
because she seemed to believe them when they told her the sound
was made by the wind whistling through the cracks around the ill-
fitted windows.
One day when the noise seemed worse than usual, she announced
that whoever whispered next would have to “stand on the floor.”
There was a moment’s silence and then one of the girls whispered a
comment upon her remark. Instantly Miss Peterson called her to
stand up in the front of the room. The girl to whom she whispered
immediately talked for the obvious purpose of joining her friend in
disgrace. When Miss Peterson asked the second girl to join the first, a
smile was exchanged between them. This was seen by others who
decided to join in the fun. One after another, almost as fast as
named, joyfully joined the group of those standing, and what is more,
whispered to each other on the floor. When almost half of the pupils
had been called out, poor Miss Peterson gave them a very angry
lecture, and threatened them with the loss of recess. A partial silence
ensued after the lecture, but that session of the school was worse
than lost.

CONSTRUCTIVE TREATMENT

Take time to see yourself at work in the school-room. Test out your
own influence as a noise maker by adopting some very quiet methods
of doing your own work; see if the children do not imitate you also in
maintaining better order.
 Abandon the haphazard method of curbing whispering. Think the
whole situation over; measure each pupil in respect to the
whispering nuisance; classify the room as a whole in respect to the
matter. Probably you will adopt two or three methods
simultaneously for different types of pupils.
Apply these methods unobtrusively. By working with individuals
have the rumor pass around that you are becoming stern about
whispering. This can be done without provoking enmity.
Use a number of stories on self-control, neighborliness, etc., but do
not connect them with your campaign against whispering. If some
story makes a great hit, allude to its leading character when dealing
with certain individual offenders.

COMMENTS

A harsh voice or a loud tone tends very strongly to provoke school-

room noise. It sets an example; it shows the teacher’s disregard of
the customary rule relative to quiet in the room; it provokes a similar
noisiness for the sake of self-defense.
The well modulated voice not only pleases sensitive ears and
gentle spirits, but it suggests strongly to the pupils what their own
voices may be like. Such a voice says not only, “Do this,” but also “Do
it quietly.”
The voices of most persons are untrained. Teachers usually give
little professional attention to their voices, yet no aspect of their
personality needs greater attention.
The voice is usually a good indicator of character. Miss Peterson
doubtless is no exception. We doubt if any person enjoys her
friendship as much as if she used a sweeter, gentler, lower-pitched
voice.
The adoption of some method of voice culture will react on the
character.
Either singing or dramatics will soften the voice and warm up the
heart. If nothing else is available, the reading of well selected poetry
with an attempt at faithful expression has a lasting effect if
maintained for a considerable period.
 Public announcement of a mode of punishment for a certain
offense often leads a group to try together the experiment of
breaking the rule laid down. A public talk about a general
misdemeanor must be well thought out and given at an opportune
time, with no hint of anger on the part of the teacher. The pupils will
not reason that an angry person’s judgment is warped, but they will
nevertheless, resent a lecture given in any other than a seriously
helpful attitude of mind.
The novice and the failing teacher use direct methods hoping to
secure immediate and adequate results. One teacher says, “I want to
use a method that will bring whispering to a stop at once.”
Human nature rarely consents to such radical methods. Indirect
methods and a little lapse of time are usually necessary to give the
human nervous organism opportunity for readjustment. Such a
reorganization of habits is not closely under the control of the will;
rather the lower nerve centers must actually effect the desired
reforms. Intelligent choice merely supplies the inner stimulus which
directs the course of the rebuilding of habit that is so earnestly
longed for.
“The perpetual ill-behavior of many children is itself the
consequence of that chronic irritation in which they are kept by bad
management.... That harsh treatment which children of the same
family inflict on each other is often, in great measure, reflex of the
harsh treatment they receive from adults.” (Spencer, Education.)

ILLUSTRATION (FIFTH AND SIXTH GRADES)

Mrs. Steward taught a room of pupils in the fifth and sixth grades.
Near the end of the second week she felt that she had the confidence
of her pupils and could count upon their coöperation.
On Friday morning just before recess she Taking a Vote
said, “How many of you would like to try to
have no whispering at all between now and recess time? It is only ten
minutes.” A majority of the children voted that the trial be made. The
silence was really restful. Just before dismissing for recess she asked
how many liked the silence. Again a majority of them held up their
hands. About twenty minutes before noon she again allowed them to
vote as to whether or not all should refrain from whispering until
noon. This time more even than before voted for silence. Half an
hour before school closed they again decided against whispering for
the rest of the day.
On Monday one or two sessions were voted upon with success.
Before the end of the third week the children from choice had voted
whispering out of the school for the rest of the term because they
liked complete silence better.
They followed the teacher who used the method of leading
suggestion.
Thereafter when someone forgot and whispered, they were
reminded, kindly, that they were not following the wish of their
fellow-pupils. On this subject of majority rule, stories were told of its
value in human history.
Many teachers make use of the honor system in determining
deportment grades, especially asking for self-reporting on
whispering and similar offenses.

CASE 106 (RURAL SCHOOL)

Mr. Boling taught in a rural school in Central Illinois. He used the

following system as a check upon whispering.
Every evening just before school closed When All
he called the roll. Those who had not Whisper
whispered during the day were to answer “ten.” If they had
whispered once “nine.” For every time they whispered during the day
they were to deduct one from their daily grade in deportment.
With some children this acted as an effective check. One little girl,
Jennie, had truthfully answered “ten” every day since the
introduction of the system. She sat with her sister in a double seat.
One day a friend asked permission to “speak” and came to the sister’s
desk to borrow a book. Jennie not being able to find the book said to
her sister, “Look on your side!” Then she slapped her hand on her
mouth and her little heart sank. She had broken her record. She had
whispered without permission! Many notes passed between the
sisters as to whether or not Jennie had really whispered without
permission. It was grimly decided that she had. They reasoned that
whereas the friend’s permission to “speak” allowed each of them to
speak to her, still that gave the sisters no right to speak to each other.
Jennie suffered all the rest of that day. How like a real culprit she felt
when she answered “nine” at roll call. The memory of the disgrace
lingers with her through the years.
But Mr. Boling had other pupils of far different home training and
natural disposition from Jennie.
Katie Mender and Annie Kuhn were examples of this class. They
whispered almost incessantly. Jennie knew it and she believed Mr.
Boling himself knew it and yet they answered “eight,” “nine” or “ten”
every evening.
A few there were who not only whispered incessantly but who
shamelessly answered “zero” every evening.
Clifton with a good-natured grin answered “zero” daily and looked
around the room with a complacency that seemed to say, “What a
smart boy am I!”
And even Jennie often wondered if his care-free life was not
enviable. Nothing was ever said or done by Mr. Boling to show that
Jennie was more to be commended than Clifton.

CONSTRUCTIVE TREATMENT

Commend Jennie for her conscientious reports. Talk privately to

Katie and Annie about their false statements. Make them see the
value of truth in business and social life.
This may be done publicly at roll call by some such statement as
this: “Every day that Jennie makes a true report of perfect control of
her desire to whisper, she has grown stronger in character as surely
as the oak is stronger after battling with a wind storm.”
A reference to the growth of flowers would please Jennie but
would not impress the boys. Give them some such instruction as this:
“Notice carefully every thing you say during one play period. Stop to
think what would have happened if you had been untruthful every
time you spoke. When you have thought of a good reason why people
should speak the truth come and tell me what your reason is.”
 Have a further check upon Clifton, one that he will respect. His is a
case of ignoring wholly the rights of others. You may say, “Clifton,
what would you do if a new boy should come to school and wish to
play ball. Then when playing he wouldn’t heed a single rule of the
game. Suppose he insisted upon striking as long as he pleased,
tripped those on his side when they ran, and never helped to get his
opponents out. If the boys were sure he knew just what to do, how
would they proceed?” Clifton will tell you that they wouldn’t let him
play. “Would they like him?” “Why?”
Take another case. Say, “Suppose a twelve-year-old boy came to
school who talked out loud continually and so spoiled the game of
studying and reciting lessons. What ought I to do?” He will doubtless
suggest a course to stop the boy’s talking. “Now supposing a boy
whispers all the time and so hinders others as well as himself from
scoring a point in their favor in arithmetic or spelling, what should
be done?” “But in all these cases it would be better to hold on to the
boy, don’t you think?”
Lead him thus to see the case in its true light. If Clifton does not
weigh matters when you talk them over with him, separate him from
the mass of the pupils. This can be done without inflicting an
intentional penalty. See this method as developed in the illustration
just below.

COMMENTS

If Jennie is not commended, she will have no reason to believe that

her honesty and restraint are really valued.
It is a shameful neglect on the part of a teacher to allow children to
lie habitually and do nothing to make them truthful. Mr. Boling, to
lessen a minor wrong, tolerated a gross misdeed.
Clifton was daily learning anarchy, and demonstrating to the
school that lawlessness is regarded as “smart” by some. This idea
should be speedily corrected.
In place of the honor system which invariably has the three classes
of dispositions above described to deal with, a better plan is
isolation.
ILLUSTRATION (RURAL SCHOOL)

Miss Taylor of Allenton used this method Seats Near the

to reduce the amount of whispering. She Front
arranged a seat on each side of the room near the front for the use of
those who needed special help in the matter of self-control necessary
to prevent whispering. Since every desk was occupied she placed a
sewing table against the wall on either side in front for desks, and
used camp chairs for seats. At these tables she allowed children to sit
who needed an environmental help in securing self-control. She
made it very clear that this was not punishment; it was simply help
to enable the child to do what he himself wanted to accomplish. Her
whole attitude was that of solicitude for the best welfare of the two
who had the additional help of isolation to teach them self-control.
Those who occupied these seats were aided by giving them helpful
surroundings in place of those fraught with temptation.
When pupils have reached the high school age, if former training
has failed to give them enough self-control to make them refrain
from whispering at least they will be able to see the reasonableness of
silence in both the study and recitation rooms.
Here special honors and privileges may well be granted to those
who are silent if only the teacher makes it clear that a reward for the
exercise of self-control is just as legitimate as a diploma for courses
in study completed. Indeed a badge of honor won through self-
imposed restriction in this matter is an index of real merit, and the
tactful teacher can easily show the pupil that this is the case.
Much of the trouble about whispering here, as in the grades, arises
from pure thoughtlessness, selfishness or self-esteem.
(2) Talking aloud; talking too much; talking without permission.

CASE 107 (HIGH SCHOOL)

In the Elkton High School many factors Displaying Wit

contributed to make Charles Drover a
favorite. He was an athletic star, he was from a popular family, but
above all he was a wit of considerable merit. His witticisms always
secured a hearing. His temptation to whisper was very great.
Remarks of general import, no matter how serious, usually ended by
giving those around Charles much to do to refrain from laughing
aloud.
Mr. Hodge, the high school Principal, was annoyed past
endurance. One morning after a brief talk on a coming lecture,
Laura, a neighbor to Charles, smiled broadly. Mr. Hodge said,
“Laura, pass into my office.” She went at once. After the classes had
passed, Mr. Hodge went to his office and frowningly explained to
Laura how much her constant levity annoyed him and demanded
that she bring in extra school work as punishment, and further said
that if she still persisted in treating all remarks made from the
platform with so much unconcern he would see to it that no position
of trust be given her in high school affairs.
The week passed and the day of the lecture arrived. Laura was to
be one of the ushers that night. Mr. Hodge was giving some final
directions concerning the arrangements for the evening when Laura
giggled. Instantly Mr. Hodge announced that some one else must be
appointed in Laura’s place as usher and that she bring in the
translation of twenty extra lines of Caesar the following day. This was
the beginning of a strong opposition to Mr. Hodge which culminated
in his being asked to resign at the end of the year.

CONSTRUCTIVE TREATMENT

Deal with the cause of the disturbance. Suppression of either the

laughter of the girl or the humorous trait in the boy is entirely out of
the question. Pass over the girl’s misdemeanor until the boy has been
disposed of.
Cultivate the humor in Charles. The primary task will be to teach
him how to make good use of his talent. Wide reading under your
direction will acquaint him with many types of humor and enable
him to choose with discrimination. Show him the appropriate uses of
humor, the occasions when humor can best be indulged in, the
injuries wrought by unregulated fun. Have him take charge of the
humorous column in the high school weekly. If he has a gift in
drawing, develop humor and art together.
 You may learn a great deal from Charles; if you do, let him know
the fact and so link him to you the closer. Hold many private chats
with him informally about his work and enter into it with genuine
interest.

COMMENTS

Nine times out of ten the one who laughs in school is not the real
culprit. A person scarcely ever regards himself as “funny” or
ridiculous. A pupil laughs at another’s error, blunder or joke.
If the sense of humor is enkindled, laughter is the only natural
outcome; the control of one’s impulse to laugh must of course be
taught, yet for school-room purposes it is far more important to be
master of the conditions that provoke laughter.
The treatment recommended for Charles will help to make a man
of him, and other pupils will respect the teacher all the more if he
prizes a talent which wins the applause of all the school.
A teacher who is unable to laugh or to share in that which is
positively humorous is an unlovely person.

“’Twas the saying of an ancient sage that humor was the only test
of gravity, and gravity of humor. For a subject that would not bear
raillery was suspicious; and a jest which would not bear a serious
examination was certainly false wit.”

—Shaftsbury.

The best teachers occasionally have a whole room of pupils roaring

in peal after peal of laughter. They lose nothing by the experience;
rather they gain immensely, for laughing together makes hearts
warm up towards each other.
The weak teacher dares not risk himself to laugh when the class or
room is seized by a fit of fun. For the pupils it is highly interesting to
watch the struggles of the teacher to avoid doing that which they
know he likely wants to do. In refusing to participate in their mood
he repels them. He puts himself out of their group; he takes a
position as a critic and as an alien.
If one leads pupils to make proper use of their talents, he fulfills
his truest function as an educator. Developing, restraining from
excesses, guiding in the profitable use of the natural endowments of
the child—these are the necessary duties of every high-minded
instructor.
We must learn that the impartation of school facts is but one
means of equipping a child for taking his place as a prepared
member of society.
Whatever natural gifts a child has must be dealt with in school life.
Those that are dormant must be drawn out; those that are already
functioning must be directed.
When a boy or girl fully realizes that the teacher’s primary thought
is helpfulness, many difficulties will disappear.

ILLUSTRATION (HIGH SCHOOL)

Jennie Leavitt was a high-strung, irrepressible, well-meaning girl

far on in her teens. It was her custom to announce firm adherence to
good moral standards when such matters were up for discussion. Her
motives, moreover, were seldom open to question.
She entered class at the opening of the Isolating
term with an established whispering habit. Whisperers
Her classmates, one by one, were moved from her vicinity so that,
finally, only one was left with whom she could chat. Her breaches of
good order were so innocent that any suggestion of coercion seemed
inappropriate; the removal of her companions reduced the problem
to small dimensions.
The teacher had but one short step to take: to give her remaining
companion another seat in some unobtrusive way and to make
enough assignments of written work to afford a means of expression
for the active mind of the school girl. This could easily be done
because of the excellent mutual understanding between the
whisperer and her teacher.
 A school should offer conditions and surroundings that are as
conducive as possible to study, to concentration of the pupil’s effort.
Too many teachers put plenty of emphasis on the physical factors in
their pupils’ surroundings—ventilation, posture, light, etc.—but allow
their rooms to degenerate into a perfect hubbub of noisy confusion in
which study is impossible.

CASE 108 (FOURTH GRADE)

Joseph Levy and Sadie Higgins, two pupils in the fourth grade of
the Pittsburgh Avenue School, Minneapolis, were talking without
permission, when Miss Bowen, who was conducting an arithmetic
lesson on the other side of the room, saw them.
“Joseph and Sadie! Did anyone give you Talking Without
permission to talk?” she inquired. “I want Permission
you all to know (she rose from her seat and addressed the whole
room) that hereafter there is to be no talking without permission. If
it is absolutely necessary that you speak to someone, hold up your
hand.”
The next day Sadie “forgot.” Miss Bowen was busy helping another
pupil. She waited until she had finished. In the meantime, several
minutes had passed. Sadie had found out what she wanted and was
working on her arithmetic lesson, when Miss Bowen went over to
Sadie’s desk, pulled her out of the seat by her arm, and said so the
whole room could hear, “Sadie Higgins, I’m not going to tell you
more than once that you have to ask permission when you want to
speak. Do you hear me?... Well, sit down and see that the next time
you wish to speak, you ask my consent before doing so.”

CONSTRUCTIVE TREATMENT

Discuss matters of conduct with offenders, not with non-offenders.

Because Sadie had spoken without permission, it is not therefore
necessary to tell Joseph that he may not speak without permission.
Address yourself to the one who needs the prohibition. Treat each
case by itself. Wait until you have finished your immediate work,
whether it is holding a recitation or writing on the blackboard. When
the period is ended, quietly speak to Sadie in private, telling her she
must ask permission when she wants to speak as you may be able to
answer her question without bothering another pupil.
“Just hold up your hand and if I think it is necessary, I shall nod
my head, meaning ‘Yes’; this will not disturb the rest of the room.”

COMMENTS

Miss Bowen disturbed the whole room much more than any
talking between Sadie and Joseph did when she called the attention
of the other pupils to the fact that Joseph and Sadie were talking
without permission.
Every teacher should remember that children need constantly to
be reminded of what they should do until the act becomes a habit.
Miss Bowen did Sadie an injustice, since the child had not been
accustomed to ask permission when she wished to speak.
It was very well for Miss Bowen to wait until she had finished the
work at hand before speaking to Sadie, but she should have
remembered that the child had had time to forget that she had
spoken. To pull her out of her seat and publicly scold her was entirely
out of place.

ILLUSTRATION (FIFTH GRADE)

When Miss Lucas took charge of the fifth Breaking An Old

grade room in the Henry Clay Grammar Habit
School, Lexington, Kentucky, she was informed on the first day that
the children were accustomed to speak to one another without
permission. As this was often annoying, especially when three or four
spoke at once, she decided that this must not be.
When, the following morning, she saw Lola Mossman, a girl of
exquisite manner, walk over to the desk of Bernice Bryant, evidently
to ask her about a lesson, Miss Lucas waited until the close of the
period, when she spoke to Lola in private.
 “Is it the custom in this school, Lola, for the pupils to speak to one
another during a study period without permission?”
“Yes, Miss Lucas.”
“I am sure the whole room will be less disturbed if we form the
habit of asking permission before we speak.
“If you need to find out something about a lesson, you should have
permission to speak. I will willingly grant it; but do not ask to speak
when you see someone else talking. It is disturbing to the other
pupils to have two persons speaking at a time.”
Through Lola Mossman and one or two other pupils as a medium,
the children soon discovered that Miss Lucas expected them to ask
permission before speaking.

CASE 109 (FIFTH GRADE)

Mamie Eggleston was a devoted pupil in Monopolizing

the fifth grade of a school in Paterson, New Time
Jersey. She never missed an opportunity to talk with Miss Olmstead,
her teacher, before or after school.
“May I come in?” Mamie would say if she saw Miss Olmstead
seated at her desk before school began.
“Yes, indeed.”
Then for fifteen minutes Mamie would talk just for the sake of
saying something to someone who would listen.
“I like Miss Forsyth’s new waist, don’t you?”
“Are those little black bands on your wrists tied or fastened on?
That waist is awfully becoming to you. I have a pink waist. My
mother made it for me. But she won’t let me wear it to school,” etc.,
etc.
“There’s the bell,” Miss Olmstead would say as she thought, “Well,
there’s another fifteen minutes lost and I intended to put the
arithmetic problems on the board before school began.”

CONSTRUCTIVE TREATMENT
 Do not over-indulge a talkative child. In a kind but firm way tell
her that you have some important work to do or that you must see
Miss Belmont before school begins. If she persists in talking with you
after school, answer her questions politely but hurriedly, while you
put on your wraps and say as you go out of the room, “I have to leave
now. Are you ready to go home?”

COMMENTS

Miss Olmstead did an injustice to both the child and herself.

Valuable time was wasted by allowing the child to talk on at length,
without any motive other than the pleasure of talking.
It is not necessary to cut off entirely a child’s talking with you
outside of school hours. Such pleasant associations between teacher
and pupil are to be encouraged. We are concerned in this case with
the child who likes to talk just to keep herself in the foreground.
By heeding only those questions which have weight, by listening to
the child’s talk only long enough to be polite, you will help her to
control a desire which, unrestrained, will, in the future, make her
presence unbearable.

ILLUSTRATION (SIXTH GRADE)

When Miss Carleton first came to teach in Reforming

the sixth grade in East Orange, New Jersey, Habits
she was warned that certain little girls in her room had the habit of
talking to the teacher whenever they could get an opportunity. They
enjoyed loitering around the teacher whose place Miss Carleton had
taken, because they thought it was her duty to listen to everything
they had to say. As a consequence, they literally ruled the room.
“Miss Kimball says ...” and “Miss Kimball says ...” they would
remark as if they were the appointed interpreters of Miss Kimball.
Miss Carleton made an immediate decision that she would show
the children by her actions that she did not intend to waste valuable
time listening to their empty talk.
 As usually happens with a new teacher, she was surrounded by a
group of girl leaders at the close of the first session.
“Do you bring your lunch, Miss Carleton?”
“Did you know our room is going to give a set of books to the
library this year?”
“That will be lovely,” Miss Carleton politely replied to the last
question, as the first one had been immediately superseded by the
second.
She then stood to arrange her desk in a businesslike manner,
implying that the present moment offered no opportunity for further
discussion.
Immediately she went to her wardrobe, saying as she did so, “I
take it for granted you all brought your lunches. I hope you will enjoy
them. You might move the waste basket a little nearer your desks so
that it will be convenient for your papers and fruit skins.
“When I come back from lunch I shall expect to see each one of
you out in the school yard. It is a beautiful day for a game of Hop
Scotch.
“Good-bye.”
So Miss Carleton tactfully mastered the situation of the first day.

CASE 110 (SIXTH GRADE)

Miss Atkinson was an intelligent, quick, good-natured little

woman whom the children really liked. She never got angry, and her
discipline was good so far as the big misdemeanors were concerned.
The A division was reciting its arithmetic lesson while the B
division studied. Miss Atkinson sent half of her class to the board
and started to give out an example.
“May I find out the lesson from Tom?” A Talking During
boy who had been absent the day before Recitation
was speaking, without pausing to raise his hand for permission.
Miss Atkinson nodded and read the example over again.
“We had that example yesterday,” came from one of the pupils in
the class.
 “No, we didn’t. It was something like it but it wasn’t the same,”
replied another.
Before the dispute was settled and the children at work, five
minutes of the recitation period had been wasted. Ten minutes later,
Alice, of the B division, asked if she might open a window. Then
Grace wanted to borrow a pencil. While Miss Atkinson was showing
Joe how to point off, Henry called out, “How many places must we
carry it out?” By the time the various queries were answered, Joe’s
attention had wandered and in order to make his difficulty clear to
him, the teacher had to go back over the ground already covered.
Thus every class period was frittered away. Questions were
continually being fired at the teacher like shots out of a gun. One
bold pupil was constantly making remarks intended to be funny or to
delay the progress of lessons. Miss Atkinson could not see the harm
in answering the seemingly legitimate inquiries, and her efforts to
curb the general habit of talking aloud were altogether too mild.
Fully one-half of both the children’s and the teacher’s time was
wasted by such interruptions. Serious, concentrated effort was
impossible and the duller pupils were confused and distracted by this
endless breaking into their train of thought.

CONSTRUCTIVE TREATMENT

Insist that the work in hand shall not be interrupted. If for one day
the teacher will persistently refuse to recognize questions spoken
aloud without permission, a long step will have been taken in the
direction of correcting the bad habit.
Allow two or three minutes between classes, if necessary, for
answering the questions of the division which has been studying.
Henry should be led to raise his hand if he needs help, and his
difficulty should be settled in turn—after Joe’s has been explained.
The bold pupil would lose some of his smartness if he were fully
occupied with work. Keeping the pupils constantly busy in the
arithmetic class, by dictating rapidly and putting a premium upon
getting through quickly, prevents discussions upon unessential parts
of the work, such as whether or not the same example had been given
out before; the children do not have time to consider the matter.
COMMENTS

It is not difficult to make children see that the rights of others are
infringed by interruptions such as speaking aloud without
permission. Once this is understood, the teacher must stick to her
refusal to recognize such interruptions. When the children
understand that they are expected to keep silent, they form the habit
of waiting for permission before asking questions. Unless the teacher
shows respect for the lesson in hand—not allowing her attention to
be distracted from it—she can not expect the pupils to do so.
Some teachers are afraid to refuse to answer questions at the time
they arise in the child’s mind, fearing to bring the child to a standstill
in his work and that he will be idle unless his difficulty is settled. It is
a part of a child’s education to learn to be independent, to solve his
own difficulties. Too much dependence on “Teacher” unfits the pupil
for progress in his lessons or in anything else.

ILLUSTRATION (SIXTH GRADE)

The habit of talking aloud is easily cured.

Miss Ellis was called upon to substitute in the place of a teacher
who had been lax in her discipline. The pupils talked aloud almost as
freely as if they had been in their own homes. Miss Ellis knew her
position as substitute would be a hard one, and made up her mind
that she would spend the first day, if necessary, doing nothing but
enforcing order.
The first time a child talked out loud Making Up Time
without permission, she said, quietly, “Now,
John, you know we can’t get very far with this lesson if we are to be
interrupted. And we don’t want to have to take it over again
tomorrow. Suppose you try to settle the matter yourself, or wait until
after this class to ask me.” And she did not answer John’s question.
It was only a few minutes until Isabel remarked that she couldn’t
see what was written on the blackboard from where she sat. Miss
Ellis told Isabel that by standing up she could read what was written
there very plainly, and that it was unfair to the rest of the school for
her to take up their time by speaking aloud.
 At the third interruption Miss Ellis said, again very quietly, “At this
rate we shall all have to stay after school today to finish our work. I
will not answer any more questions until this class is over. Then I
will give you three minutes to do all the speaking, borrowing, and so
forth that is necessary for the rest of the morning. And any talking
aloud will put us just five minutes behind with our work, so we’ll
have to make up that five minutes after school.”
No one went home that afternoon until an hour and a half after the
regular time for dismissal, but the talking aloud habit was broken,
once and for all, during Miss Ellis’ regime.
One big element in a teacher’s control of a school is a phase of
stick-to-it-iveness, namely, her ability not only to prescribe a given
line of action but to stick to it herself and hold her pupils to it day
after day. Too many teachers are spasmodic in their control. They are
very strict for a few days, then grow negligently lax in their
discipline, only to pull their pupils up to the previous standard again
with a jerk. It is just as easy to form good habits as bad ones, but a
teacher can never hope to train a school in good habits if she
punishes today what she leaves unnoticed tomorrow, as Miss Rand, a
seventh grade teacher, did.

CASE 111 (SEVENTH GRADE)

It was Friday afternoon and both teacher Useless Talking

and pupils were weary of the school-room
and of work; all were a little cross and nervous, and impatient for the
dismissal bell to ring.
“Make John quit tying my hair-ribbon to the inkwell,” spoke up a
girl from the back of the room.
Before John’s case was quite settled, “May I erase the boards after
school?” “Does our geography lesson begin on page 268 or 267?” “Do
we have to write our compositions in ink?” and so forth—an endless
string of useless questions, confusing to those who were trying to
study and nerve-racking to the teacher. And besides the talking aloud
there was a constant and needless passing to and fro.
“Now see here, children, this has got to stop. Monday morning
we’re going to turn over a new leaf and put a stop to this talking