This post is part of the Digital Islamic Law Lab (DILL) series, in which a Harvard student analyzes a primary source of Islamic law, previously workshopped in the DIL Lab.
Abstract:
Khursheed Ahmad Khan v. State of U.P. is a recent Indian Supreme Court case. Khursheed Ahmad Khan (appellant), a Muslim civil servant, married a second wife without asking his employer, the State of Uttar Pradesh (respondent), for permission as required by Uttar Pradesh’s Government Conduct Rules (Conduct Rules). The respondent subsequently discharged the appellant of his duties. The appellant then sued the respondent in the lower court, claiming that he had in fact already divorced his first wife. His discharge, the appellant claimed, was therefore unjustified. The lower court and subsequently the High Court found that, as a matter of law, the appellant’s claim was unsubstantiated. Before the Supreme Court, the appellant unsuccessfully appealed the ruling of the High Court. The appellant advanced an additional claim, namely that the Conduct Rules violate Article 25 of the Indian Constitution, which guarantees that “[s]ubject to public order, morality and health, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”[1] The Supreme Court held that the Conduct Rules do not violate Article 25, as polygamy is not integral to Islam, and therefore does not constitute a religious practice. As a result, polygamy can be regulated by the State of Uttar Pradesh.
Primary Source: Khursheed Ahmad Khan v. State of U.P., (2015) SCC 105 (India).
India, the world’s largest democracy, is a uniquely diverse country. It is not only home to more than 400 languages,[2] but its 1.3 billion inhabitants comprise a multitude of ethnic, religious, and cultural communities.[3] In order to accommodate the religious diversity of the country, India’s constitution permits every religious group to formulate and govern by its personal laws.[4] For India’s Muslim population, which comprises 14% of India’s inhabitants, this means that Muslim personal law directs family matters such as marriage, divorce, as well as inheritance.[5]
While the Indian Supreme Court has historically been reluctant to weigh in on Muslim personal law, the Court has assumed a more active role in recent years.[6] In Khursheed Ahmad Khan v. State of U.P., the Indian Supreme Court considered a case where a Muslim civil servant, Khursheed Ahmad Khan (appellant), married a second wife without asking his employer, the State of Uttar Pradesh (respondent), for permission.[7] The respondent argued that the appellant’s behavior violated Rule 29(1) of the Uttar Pradesh (U.P.) Government Conduct Rules (Conduct Rules), which requires permission to contract a second marriage, and discharged him of his duties.[8] The appellant claimed that he had already divorced his first wife, but merely failed to inform his employer.[9] The lower court and subsequently the High Court found that, as a finding of fact, the appellant’s defense was unbelievable, as he provided insufficient evidence to challenge the government’s record.[10] On appeal before the Supreme Court, the appellant not only sought to challenge the finding of fact of the High Court, but further claimed that the Conduct Rules violate Article 25 of the Indian Constitution, which guarantees freedom of religion.[11] The Supreme Court promptly dismissed the challenge to the finding of fact. It held “that there is no material on record to show that the appellant divorced his first wife before the second marriage or [that] he informed the Government about contracting the second marriage.”[12] The Supreme Court’s opinion thus focuses mainly on the appellant’s second claim, which presents the issue of whether the Conduct Rules violate Article 25 of the Indian Constitution.
Article 25 of the Indian Constitution provides that “[s]ubject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.”[13] The Supreme Court held that while polygamy is a Muslim practice, it is not an integral part of Islam.[14] Polygamy, the Court continued, is merely a permitted practice, yet there is no obligation – no mandate – to engage in polygamy.[15] As such, polygamy is not a religious practice protected under Article 25, and is not immune from state interference.[16] Furthermore, the Court held, religious practices can be regulated by the legislature in order to protect public order, morality and health, or to provide for “social welfare and reform.”[17] Monogamy, the court further elaborated, is a desirable institution, and as such, part of “social reform”: monogamy comes under the purview of state legislation.[18] The Conduct Rules, the Court concluded, do not violate Article 25 of the Indian Constitution.
The Supreme Court’s reasoning and ruling are significant in two ways. Firstly, it is important to note that the Supreme Court refers to case law dealing with polygamy in the Hindu context – two out of the four cases discussed deal with Hindu polygamy laws, which the Court held were compatible with Article 25.[19] The Court, it seems, seeks to establish its role as a neutral arbitrator, applying the law consistently no matter the religion of the appellant. In fact, the Court explicitly states that the principles established in its case law “are applicable to all religious practices by whichever religious groups and sects in India.”[20] This may reveal that the judges – who are all Hindu men – are acutely aware of their uneasy position in deciding on Muslim law for which they have neither the suitable theological knowledge nor legal background.
Secondly, the Court is significantly deferential towards the legislature. Quoting Bombay v. Narasu Appa Mali, which questioned the validity of the Bombay Prevention of Hindu Bigamous Marriages Act vis-à-vis Article 25, it held that “[T]he right of the State to legislate on questions relating to marriage cannot be disputed.”[21] Indeed, the Court continued, elected representatives initiated the Bombay Prevention of Hindu Bigamous Marriages Act, thereby exhibiting the will of the people who have entrusted the representatives with the power to ensure the welfare of the state.[22] As a result, it is not the Court’s role to challenge the state legislature.[23] While deference to the legislature is not at all uncommon, it still begs the question whether Muslim voices, representing only 14% of the population, are always adequately heard – a consideration the Court conveniently omits from its discussion.
Khursheed Ahmad Khan v. State of U.P. provides useful insight into how the Indian Supreme Court treats constitutional cases regarding Muslim personal law. Considering that the Supreme Court declared polygamy a non-integral part of Islam, it may be argued that its interference with Muslim personal law is ever growing. Whether or not this ultimately prompts the Supreme Court to declare polygamy unconstitutional remains to be seen.
Notes:
[1] Indian Const. art. 25(1).
[2] Speaking in tongues, The Economist (Feb. 15, 2012), https://www.economist.com/graphic-detail/2012/02/15/speaking-in-tongues.
[3] Danish Raza, What Criminalization of Instant Divorce Means for India’s Muslims, The Atlantic (Aug. 4, 2019), https://www.theatlantic.com/international/archive/2019/08/india-triple-talaq/595414/.
[4] Id.
[5] Id.
[6] Narendra Subramanian, Legal Change and Gender Inequality: Changes in Muslim Family Law in India, 33 L. & Soc. Inquiry 631, 648 (2008); The Associated Press, India’s Parliament Oks Ending Instant Divorce for Muslims, N.Y. Times (July 30, 2019), https://www.nytimes.com/2019/07/30/world/indias-parliament-oks-ending-instant-divorce-for-muslims.html.
[7] Khursheed Ahmad Khan v. State of U.P., (2015) SCC 105, at ¶ 3–4.
[8] Id. at ¶ 3–4.
[9] Id. at ¶ 4.
[10]Id. at ¶ 6.
[11]Id. at ¶ 7.
[12] Id. at ¶ 9.
[13] Indian Const. art. 25(1).
[14] Khan v. State of U.P., at ¶ 9.
[15] Id. at ¶ 14(60).
[16] Id.
[17] Indian Const. arts. 25(2)(b) & 14(49).
[18] Khan v. State of U.P., at ¶ 14(50).
[19] Id. at ¶ 14(49)–(57).
[20] Id. at ¶ 14(58).
[21] Id. at ¶ 14(50).
[22] Id. at ¶ 14(51).
[23] Id.