Aligarh: Stating that banning Triple Talaq by the Supreme Court of India would be akin to "creating new crimes", renowned law teacher Faizan Mustafa who is currently Vice Chacellor of NALSAR University of Law, Huderabad on Monday said the government should bring in a law if it was interested in reforms on the issue.
"Banning triple talaq by the Supreme Court is misplaced, as ‘banning’ would invariably mean ‘prohibiting’ some conduct generally through the instrumentality of ‘criminal law’.
“Judiciary cannot create new crimes", Prof Faizan Mustafa said while delivering a lecture on ‘Freedom of Religion and Solidarity’ at Aligarh Muslim University (AMU).
"We need an Act of Parliament to make an act criminal. If government is interested in reforms, it can bring in a law, but will it work?”, he asked.
Addressing the Valedictory Function of All India Sir Syed Memorial Debate 2017 organised by Aligarh Muslim University Students Union (AMUSU) and University Debating and Literary Club at the Assembly Hall, University Polytechnic (Boys), Prof Faizan Mustafa also said that a country cannot be secular without giving equal right to minorities and without making minorities live without fear.
He further said that religion is the substance to any culture and if religion is taken away from society, there will be a down fall in moral and social values too. “Indians are religious people and they live under the jurisdiction of various faiths they follow, which makes them honest and law abiding citizens as well,” said Prof Mustafa.
He said secularism has sustained in India not because of religious minorities, but because of the liberal people from the majority Hindu community, who have always protested suppression of religious, ethnic and linguistic minorities.
Prof Faizan Mustafa also emphasised that religion has huge contribution in structures of societies and cultures as it provides checks and balances in the behaviour of people.
“A God fearing man, will abstain from committing sins while abiding with existing laws in the country,” he said.
"However", he added, "There are people, who kill in the name of religion because there is a decline in spirituality and increase in religiosity."
Prof Faizan Mustafa's comments regarding triple talaq came in the midst of debate in India over the validity of the practice and petitions demanding a ban are filed in the Supreme Court. The Apex Court had fixed May 11 as the date to start hearing on the pending petitions.
Differences over validity of Triple Talaq exist in the Islamic Sharia since the tenure of second Caliph Omar (RA). Muslim scholars and jurists argue that concurrent talaq or triple talaq in one go has never been approved by Prphet Mohammad (peace be upon him), during the tenure of first Caliph Abu Bakr (RA) and the first two years of Caliph Omar's caliphate.
Caliph Omar later approved it as punishment, scholars argue, but later on the practice was annulled by Muslim jurists. It is on this basis, the practice of concurrent talaq has been termed invalid in most of the Muslim countries.
Muslims in India, majority of them followers of Hanafi school of thought, are adamant on the invalid concurrent talaq and are fighting a case with women activists in the Supreme Court.
Interestingly, some renowned Hanafi scholars have also ruled against concurrent or triple talaq. According to the sources in the All India Muslim Personal Law Board (AIMPLB), the members fear that agreeing to any change on triple talaq would open floodgate of interference in other Sharia matters.
It is also learnt that there is a strong dissent among the members of the All India Muslim Personal Law Board (AIMLB) and especially some women members are upset over board's handling of the situation.