PROFESSOR FAIZAN MUSTAFA, Vice-Chancellor, NALSAR University of Law, Hyderabad, who has been chosen for this year’s prestigious SAARC Best Law Teacher Award, shared his happiness and experience and suggested guidelines that can help reform judiciary and develop confidence between judiciary and the people in an exclusive interview to MOHAMMAD NAUSHAD KHAN during the former’s visit to Indian Society of International Law in the national capital on 21 August.
Congratulation for the accolade! What was your first reaction the moment you came to know about it?
Thank you, I thought of my students, I have taught at Aligarh, then at Addis Ababa, Bhubaneswar, Cuttack and Hyderabad. Whatever image I have as a teacher is just because of my students. They have made some very generous overstatements about my passion for teaching; this is the reason of dedicating the award to them. The mere reason that I was able to create a quest for knowledge in them makes me a successful teacher.
What according to you should be the motto of a law student? What can he do to achieve social justice?
You see, Shakespeare has said that the first thing we should do is to kill all lawyers. I always think where the substitute of a lawyer is. All the social justice struggles in the world were led by the lawyers and therefore lawyers have a big role to play in our society. Now, a law student of today, in terms of money he would make, is better placed than an engineering or medical graduate. Some students are getting packages of 80 lakh or 90 lakh per annum in the fourth year itself.
Four or five years ago when there was recession and there was an issue of placements even in IITs and IIMs, National Law Schools had no problem because even when a company winds up, lawyers are still required. Whether business is booming or coming to an end, lawyers are required because law is everywhere from the cradle to the grave. As soon as you are born you first have to register then when you die it has to be registered and after the death whatever you have written in your will is going to be enforced through law. My message to law students is that without doubt they would make a lot of money but their commitment to social justice and social causes must remain supreme.
What would be your message to law teachers?
I believe that it is the most exciting time to teach law because national laws and constitutions are fast becoming irrelevant. Today you need to follow decisions of the World Trade Organisation, IMF, etc. When I was doing law, I used to study the decisions of the Supreme Court. Today you have to see what IMF is doing, what World Bank is doing or what WTO is doing. There is a new kind of dispensation taking place and law is becoming global. Therefore, it is the most exciting time to teach law and you cannot be a good teacher if you do not have passion for teaching. In all countries of the world law has been the most sought after profession.
In India, also all our freedom fighters like Mahatma Gandhi, or Jawahar Lal Nehru, Ballabh Bhai Patel, Motilal Nehru were lawyers. In fact, I always say to my students on the very first day that law is such a degree that if you are successful, you will become Motilal Nehru and if you fail you will become Jawahar Lal Nehru. In 1960s and 1970s the value of legal education went down. Now, with the establishment of full-fledged National Law Universities, there has been a sea change. Former Prime Minister Manmohan Singh had once said: “National Law Schools are islands of excellence in the sea of mediocrity.” This is a novel experiment because nowhere in the world you have full-fledged universities of law except in India. And this model is so successful that even candidates selected to IITs and MBBS join them.
Overall quality of students has gone up and the quality of teaching must improve now. I believe that no student today comes to class just to get information because it is all available at the click of a mouse. And therefore there has to be something in the class which he may not get from the net. Critical appreciation of the law and out of box solutions to the legal issues are to be provided in the class. And if this is not the case then students will either bunk or sleep in the class. A mother has the ability to put one child to sleep at a time but a bad teacher will put the entire class to sleep in one go; therefore there has to be use of innovative learning and teaching methods to retain students’ interest. Learning must be enjoyable.
How Law schools can bridge the trust deficit and develop confidence between judiciary and the people?
I believe this is a great achievement of law school because for the first time law schools have brought legal academicians closer to the judiciary. Law schools do not come under the purview of the HRD or law ministry. Law schools work directly under the Supreme Court and High Courts. In a central university, the head of the institution is the President of India but for the National Law Schools it is the Chief Justice of India. And the Chief Justice of the High Court is the ex-officio Chancellor.
There is very close coordination between judiciary and the legal academics. It is good because there were hardly any communication between judges and academicians prior to this experiment. But classical tradition in England, as Lord Denning said, was “there is a court superior to the House of Lords, called Law Quarterly Review”. Whatever judgments the House of Lords gave, a very critical evaluation of those judgments used to be published in the Law Quarterly Review. Similarly, in the United States Judges wait for Harvard Law Review because it is the Harvard Law Review where their judgments are put to criticism. In India, Law schools and their journals should do the same thing.
How badly has ethical degradation in judiciary harmed the sanctity of the institution?
I think if you see newspapers of last few days, the entire debate on the appointment of judges is over critical of judiciary. Some judges, or some oranges in the basket may not be good; but you cannot condemn all of them. If you look at the people’s trust in an institution then it is the highest in the judiciary. India has a very bad judge-population ratio yet our judiciary is highly respected outside India. And where the executive and the legislature have failed and did not perform their respective duties the judiciary had intervened and many a times proved saviour of the nation.
Now in terms of falling ethical standards I believe that charge is not correct because most judges are ethical. If at lower judiciary level something is going wrong then that is to be improved rather than condemning the institution as a whole. Because while criticising judiciary, one must always keep in mind that in the meanwhile the political class has deteriorated too much. If good people are not appointed, it is because of politicians. Look at the ticket distribution, appointment of ministers, one-third of Lok Sabha MPs at any point of time will have criminal charges and look at the kind of corruption you have in public institutions. Almost all their appointments are made on political considerations. I think we have been guilty of overgeneralisations about judiciary.
If you look at the history of the misuse of governmental powers then it is the judiciary that has stood for the rights of people. We have to have an independent judiciary and any effort by the government to control the judiciary has to be resisted. There may be problems in the appointment of judges but the solution we are getting is worse than the disease.
So what according to you is the ideal way of judicial appointments?
I think the ideal way of appointment in the judiciary is that there has to be participation of all institutions. But the haste with which the bill has been passed creates doubt in my mind. About 60 legislations use the expression ‘eminent person in the field’. I believe that it has to be specifically said that these two eminent persons should be from the law. Then even when the Chief Justice of India says no to an appointment still the appointment can be done; this is not correct and I think that this goes against the very spirit of the judicial independence. So we need to devise a system and there has to be a debate. Enough debate has not yet taken place on this issue.
Would you like to suggest any piece of reform in judiciary?
There is need of reforms. For instance, I believe that some of the writ jurisdiction powers must be given to the lower court because lower courts are nearer to the people than the High Courts and the Supreme Court. Also, there are 900 vacancies available in the High Courts already and so the vacancies are to be filled up at the earliest.
In the appointment of Judges primacy should always be given to the opinion of the Chief Justice because his opinion is not just another opinion. In fact, that is the foremost opinion in my view. And then we should have National Judicial Services just like Indian Administrative Services so that we attract the best people to judiciary. Bright people should enter as additional district judges and then go to High Court and Supreme Court; it will surely change the face of judiciary. And of course, Court Management is not the job of judges; it is the professional management thing. And court managers have been appointed in various courts and at NALSAR I have introduced full-fledged MBA in Court Management.
Do you think existing laws on Waqf encroachment are effective and enough?
I am very unhappy about the Bill which was passed by the UPA. There are some good provisions in this but in Haryana for instance the Waqf Board is doing very well. They have given land on lease for cultivation and they are making good money. Now the new law says that all these things cannot be done and power has been given to secretaries. Therefore, that law too was passed in much haste and K. Rahman Khan did not hear the wiser suggestions given to him because he wanted to show that at least he got the Waqf Act amended. But I don’t think that the law has really helped the cause of waqf. There is a need to develop waqf properties as some waqf properties are at very prime locations. And it is such a big community resource that if it is put to full use Muslims will not need governmental help at least for their educational needs.
What according to you is the best possible means to stop misinterpretation of Shari’ah?
You see when it comes to Shari’ah, first of all we need to understand that the bulk of Shari’ah law is juristic law. Juristic law means law developed by jurists. A substantial part of law has come from experts, not from the state. Shari’ah law is not state enacted law. Shari’ah was conceived as a private law. Now, it is the responsibility of Muslim scholars and theologians to first of all Islamise Muslim Personal Law in India. Because the Muslim law you have in India is not Islamic law; it is called Mohammedan law because decisions given by British judges in the interpretation of Shari’ah provisions are part of this law.
There have been judgments like one pronounced by Justice Parker of Kerala High Court. In one judgement he said that Mehr is the price of the woman but this is absurd. The Qur’ān enjoins husbands to pay Mehr as free gift as mark of respect. Similarly, in triple divorce the Qur’ānic provisions are at variance with the current Muslim law. Within the community we need to develop a consensus on whatever reforms we want to have. To say that no reform is acceptable may work for few more decades. We have to say that our laws even as per modern need have enough flexibility and adaptability and that is in-built in our laws. We have not been able to make use of it because it is difficult to develop consensus amongst ulema. But consensus is possible if Muslim legal experts sit with Muslim theologians. Of course I don’t know Islamic law and what is Islamic law on a given issue is best known to a Mufti or an expert in Shari’ah. But we rarely talk. In Muslim Personal Law Board how many experts of law are there?
Ulema should open doors for lawyers, Muslim judges, and Muslim academicians and trust them because they are your people and they are believers and do believe in Shari’ah. You need to construct an argument in modern terminology and that terminology is not available to those who are not trained in western legal traditions. Thus dialogue between ulema and jurists must be initiated.
Similarly our matters are not argued well in the Supreme Court. Our argument that judges don’t have the right to interpret Shari’ah cannot be accepted any more. You have to make argument within modern legal tradition to protect Shari’ah in the name of cultural relativism, freedom of religion, essential aspects of the religion and compatibility with equality mandate. So you have to construct an argument which gives you the results which ulema want. But the language and the tenor of the argument should be as per the modern advocacy techniques and consistent with modern constitutional discourse.
Is Uniform Civil Code feasible for a country like India?
The question is: is it good to have uniform civil code? We tried to have a uniform civil code for Hindus. Has it improved their social and economic status and brought about radical reforms in gender relations? My answer is no. I believe that normative changes in law do not bring about social reforms. So law in itself is not the solution to social problems. Moreover, have we achieved uniformity of personal laws within the Hindu community? In the north within close relatives which is called Sapinada relationship you cannot marry under the Hindu law. But in Madras you can even marry your maternal uncle and that is considered to be good marriage. So there is no uniformity of laws even among Hindus.
I think that the new government came to power on a plank of development and uniform laws have nothing to do with development; therefore it should concentrate on development not on uniform civil code. And if at all you want uniformity then where is the blueprint and what kind of uniform civil code would it be. Who is drafting it? If you think that the Hindu law will become uniform civil law then of course it is not acceptable. We already have a uniform voluntary civil code under Special Marriage Act. How many people marry under the Special Marriage Act? Not even many Hindus marry under the Special Marriage Act.
Therefore, for a diverse country like India I believe that uniform civil code is not an issue. The issue is development, development of all communities, development of all minorities. We must preserve distinctive identities of all people as a plural country. If every day we hear such provocative statements as India is a Hindu Rashtra, I believe that the amount of distrust it will create within the minorities will create a kind of negative sentiments which will not help the country; therefore let us concentrate on the slogans that the Prime Minister said sab ka saath sab ka vikas. You cannot get sab ka saath if all the time you say your religion, culture, outlook to life and personal law are bad. Individual rights are not enough. You need group rights. If you ridicule Muslims as a community, I feel bad. If you say all Muslims are dirty, uneducated, terrorists, they all have four wives, it hurts me. It pains me. Because an individual’s versatile development takes place when the group to which he belongs is also accorded respect. Respectability should be given to Muslims as a community as their contribution in building the nation is no small. They are not inferior to anyone and their contribution is to be acknowledged and their distinctive identity should be maintained and that is what the Constitution guarantees to them.