Why Manusmriti and Sharia cannot replace the Constitution

By Ram Puniyani* 

The Indian Constitution emerged from the values nurtured during the freedom struggle. Drafted by a broadly representative Constituent Assembly, it lays down the guiding principles of national life—Liberty, Equality, Fraternity and Social Justice.

A section of political opinion—primarily conservative Hindus and those advocating a Hindu nation—opposed it from the outset. Leaders of Hindu nationalist politics, supported by conservative sections of society, articulated their position in an article in Organiser, the RSS mouthpiece, which claimed there was nothing “Indian” about the Constitution and that Hindus would not accept it.

Vinayak Damodar Savarkar went further, declaring that Manusmriti was “the Constitution today.” In the same vein, Swami Avimukteshwaranand recently stated that Manusmriti is above the Indian Constitution.

This drive to assert scriptural authority over constitutional values is not confined to Hindu right-wing thought. Maulana Mufti Shamail Nadwi made a similar claim. The Maulana, who recently gained attention following a debate with Javed Akhtar on the existence of God, said in a widely circulated video clip that Muslims had erred in accepting secularism and the primacy of national institutions over Sharia. He questioned whether believers should accept court rulings that conflict with Islamic law. Critics argue that such statements undermine India’s constitutional secularism and promote religious supremacy.

Manusmriti is a text reflecting Brahminical social hierarchy within Hinduism. Sharia, meanwhile, is a broader legal-ethical framework in Islam, derived from the Qur’an, Hadith (sayings and actions of Prophet Muhammad), Ijma (the consensus of scholars) and Qiyas (analogy). It guides personal conduct, ethics and social norms. Interpretations vary across multiple schools of jurisprudence—Hanafi, Shafi‘i, Maliki, Hanbali and Ja‘fari—leading to considerable diversity.

Of nearly 55 Muslim-majority countries, Sharia forms the basis of national law only in a few—primarily Saudi Arabia, Iran and Afghanistan. Several others apply it partially. In India, it operates only in matters governed by Muslim personal law.

What do societies do when religious laws, codified centuries ago, confront contemporary realities? While Hindu right-wing politics seeks to revive Manusmriti, some Muslim-majority states adopt Sharia wholly, and many apply it selectively or not at all. Yet, the principle remains: Can Sharia supersede a national constitution?

Legal scholar Faizan Mustafa argues that in every modern state, the Constitution is supreme. Many constitutions incorporate aspects of Sharia, but always within constitutional frameworks.

Democratic institutions in Muslim-majority countries vary widely in form and strength. Online debates reflect this divide: critics accuse Mufti Shamail of encouraging Muslims to disregard the Constitution, while supporters praise him for affirming Sharia. Notably, during medieval Indian history, Muslim rulers did not impose religious law on state policy uniformly.

Alternative Islamic voices exist. The late Asghar Ali Engineer, a leading Indian Islamic scholar, emphasised the concept of Shura (mutual consultation), arguing that democracy is compatible with Islamic values. While the Qur’anic injunction to consult people may differ from modern representative democracy, Engineer observed that both share the spirit of collective decision-making and reject authoritarianism. As societies evolve, human institutions must adapt.

Islamic support for democratic institutions has deep roots in India’s own history. Maulana Abul Kalam Azad and Khan Abdul Gaffar Khan worked for a democratic, secular nation during the freedom struggle. More recently, Muslim women in the Shaheen Bagh movement demonstrated democratic resolve in defending citizenship rights.

The contemporary challenge is stark. Indian Muslims today face discrimination under an assertive Hindutva politics, leading to rising conservatism as a defensive response. The urgent task for the community is to safeguard its constitutional rights through democratic means. Divergent schools of Islamic jurisprudence mean even Sharia itself is interpreted differently—raising further questions about what it would mean to elevate it over the Constitution. Meanwhile, personal laws already exist and are increasingly contested.

The dominant threat today comes from assertions that seek to revive Manusmriti—a text embodying hierarchy and inequality—in the name of cultural authenticity. Such efforts are incompatible with a society committed to equal citizenship and constitutional morality.

In contrast, many European countries consciously restrict religion to the private sphere, separating faith from state administration.

We live in contradictory times: universal human values such as dignity and equality find expression in forums like the UN Charter, while religious right-wing movements—both Hindu and Muslim—have gained ground globally. Mufti Shamail may be well-versed in Islamic doctrine, but modern societies must prioritise democratic institutions and contemporary values shaped through collective experience.

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