Harshita Vatsayan, INDIA'S QUEST FOR SECULAR IDENTITY AND FEASIBILITY OF A UNIFORM CIVIL CODE

Summer Issue 2017 ILI Law Review
Vol. I
INDIA’S QUEST FOR SECULAR IDENTITY AND FEASIBILITY OF A

UNIFORM CIVIL CODE
Harshita Vatsayanï
I Introduction ……………………………………………………… 30 - 32
II Secularism- Concept and its various forms. …………………… 32 - 41
III Secularism versus secularization. ………………………………. 41 - 42
IV Debate surrounding uniform civil code ………………………... 42 - 44
V Promotes national integration ……………………….................. 44 - 46
VI Promotion of gender equality ………………………................... 47 - 53
VII Uniform civil code as a means to achieve clarity, simplicity and 53 - 60

intelligibility in personal laws ……………………………............
VIII Conclusion and suggested manner in which UCC should be 61 - 62

enforced …………………………………………………………...
I Introduction
AT A time when recrudescence of communal violence keeps on rocking the body

politic of India every now and then, it is important to understand secularism in its pristine
form as advocated by Pandit Jawaharlal Nehru, one of the primary architects of the modern
Indian state and the builder of India’s secular, democratic polity. As the question of
secularism today has aroused a lot of controversy and in the name of nationalism many of our
leaders support policies that in practice boil down to communalism and appeasement of the
communalists, it seems very essential to go back to the Nehruvian model of secularism and to
re- examine at the level of research, India’s quest for secular identity.
The need to study the secular ideal becomes all the more important considering the raging
contemporary debate about proscribing triple talaq and polygamy and the unflinching
ï
LL.M. Student , Indian Law Institute, New Delhi.
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commitment and determination of the new political dispensation at the Centre to adopt a
Uniform Civil Code (UCC) for the country.
The argument advanced in support of a UCC is that it will further strengthen Indian
nationalism and shall also make a great impact in addressing gender inequality, which is
very often considered to be the product of archaic personal laws prevailing in the country.
The proponents of UCC argue that it will not encroach upon the religious freedoms of the
communities but shall only curb those religious practices and customs which are violative
of human rights and dignity of individuals. However the opponents argue that adopting a
UCC would lead to tyranny of the religious majority, by unnecessarily imposing an alien
law on the minorities. They view the imposition of UCC as a ‘cultural genocide’,1 which
has a great propensity to create communal flare- ups across the country. They argue that a
more effective way to assure national unity is by reassuring the religious and ethnic groups
that their personal laws will not be diluted and shall be respected. They argue against the
illusion created by the proponents of UCC that there is a logical contradiction between the
idea of a nation- state and a system of different personal laws.2
Since the current debate about adopting a UCC is more emotive than reasoned and
rationalised, there is a pressing need for consultation amongst various religious
communities and their leaders. Any forcible imposition of UCC would not only be against
the secular ethos of our Constitution, but would also mar all the gains we have made so far
as a nation state. Leadership, both at intellectual and political level, should try to evolve a
consensus on the issue and the leaders of the minority community should take the initiative
in arriving at a consensus, so that UCC is not viewed as an imposition by the majority
community.
1 Neera Chandhoke, “Re- presenting the Secular Agenda for India” in Mushirul Hasan (ed.) Will Secular India
Survive? (Imprint One, New Delhi, 2004).
2Gary Jacobsohn Jeffrey, The Wheel of Law: India’s Secularism in a Comparative Constitutional Context (Oxford
University Press, New Delhi, 2003).
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The paper first attempts to study the true nature of Indian secularism and what it is
about i.e., is Indian secularism about erecting a wall of separation between the state and
religion, thereby devaluing religion; or is it about the state treating all religions as equal
and thus validating religious identities or is it about binding minority rights into the concept
of secularism? The article then studies the historical evolution of secularism in India, and
attempts to evaluate the variations of models of secularism to be adopted i.e. the historical
tug of war between ‘Sarva Dharma Sambhav’ or ‘Dharma Nirpekhshta’ models of
secularism. As the secularism debate has been dogged by sharp and often acerbic polemics,
the author shall also study the appropriateness of secularism in the Indian context because
of the religious catholicity that is so pervasive in India. The author has shall also
endeavored to study the correlation between secularism and secularization and how the
ambiguity about the true contours and meaning of secularism has often hampered the
realisation of the secular ideal. Attempt has also been made to briefly study the approach of
the Indian judiciary towards the secular goal enshrined in our Constitution. Having thus
studied the fundamentals of the secular ideal in India, the author has discussed the
desirability of having a UCC vis- a- vis the desirability of retaining cultural pluralism along
with religious legal pluralism.
II Secularism- Concept and its various forms
At the outset, it is to be realised that India is a unique country, having geographic,

religious, social and cultural diversity. The Constitution of India makes repeated efforts to
recognize and protect the diversity of social scenario and re-emphasizes unity in diversity.
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It recognises ‘pluralism of religions and convictions’. 3 Unfortunately however this ideal

has been subject to recurrent attacks made by nationalists/ chauvinists and the religious
fundamentalists belonging to all religions. Religion has been a dominating factor in the
Indian society. On one hand, religion has contributed to spiritual upliftment of the masses,
while on the other hand wrong interpretation of religious edicts has perpetuated many
social evils4. The religion and custom based personal laws of different communities have
been a major cause of this discrimination. In order to combat these social maladies, our
Constitution framers adopted secularism as one of the constitutional goals, which became a
separate Preambular goal later on.5 Secularism isn’t just a normal constitutional goal but a
3 Report of the Liberhan Ayodhya Commission of Inquiry, available at: http://mha.nic.in/LAC (last visited on Dec.
20, 2016). The Liberhan Commission (Liberhan Ayodhya Commission of Inquiry) was a long-running inquiry
commissioned by the Government of India to investigate the destruction of the disputed structure Babri Masjid in
Ayodhya in 1992. Led by retired high court M. S. Liberhan J, it was formed on Dec. 16, 1992 by an order of the
Indian Home Union Ministry after the demolition of the Babri Masjid in Ayodhya on Dec. 6 and the subsequent
riots there. The Commission was originally mandated to submit its report within three months. Extensions were
given 48 times, and after a delay of 17 years, the one-man commission submitted the report to Prime Minister
Manmohan Singh on June 30, 2009. In November 2009, a day after a newspaper published the allegedly leaked
contents of the report, the report was tabled in Parliament by the Home Minister P. Chidambaram. The terms of
reference were as follows:
To make an inquiry with respect to the following matters:
i. The sequence of events leading to, and all the facts and circumstances relating to, the occurrences in the
Ram Janma Bhoomi-Babri Masjid complex at Ayodhya on Dec. 6, 1992 involving the destruction of the
Ram Janma Bhoomi-Babri Masjid structure;
ii. The role played by the Chief Minister, Members of the Council of Ministers, officials of the Government of
Uttar Pradesh and by the individuals, concerned organisations and agencies in, or in connection with, the
destruction of the Ram Janma Bhoomi-Babri Masjid structure;
iii. The deficiencies in security measures and other arrangements as prescribed or operated in practice by
Government of Uttar Pradesh which might have contributed to the events that took place in the Ram Janma
Bhoomi-Babri Masjid complex, Ayodhya town and Faizabad on Dec. 6, 1992;
iv. The sequence of events leading to, and all the facts and circumstances relating to, the assault on media
persons at Ayodhya on Dec. 6, 1992; and
v. Any other matters related to the subject of Inquiry.
4 Devadasi, suttee, untouchability are a few examples.
5 Notwithstanding the fact that the words 'Socialist', and 'Secular' were added in the Preamble of the Constitution in
1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our Constitutional
philosophy. The term 'secular' has advisedly not been defined presumably because it is a very elastic term not
capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made
explicit.
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basic feature of the Constitution, an integral pillar to realize the grandiloquent vision of
promoting fraternity amongst the entire citizenry of India.6 It is true that the Indian
Constitution does not use the word "secularism" in any of its provisions, other than in the
Preamble, but “its material provisions are inspired by the concept of secularism”. 7 When it
promised all the citizens of India that the aim of the Constitution is to establish socio-
economic justice, it placed before the country as a whole, the ideal of a welfare state.8 And
the concept of welfare is purely secular and not based on any considerations of religion.
“The essential basis of the Indian Constitution is that all citizens are equal, and this basic
6 Rajeev Bhargava, Amiya Kumar Bagchi and R. Sudarshan (eds)., Multiculturalism, Liberalism and Democracy,
(Oxford University Press, New Delhi, 2010).
7 Constitution of India, 1950, art. 25 guarantees to all persons equally the freedom of conscience and the right freely
to profess, practice and propagate religion subject to public order, morality and health and subject to the other
Fundamental Rights and the State's power to make any law regulating or restricting any economic, financial,
political or other secular activity which may be associated with religious practice. Art. 26 guarantees every religious
denomination or any section thereof the right [a] to establish and maintain institutions for religious and charitable
purposes, [b] to manage its own affairs in matters of religion, [c] to own and acquire movable and immovable
property and [d] to administer such property in accordance with law. Art. 27 declares that no person shall be
compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the
promotion or maintenance of any particular religion or religious denomination. Art. 28(1) decrees that no religious
instruction shall be provided in any educational institution wholly maintained out of the State funds while
Art. 28(3) says that no person attending an educational institution recognised by the State or receiving aid out of
State funds shall be required to take part in any religious worship conducted in such institution, except with his or
his guardian's (in the case of a minor) consent. Art. 29 guarantees every section of the citizens its distinct culture,
among others. Art. 30 provides that all minorities based on religion shall have the right to establish and administer
educational institutions of their choice. It prohibits the state from making any discrimination in granting aid to an
educational institution managed by a religious minority. Under art. 14, 15 and 16, the Constitution prohibits
discrimination against any citizen on the ground of his religion and guarantees equal protection of law and equal
opportunity of public employment. Art. 44 enjoins upon the State to endeavour to secure to its citizens a uniform
civil code. Art. 51A casts a duty on every citizen of India, among others, [a] to abide by the Constitution and respect
its ideals and institutions, [b] to promote harmony and the spirit of common brotherhood, among all the people of
India, transcending, among others, religious and sectional diversities, [c] to value and preserve the rich heritage of
our composite culture, [d] to develop scientific temper, humanism and the spirit of inquiry and reform; and [e] to
safeguard public property and to abjure violence. These provisions by implication prohibit the establishment of a
theocratic State and prevent the State either identifying itself with or favouring any particular religion or religious
sect or denomination. The State is enjoined to accord equal treatment to all religions and religious sects and
denominations.
8 A welfare state is a concept of government in which the state plays a key role in the protection and promotion of
the economic and social well-being of its citizens. It is based on the principles of equality of opportunity, equitable
distribution of wealth, and public responsibility for those unable to avail themselves of the minimal provisions for a
good life. The sociologist T.H. Marshall identified the welfare state as a distinctive combination of democracy,
welfare, and capitalism. (available at: http://en.wikipedia.org/wiki/Welfare_state; last visited on Nov. 4, 2014).
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equality (guaranteed by article 14) obviously proclaims that the religion of a citizen is
entirely irrelevant in the matter of his fundamental rights”.9
With this backdrop in mind, we should now try and understand what secularism means
and what its contours are. Secularism is an elastic term subject to varying interpretations
across different polities. Generally secularism may be defined as the neutrality of the state
in matters relating to religion or creed. All secular states have one thing in common: they
are neither theocratic nor do they establish a religion.10 It may also be understood as “non-
patronizing attitude of the state to any one religion”. 11 In a secular state, there is no state
religion and every citizen is free to preach, practice and propagate any religion. Thus,
secularism defines the way the people of a country carry on their individual affairs as also
their behaviour towards others. According to Encyclopedia Britannica it means: 'Non
spiritual, having no concern with religious or spiritual matters... anything which is distinct,
opposed to, or not connected with religion'. 12 Thus, in the western sense of the term a
secular state is one, which is not connected with and not devoted to religion. It means
separation of religion and state i.e., state shall not get involved in any religious activity.
Secularism is first and foremost a normative doctrine that opposes all such forms of
inter-religious domination and is opposed to all forms of institutionalised religious
domination.13 An equally important dimension of secularism is its opposition to intra-
9 SR Bommai v. Union of India, [1994] 2 SCR 644; AIR 1994 SC 1918.

10 Neera Chandhoke, “Secularism” in The Oxford Companion to Politics in India, eds. Niraja Gopal Jayal and
Pratap Bhanu Mehta (Oxford University Press, New Delhi, 2010).
11 Arthur Mayhew, Faber & Gwyer, “Christianity and the Government of India” 5(1) Bulletin of the School of
Oriental and African Studies (Oct.1929).

12 Britannica Encyclopedia; Secularism is any movement in society directed away from otherworldliness to life on
earth. In the European Middle Ages there was a strong tendency for religious persons to despise human affairs and
to meditate on God and the afterlife. As a reaction to this medieval tendency, secularism, at the time of the
Renaissance, exhibited itself in the development of humanism, when people began to show more interest in human
cultural achievements and the possibilities of their fulfillment in this world. The movement toward secularism has
been in progress during the entire course of modern history and has often been viewed as being anti-Christian and
antireligious, available at: http://www.britannica.com/EBchecked/topic/532006/secularism (last visited on Dec. 11,
2016).
13Gary Jacobsohn Jeffrey, The Wheel of Law: India’s Secularism in a Comparative Constitutional Context (Oxford
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religious domination. Put positively, it promotes freedom within religions, and equality
between, as well as within, religions. To be truly secular, a state must not only refuse to be
theocratic but also have no formal, legal alliance with any religion. The state should not
identify itself with any particular religion. The pluralism of society requires that there be
some kind of neutrality, or “principled distance,” to use Rajeev Bhargava’s term.14
A secular state must be committed to principles and goals which are at least partly
derived from non-religious sources. These ends should include peace, religious freedom,
freedom from religiously grounded oppressions, discrimination and exclusions, as also
inter-religious and intra-religious equality. To promote these ends the state must be
separated from organized religion and its institutions for the sake of some of these values.
However, there is no reason to suggest that this separation should take a particular form. In
fact the nature and extent of separation may take different forms, depending upon the
specific values it is meant to promote and the way in which these values are spelt out. One
pertinent point to be noted about secularism as noted by Charles Taylor15 is that: 16
it involves in fact a complex requirement. … … … we can single out three, which
we can classify in the categories of the French Revolution trinity: liberty, equality,
fraternity. First, no one must be forced in the domain of religion, or basic belief.
This is what is often defined as religious liberty, including of course, the freedom
not to believe. This is what is also described as the ‘free exercise’ of religion, in
the terms of the US First Amendment. Second, there must be equality between
14 Rajeev Bhargava, “What is Secularism for ?” Secularism and its Critics, Rajeev Bhargava (ed.) 486–520, see
especially, 493–4 and 520 for “principled distance” (New Delhi, Oxford University Press, 1998); and Rajeev
Bhargava, “The Distinctiveness of Indian Secularism” The Future of Secularism, T. N. Srinavasan (ed.) 20–58,
especially 39–41 (New Delhi, Oxford University Press, 2007).
15 Charles Taylor, “The Meaning of Secularism” 12(3) The Hedgehog Review (Fall 2010); This essay is adapted
from Charles Taylor, “The Polysemy of the Secular” 76.4 Social Research 1,143–1,166 (Winter 2009); and Charles
Taylor, “Foreword. What is Secularism?” Secularism, Religion and Multicultural Citizenship, Geoffrey Brahm
Levey and Tariq Modood (ed.) xi–xxii (Cambridge: Cambridge University Press, 2009), available at:
http://www.iasc-culture.org/THR/THR_article_2010_Fall_Taylor.php#endnotes; (last visited on Dec. 11, 2016).
16 The First Amendment (Amendment I) to the United States Constitution prohibits the making of any law
respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech,
infringing on the freedom of the press, interfering with the right to peaceably assemble or prohibiting the petitioning
for a governmental redress of grievances. It was adopted on Dec. 15, 1791, as one of the ten amendments that
constitute the Bill of Rights.
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people of different faiths or basic beliefs; no religious outlook or (religious or a

religious) Weltanschauung17 can enjoy a privileged status, let alone be adopted as
the official view of the State. Third, all spiritual families must be heard, included
in the ongoing process of determining what the society is about (its political
identity) and how it is going to realize these goals (the exact regime of rights and
privileges).
This description fits perfectly in the Indian constitutional mould, which also endeavors
to promote liberty, equality and fraternity and ensure the existence of a secular society. Herein
under are discussed three variants of secularism.
Western model of secularism
Western secularism can briefly be described as one wherein there is complete segregation
between religion and state activities. Such an insulated treatment meted out to religion in such
states arose primarily because of the long conflict between the nobility and the ecclesiastical
classes to monopolise political power. When the nobility succeeded in its quest for power, it
thought it best to segregate religion from political life of a nation.
Western model of secularism is generally associated with the American model of
secularism and it envisages mutual exclusivity of religion and state i.e., the state will not
intervene in the affairs of religion and, in the same manner, religion will not interfere in the
affairs of the state. State policies cannot have an exclusively religious rationale and no
religious classification can be the basis of any public policy. Anything to the contrary will be
deemed to be an ‘illegitimate intrusion of religion in the state’.18 Similarly, the state can
neither patronize, sponsor and aid any religious institution nor can it give financial support to
educational institutions run by them. The segregation is so complete that state intervention is
not permissible even on grounds of social reformation.19 Western secularism has a rather
17 Weltenschaaung is the fundamental cognitive orientation of an individual or society encompassing the entirety of
the individual or society's knowledge and point of view. A world view can include natural philosophy; fundamental,
existential, and normative postulates; or themes, values, emotions, and ethics.
18 “Democratic Politics- II”, NCERT Textbook on Political Science for Class 10, (edn. March, 2007).
19 This form of mainstream secularism has no place for the idea of state supported religious reform. For e.g., if a
religious institution forbids a woman from becoming a priest, then the state can do little about it. If a religious
community excommunicates its dissenters, the state can only be a silent witness. If a particular religion forbids the
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individualistic orientation20 and religion continues to be a private matter, not a matter of state
policy or law.
Indian model of secularism
Indian secularism isn’t an exact replica of western model of secularism; rather it is a
variant of western secularism. 21 Indian secularism has western and non- western origins.
Unlike the underlying rationale of the Church - state separation in the west, in India, ‘the
ideas of peaceful co-existence of different religious communities’ have been the central
idea behind adoption of secularism as a goal.
Indian secularism is subject to variegated interpretations and its complexity cannot be
captured by the phrase “equal respect for all religions”. Secularism is much more than mere
peaceful coexistence or toleration. Nehru’s concept of Secular State was one that “protects
all religions, but does not favour one at the expense of others and does not itself adopt any
religion as the State religion”. 22 Secularism for him didn’t mean hostility to religion. Nehru
was not in favour of a complete separation between religion and state.23 Nehru’s idea of
secularism was that all religious groups shall enjoy the same constitutional protection
without any favor or discrimination.24 The Supreme Court elaborating the secular character
entry of some of its members in the sanctum of its temple, then the state has no option but to let the matter rest
exactly where it is.
20 This common conception interprets freedom and equality in an individualist manner. Liberty is the liberty of
individuals. Equality is equality between individuals. There is no scope for the idea that a community has the liberty
to follow practices of its own choosing. There is little scope for community-based rights or minority rights.
21 It is ‘not just an implant from the west on Indian soil’.
22 Nehru; quote taken from Chapter titled “SECULARISM IN EDUCATION”, available at: http://www.ncte-
india.org/pub/human/chap9.htm (last visited on Nov. 30, 2016).
23 Robert Baird, “Religion and the Legitimation of Nehru’s concept of Secular state” in B.L. Smith (ed.), Religion
and the Legitimation of Power in South Asia (Leiden: E.J. Brill).

24Radhakrishnan, Secularism in India, V.K.Sinha (ed.) 127 (1968); Dr. Radhakrishnan said that "the religious
impartiality of the Indian State is not to be confused with secularism or atheism.” In his book Recovery of Faith 202
(Harper Brothers, New York, 1955). S. Radhakrishnan further said, “When India is said to be a secular State, it does
not mean that we reject reality of an unseen spirit or the relevance of religion to life or that we exalt irreligion. It
does not mean that Secularism itself becomes a positive religion or that the State assumes divine prerogatives.
Though faith in the Supreme is the basic principle of the Indian tradition, the Indian State will not identify itself with
or be controlled by any particular religion. We hold that no one religion should be given preferential status, or
unique distinction, that no one religion should be accorded special privileges in national life or international
relations for that would be a violation of the basic principles of democracy and contrary to the best interests of
religion and government. This view of religious impartiality, of comprehension and forbearance, has a prophetic role
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of the Indian Constitution said that Indian “secularism is neither anti God nor pro- God, it
treats alike the devout, the antagonistic and the atheist. It eliminates God from the matters
of the State and ensures that no one shall be discriminated against on the ground of religion
and it emphasizes the ancient doctrine in India that the State shall protect all religion but
interfere with none”. 25 Chinnappa Reddy J has observed that, “...Indian constitutional
secularism is not supportive of religion at all but has adopted what may be termed as
permissive attitude towards religion out of respect for individual conscience and dignity.
There, even while recognizing the right to profess and practice religion etc., it has excluded
all secular activities from the purview of religion and also of practices which are repugnant
to public order, morality and health and are abhorrent to human rights and dignity, as
embodied in the other fundamental rights guaranteed by the Constitution”. 26
Superficially Indian secularism may appear to many as an imitation of Western
secularism and hence an Occidental value. A careful reading of our Constitution however
would show that it is not so in entirety. Indian secularism is fundamentally different from
Western secularism as regards a few things.
Firstly, Indian secularism does not focus only on Church- state separation and the idea
of inter-religious equality is crucial to the Indian conception of secularism. The advent of
Western education in India highlighted hitherto ‘neglected and marginalized notions of
equality in Indian thought’.27 Western education brought into focus intra- community
equality and also ushered in the ideas of inter-community equality to replace the notion of
caste and religious hierarchy. 28 The Indian Constitution does not envisage an irreligious or
to play within the national and international life. No group of citizens shall arrogate to itself rights and privileges
which it denies to others. No person should suffer any form of disability or discrimination because of his religion but
all like should be free to share to the fullest degree in the common life. This is the basic principle involved in the
separation of Church and State.”
25 St. Xavier’s College v. State of Gujarat, AIR 1974 SC 1389.
26 Ambedkar Memorial lecture on 'Indian Constitution and Secularism' quoted in SR Bommai v. Union of India, AIR
1994 SC
27 “Democratic Politics- II”, NCERT Textbook on Political Science for Class 10, (edn. March, 2007).
28 Indian secularism equally opposed the oppression of dalits and women within Hinduism, the discrimination
against women within Indian Islam or Christianity, and the possible threats that a majority community might pose to
the rights of the minority religious communities.
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non-religious state. It only tells that all religions shall be treated equally and there shall be
no discrimination among the citizens 'only' on the basis of their religion in any form or
manner (article 15). The difference lies, therefore, in the fact that whereas in the case of
western states the discrimination by state is absolutely banned, the Constitution of India
permits discrimination on condition that the religious ground is accompanied by another
reasonable ground. By virtue of this, the State is empowered to legislate different laws
applicable to different communities. This further means that the State can accord legal
recognition to its people not only as citizens but also as members of different communities
i.e., as Hindus, Muslims, etc.
Secondly, Indian secularism deals with both religious freedom of individuals and also with
religious freedom of minority communities. 29 Thirdly, Indian secularism has made room for
and is compatible with the idea of State-supported religious reform. 30 The secular character of
the Indian state is established by virtue of the fact that it is neither theocratic nor has it
established any one or multiple religions. Indian model of secularism is in fact a manifestation
of a very sophisticated policy in pursuit of religious equality, which allows the State to either
disengage with religion in American style, or engage with it when required.31 Indian
secularism permits ‘principled State intervention in all religions’. Such intervention may come
at the cost of ‘disrespect to some aspects of every religion’. The secular state of India treats all
religions alike and at the same time “displays benevolence towards them is in a way more
suited to the Indian environment and climate than that of a truly secular State… … … a State
which creates complete separation between religion and the State”.32
Having thus studied the above two forms of secularism, it can be said “Western dictionaries
define secularism as absence of religion but Indian secularism does not mean irreligiousness.
29 Within it, an individual has the right to profess the religion of his or her choice. Likewise, religious minorities also
have a right to exist and to maintain their own culture and educational institutions.
30 Laws can be made regulating the secular affairs of Temples, Mosques and other places of worship; and maths.
(See S.P. Mittal v. Union of India: [1983]1SCR729.) The power of the Parliament to reform and rationalise the
personal laws is unquestioned.
31 Ban on untouchability, sati etc.
32 SR Bommai v. Union of India, AIR 1994 SC
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It means profusion of religions”. 33 Indian secularism doesn’t conform to the idea of Dharma
Nirpekshata,34 it rather adopts the idea of Sarva Dhamma Sambhava.35
Reactionary form of secularism practised across other nations like Turkey
A rather unique form of secularism was practiced in Turkey in the first half of the twentieth
century. This secularism was in stark contrast to the general nature of secularism which adopts
a principled distance from organised religion. It involved active intervention in and
suppression of religion. This version of secularism was propounded and practiced by Mustafa
Kemal Ataturk,36 who had come to power after the First World War. Ataturk was convinced
that only a clear break with traditional thinking and expressions could elevate Turkey and was
hence determined to put an end to the institution of Khalifa37 in the public life. He set out in
an aggressive manner to modernise and secularize Turkey. Ataturk changed his own name
from Mustafa Kemal Pasha to Kemal Ataturk. The Fez, a traditional cap worn by Muslims,
was banned. Western clothing was encouraged for men and women. Such reactionary
form of secularism has been practiced in a few other countries as well, which have tried to
break free of parochialism of their religious tenets. In practicing such form of secularism, the
wall segregating state and religion often crumbles down and the State adopting an activist
stance transcends into the religious sphere.
III Secularism versus secularization
33 Shashi Tharoor, The Elephant, The Tiger, and the Cellphone: India, the Emerging 21st-Century (Penguin UK,
2007).
34 Nirpekshata means neutrality towards all religions and non- interference with religions.
35 Sarva Dharma Sama Bhava is an Indian concept embodying the equality of all religions. The concept was
embraced by Ramakrishna and Vivekenanda, as well as Gandhi and Nehru. Although commonly thought to be
among the ancient Hindu Vedas, the phrase is actually attributed to Gandhi, having been used first in September
1930 in his communications to his followers to quell divisions that had begun to develop between Hindus and
Muslims toward the end of the British Raj. The concept is one of the key tenets of secularism in India, wherein there
is not a separation of church and state, but an attempt by the state to embrace all religions.
36 Mustafa Kemal Ataturk was a Turkish army officer, reformist statesman, and the first President of Turkey. He is
credited with being the founder of the Republic of Turkey. Atatürk embarked upon a program of political, economic,
and cultural reforms, seeking to transform the former Ottoman Empire into a modern and secular nation-state. Under
his leadership, thousands of new schools were built, primary education was made free and compulsory, and women
were given equal civil and political rights, while the burden of taxation on peasants was reduced.His government
also carried out an extensive policy of Turkification.
(http://en.wikipedia.org/wiki/Mustafa_Kemal_Atat%C3%BCrk; last visited on 4th Noember, 2014).
37 Caliph or khalifa is a title used for Islamic rulers who are considered politic-religious leaders of the Islamic
community of believers, and who rule in accordance with Islamic law. A state ruled by a caliph is a caliphate.
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Any debate about secularism would be incomplete without understanding the nuances of the
process of secularisation and how can it be contradistinguished from secularism as a concept.
Secularism is a value whereas secularization is a means to achieve the objective of having a
secular nation. Secularization is the transformation of a society from close identification with
religious values and institutions toward nonreligious (or irreligious) values and secular
institutions.
As societies progress, particularly through modernization and rationalization, religion

loses its authority in all aspects of social life and governance. Secularization refers to the
historical process in which religion loses social and cultural significance. As a result of
secularization the role of religion in modern societies becomes restricted. In secularized
societies, faith lacks cultural authority; religious organizations have little social power.
There is a decline in levels of religiosity. The dream of a secular India necessarily rests on
the process of secularization, which has to go along simultaneously and continuously.
Societal perception towards religious has to change; there has to be a differentiation in
various aspects of social, economic, political and legal life, as each of them becomes more
and more specialized. Secularization can also denote the transformation of a religious into a
secular institution.38 Secularization can also manifest itself in another form where there is a
transfer of activities from religious to secular institutions, such as a shift in provision of
social services from temples, mosques and Churches to the government. Secularization also
requires a change in mentalities of the people inhabiting a State. Individuals should focus
on ‘moderating their behavior in response to more immediately applicable consequences
rather than out of concern for post-mortem consequences’, as is usually seen in societies
which are preponderantly religious. 39
38 Aligarh Muslim University and Osmania University were initially designed to train Muslims for government
service in India and prepare them for advanced training in British universities. Now these universities are open to all
irrespective of caste, creed, religion or gender.
39 John Somerville outlined six uses of the term secularization in the scientific literature; Somerville, C. J. "Secular
Society Religious Population: Our Tacit Rules for Using the Term Secularization”, Journal for the Scientific Study
of Religion (37 (2):249-53 (1998).
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Going by the above indicia for determining whether secularization is taking place in
India, one realizes that a lot has been achieved on this front. Despite this, there is still a
long way to go if India’s tryst with secular ethos has to be a fruitful and happy one.It
should also be realized that we need to appreciate the secular ethos in a proper and
wholesome manner. A piecemeal approach would not suffice. Indian Republic’s secularism
should be characterized by genuine religious freedom; celebratory neutrality and
reformatory justice.40
Having thus discussed the idea of secularism and how it’s related to the process of
secularization, it is time we discussed the arguments advanced in favour of Uniform Civil
Code and also the grounds for assailing the same.
IV Debate surrounding uniform civil code
Arguments in favor of uniform civil code
The debate surrounding personal religious laws and the need for a UCC constitute a key
concern in any discussion regarding the concept of secularism and religious freedom in India.
Though few domains of social life are now governed by secular laws41 based on the principles
of ‘justice, equity and good conscience’, personal religious laws continue to operate without
any significant changes. The colonial masters feared antagonism and local backlash and hence
thought it fit to not interfere in the ‘religious matters of the natives’. They did, however, bring
about certain enactments in the name of ‘reform’ to bring an end to certain reprehensible
practices like sati.42 Certain personal laws, especially of the Hindus, have been codified
accompanied by certain amendments in light of the compulsions of modern times, while
others continue to apply to the respective religious groups in their long-established, traditional
forms. As result of the wary approach adopted by the successive governments too, India has a
complex system of personal laws governing inter-personal relationships despite a
40Mukul Kesavan quotes Rajee Bhargava in his book Secular Common Cause, (Penguin Books India,2001).
41Substantive Criminal laws, commercial laws, transfer of property act etc.
42Available at: http://centreright.in/2011/10/need-for-uniform-civil-code-in-india-a-human-rights
perspective/#.VFPdnXvuEdo; (last visited June. 11, 2017).
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constitutional directive to the legislature to enact a uniform civil code applicable to all
religious groups which should govern all family relationships such as marriage and divorce,
maintenance, custody of children, guardianship of children, inheritance and succession,
adoption and the like. This constitutional directive has not been acted upon in more than six
decades since independence.
The term ‘Uniform Civil Code’ means the same set of secular civil laws shall govern
all persons residing in a country irrespective of their religion, caste and tribe. The main
areas covered under the ambit of UCC are the laws related to marriage, divorce, adoption,
and Inheritance and acquisition and administration of property. The concept of UCC is thus
confined to having uniform family code for members of all communities living in India, not
merely for the sake of uniformity but also for securing social justice for weaker sections in
different communities in the spheres of marriage, divorce, inheritance, maintenance and
adoption. In the Indian context, UCC is a mandate upon the State under article 4443 of the
Constitution and should be conceived as part of secularization of personal laws without
shedding religious identities.
In the beginning strident efforts were made to put the provision for a Uniform Civil
Code in the Fundamental Rights chapter44. But in view of the conflicting opinions45 of the
various members of the Constituent Assembly and with a view to assuage the insecurity of
the religious minorities, provision for UCC was incorporated in chapter IV pertaining to
directive principles of state policy, which are not justiciable but still fundamental in the
43 Art. 44, which deals with the Uniform Civil Code states: “The State shall endeavor to secure for the citizens, a
uniform civil code throughout the territory of India”.
44 Chapter III. Art. 35 in the draft constitution
45 While the founding father of our constitution and Chairman of the Constitution Draft Committee, Dr. B.R.
Ambedkar, supported by eminent nationalists like Gopal Swamy Iyenger, Anantasayam Iyengar, KM Munshiji,
Alladi Krishnaswamy Iyer and others favored the implementation of the Uniform Civil Code; it was strongly
opposed by Muslim fundamentalists like Poker Saheb and members from other religions. On Nov. 23, 1948 a
Muslim member, in Parliament, gave an open challenge that India would never be the same again if it tried to bring
in Uniform Civil code and interfere with Muslim personal law. Earlier, the Congress had given an assurance that it
would allow Muslims to practice Islamic personal Law and the architects of the Constitution, therefore, found a
compromise by including the enactment of a UCC under the Directive Principles of State Policy in art.44.
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governance of India. 46 The arguments advanced in favor of the adoption of a UCC are
manifold. Herein under are a few arguments advanced in favour of UCC.
V Promotes national integration
India’s tryst with destiny which began on August 15, 1947, was clouded by concerns
regarding unity and integrity of the infant nation. After the tragic partition of India, our
founding fathers left no stone unturned to secure the unity of Indian nation. The goal of
national integration was so dear to them that they adopted several innovative methods to
secure national unity. 47It is believed that UCC shall strengthen India’s integrity and there is a
growing clamor for implementing UCC from national integrationists. K.M. Munshi during the
Constituent Assembly Debates48 had at the very outset said:49
Religion must be restricted to spheres which legitimately appertain to religion,

and the rest of life must be regulated, unified and modified in such a manner that
we may evolve, as early as possible, a strong and consolidated nation. Our first
problem and the most important problem is to produce national unity in this
country. We think we have got national unity. But there are many factors - and
important factors - which still offer serious dangers to our national consolidation,
and it is very necessary that the whole of our life, so far as it is restricted to
secular spheres, must be unified in such a way that as early as possible, we may
be able to say. 'Well, we are not merely a nation because we say so, but also in
effect, by the way we live, by our personal law, we are a strong and consolidated
nation.
Even Alladi Krishnaswami Ayyar said that a Uniform Civil Code “actually aims at
amity. It does not destroy amity.”50 He said it was wrong to say that communities cannot
live in harmony if there was to be a Uniform Civil Code. The Uniform Civil Code was also
46 Constitution of India, 1950, art.37.

47 They adopted a unique form of federalism and used the term ‘Union’ instead of ‘federation’.
48 VII C. A. D, at 548.
49 Ibid.
50 C. A. D., Vol. VII, at 549.
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supported by other members of Constituent Assembly like Rajkumari Amrit Kaur, Hansa
Mehta and Minoo Masani, who in their note of dissent attached to the Report of Sub-
Committee on Fundamental Rights argued for adoption of a Uniform Civil Code. If we
study the role of civil codes in other countries like Germany and France, we find that civil
codes have played a positive role in national integration and consolidation. Justice
Tulzapurkar once said: 51
In the context of fighting the poison of communalism, the relevance of Uniform

Civil Code cannot be disputed; in fact it will provide a juristic solution to the
communal problem by striking at its root cause, and it will foster secular forces so
essential in achieving social justice and common nationality.
Chandrachud J in Shah Bano case said: 52
A common civil code will help the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies. No community is
likely to bell the cat by making gratuitous concessions on this issue. It is the state
which is charged with the duty of securing a Uniform Civil Code for the citizens
of this country and unquestionably it has the legislative competence to do so.
The spirit of the nation demands that the law should be the same for all citizens. One
characteristic of a true nation state, it was thought, was that it had a unified substantive law.
The existence of different laws, whose applicability depended upon religion or ethnicity,
was seen as a badge of inferiority; it suggested a political entity prone to disintegration, one
that would have little influence in the world. 53 Further UCC shall act as a safeguard against
political domination by means of minority fundamentalism and shall thus act as a harbinger
of genuine democracy, by preventing encouragement of communalism to achieve political
ends.
51 Justice Tulzapurkar, “Uniform Civil Code”, AIR 1987 SC 17.

52 Mohd. Ahmad Khan v. Shah Bano Begum, AIR 1985 SC 954.
53 John H. Mansfield, “Personal Laws or a Uniform Civil Code?” Sociology of Law, edited by Indra Deva, (Oxford

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VI Promotion of gender equality
Promotion of gender equity is another avowed objective of those favoring UCC. The
proponents of UCC say that it is a known fact that in the personal laws of all the communities,
gender injustice is inbuilt. This is supposed to be the “result of the socio-economic conditions
under which they evolved”. The supporters of UCC sincerely believe that a UCC shall ensure
religious reformation by securing equality between men and women. Personal laws have
invariably been biased against the women. As a result women have undergone many
difficulties in matters concerning their marriage, divorce and inheritance. 54 While one's
religion determines which law will apply to him or her regarding marriage, divorce,
maintenance, guardianship, adoption, inheritance, and succession, a common thread woven
through all of India's religious personal law systems is the patriarchal dominance of men and
the unequal treatment of women.55
Herein under are mentioned a few instances which go a long way in proving the highly
skewed and adverse impact of religious laws on women.
i. The right of all men and women of certain age to marry through free consent and with
complete freedom in the choice of a spouse is recognized internationally. However, in India
personal laws are found wanting in this aspect. Muslim law appears to recognize the right
of a guardian to contract his minor ward into marriage. There is a remedy in the form of
‘option of puberty’ (right to repudiate marriage on attaining puberty) but it is restricted for
as far as women are concerned. Under Hindu law (Hindu Marriage Act, 1955) too, it is not
the mere absence of consent but the obtaining of consent by fraud or force or vitiation of
consent by proved unsoundness of mind that renders the marriage void.
ii. Polygamy is another contentious issue in contemporary world where monogamy, fidelity and
family welfare are the norm. Modern legislation like The Hindu Marriage Act, 1955
prohibits bigamy (covering both polygamy and polyandry) and the Indian Penal Code
54Polygamy, desertion, triple divorces are just a few examples to show the possibilities of harassing women.
55Laura Dudley Jenkins, “Personal Law and Reservations: Volition and Religion in Contemporary India”, Religion
and Personal Law In Secular India.
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makes it an offence.56 However, Muslim personal law recognizes and permits the
institution of polygamy. It is humbly submitted that polygamy is largely an anachronism
from patriarchal times, and it is high time that such a practice is disallowed across all
religions. Allowing polygamy as a prerogative of a select few belonging to a certain
religious community or tribe can create fissures and religious tensions in society. 57
iii. The most preposterous and discriminatory feature of Islamic law of divorce is the recognition
of the concept of unilateral divorce. Accordingly the ‘husband can divorce his wife
unilaterally, without any cause, without assigning any reason, even in a jest or in a state of
intoxication, and without recourse to the court and even in the absence of the wife, by
simply pronouncing the formula of repudiation’. On one hand the husbands have a
tyrannical power to exercise their rights of divorce, which is practically unfettered by any
major restriction, the Muslim women’s right to divorce are circumscribed by important
limitations. Post the passage of Dissolution of Muslim Marriages Act, 1939, a Muslim wife
can obtain a divorce through the intervention of a judge, before whom she must establish
one of a limited number of acceptable bases for divorce. ‘The fact that on a moral plane,
divorce is reprehensible in Islam and has been denounced by Prophet does not provide
relief to women as unilateral divorce continues to be an accepted practice in many
countries including India.’
iv. Even provisions relating to maintenance reveal a kind of inherent gender discriminatory
attitude. Under Hindu law, a wife has a right to be maintained during her lifetime as per the
provisions of the Hindu Adoptions and Maintenance Act, 1956. However even in this
progressive legislation an attempt has been made to reinforce the conservative idea of a
Hindu wife and accordingly an “unchaste” wife is not entitled to separate residence and
maintenance. As far as Muslim law is concerned, many interpretations of the sharia do not
grant divorced women a right to maintenance from their former husband’s beyond the three
56 IPC, 1860, s.494 and 495.

57 There have been many instances in the past of abuse of this practice as permitted under Islam. Often, non-
Muslims convert to Islam in order to marry more than once and while courts examine the intention behind such
conversions to decide on the question of validity of second marriages, such a phenomenon generates strife and also
affects rights of the parties involved.
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month long iddat.58 In India, the Dissolution of Muslim Marriages Act, 1939 denies
divorced Muslim women the right to claim maintenance. In the famous Shah Bano59
judgment, the judiciary attempted to get rid of this anomaly by explicitly bringing such
Muslim women under the purview of the secular Code of Criminal Procedure, 1973
(wherein a wife is entitled to claim maintenance against the husband on the ground of the
husband’s neglect or refusal to maintain her). Shah Bano60 case was a classic conflict
situation between the secular criminal code and religious personal law. In this case, an old
Muslim woman had been divorced by her husband who invoked the Muslim personal law
to deny maintenance to his wife. The Supreme Court, however, applied and interpreted the
secular law, the Criminal Procedure Code, 1973 to grant maintenance. The judiciary is to
be commended for giving a humane and holistic meaning while applying the relevant
provisions. However, the deliberate use of Quran and the endeavors to interpret it in a
particular manner evoked the wrath of the Muslim conservatives, who stressed community
fears of the loss of freedom of religious practice. Finally, the Government, yielded to
pressure from the orthodox members of the Muslim community and, without any
consultation, passed the Muslim Women’s (Protection of Rights in Divorce) Act, 1986, in
spite of protest from progressive Muslims and feminists. This Act ostensible protects
women but in reality protects the husband by not requiring him to pay maintenance. It is
highly discriminatory towards Muslim women in that they are now precluded from the
purview of section 125 of the Criminal Procedure Code, 1973 which had originally
protected Shah Bano. Specific requirements of the new Act also make it much more likely
that a Muslim woman will be required to conduct a court case in order to obtain any
maintenance at all. By indulging in vote bank politics, the government of the day hastily
drafted this piece of legislation so as to confirm to the conservative and traditional view of
the Muslim law governing ‘maintenance’ of divorced women.
58 Iddat is the period a woman must observe after the death of her spouse or after a divorce, during which she may
not marry another man. Its purpose is to ensure that the male parent of any offspring produced after the cessation of
a nikah (marriage) would be known. The length of iddah varies according to a number of circumstances.
59 Mohd. Ahmed Khan v. Shah Bano Begum 1985 SCR (3) 844.
60 Ibid.
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v. Inheritance laws were largely regressive and anti- women in posture. Under the Hindu law,
the Mitakshara branch of law61 denied to a Hindu daughter a right by birth in the joint
family estate and this flowed logically from the fact that her place in the paternal family
was only temporary as she was belonged to her husband’s family on marriage. Modern day
amendments to Hindu law of succession gave Hindu widows the right of succession her
husband’s estate. Till recently, Hindu law was still discriminatory in that the Hindu
Succession Act, 1956 excluded the daughter from coparcenary ownership of ancestral
property. In 2005 the Parliament, by an amendment, took a radical but much-awaited step
towards ensuring equality between Hindu men and women as far as succession is
concerned, and conferred upon daughters the status of coparceners in the family of their
birth, thereby bringing an end to the centuries-old rules of Hindu inheritance that have lost
their relevance and justifications. 62 Islamic law prescribes that generally a man’s share of
the inheritance is double that of a woman in the same degree of relationship to the
deceased. This aspect of Islamic rules is most vehemently criticized for its discrimination
against women, as it is a manifest sample of unequal treatment. However, it is important to
observe here that the Islamic law was more benevolent towards women than its Hindu
counterpart.
vi. Mothers have generally been assigned a statutorily subservient position in the matter of
guardianship and custody of her children. The father is designated the first natural and legal
guardian of his minor; the mother is the natural guardian only after the father. Under
Muslim law, the father is the sole guardian of the person and property of his minor child.
Adoption is another area in family relations where a female suffers discrimination based
purely on her marital status. Need for reforms are felt even in this regard.
61 Mitakshara is a vivti (legal commentary) on the Yajnavalkya Smriti best known for its theory of "inheritance by
birth." It was written by Vijñāneśvara, a scholar in the Western Chalukya court in the late eleventh and early twelfth
century. Along with the Dāyabhāga, it was considered one of the main authorities on Hindu Law from the time the
British began administering laws in India. The entire Mitākṣarā, along with the text of the Yājñavalkya-smiti, is
approximately 492 closely printed pages.
62 Though the full extent of implications of this amendment are yet to be observed, it is nonetheless a commendable
and desired step in the effort to check in-built biases against women in personal laws of this country. More
importantly, this radical amendment was brought by the Parliament without facing any resistance or impediment on
the part of the Hindu community.
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vii. Likewise, under Christian law, a man may obtain a divorce when his wife has committed
adultery, while a Christian woman seeking divorce is required to prove at least two
offenses by her husband, such as adultery with cruelty or adultery with desertion.
In the name of protecting the rights of religious communities, Parliament has thus far
skirted its responsibilities to some of the most vulnerable individuals within those
communities-the women. State neutrality in religious affairs should not come at the cost of
women’s rights. Religious reforms should not freeze in the name of protecting minority rights.
Indian women were granted formal equality by the Constitution which conferred on them
political rights.63 But due to the different personal laws, women experience inequality,
deprivation and violence. Within the family, their position is pitiable. The personal laws are
archaic and anachronistic in a modern democratic society, where individual choices are given
primacy. These laws treat women as chattel and are designed to keep women forever under the
control of men. A uniform civil code is, therefore, foremost a matter of gender justice. One of
biggest criticism working against personal laws is that these antiquated provisions are
discriminatory towards women and seek to undermine their position within the private
domain. 64 Personal religious laws need to be tested for their conformity with principles of
egalitarianism that are the touchstones of our Constitution as well as international
declarations/agreements to which India is a party. Having a UCC is the surest way to ensure
gender equality. S. P. Sathe from Pune who has been working on drafting a Gender Equal
Family Code once said: “Personal laws were never considered a part of freedom of religion."
In his view, the freedom of religion, a fundamental right guaranteed under Article 25 of the
63 Gender equality is a facet of equality and it is one of the basic principles of the Constitution. Moreover, the
doctrine of equality as enshrined in art.14 of the Constitution of India is not merely formal equality before the law
but embodies the concept of real and substantive equality which strikes at all the inequalities arising on account of
vast historical, socio-economic an customary differentiation. Thus, we see that art. 15(3) of the Constitution
empowers the State to make special provisions for protection of women and children. Art. (2) mandate that social
reform and welfare can be provided irrespective of the right to freedom of religion. art .44 would ensure substantive
equality too.
64 Martha C. Nussbaum, “India: Implementing Sex Equality through Law” 2 Cambridge Journal of International
Law (2001), says that “All of India's religious personal law systems suffer from gross sex inequalities. Their shelter,
thus far, from real constitutional scrutiny makes a mockery of India's constitutional commitment to equality and fails
to provide women with the protection they deserve.”
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Indian Constitution, is not absolute and has been, carefully drafted to subject it to prevailing
notions of public order, morality and health. Having thus discussed the two most convincing
arguments for adopting UCC , it would be pertinent to revert back to a statement made by R.
M. Sahai J in his concurring judgment in Sarla Mudgal v. Union of India,65where he said: 66
Freedom of religion is the core of our culture. Even the slightest deviation from it
shakes the social fibre. But religious practices which are violative of human rights
and dignity and involve sacerdotal suffocation of essentially civil and material
freedoms, are to be deprecated. Therefore, a uniform code is imperative both for
protection of the oppressed and for promotion of national unity and solidarity.
Even academicians like Professor Lotika Sarkar, Professor Vasudha Dhagamvar,

Professor CC Desai, 67 Archana Parashar,68 John H. Mansfield69 etc. support adoption of
Uniform Civil Code.
Tahir Mahmood, an authority on the Islamic Law, in his book ‘Muslim Personal Law’, has
also made a powerful plea for framing a Uniform Civil Code for all citizens of India. He says:
"In pursuance of the goal of secularism, the State must stop administering religion based
personal laws”. 70 He says, "Instead of wasting their energies in exerting theological and political
pressure in order to secure an "immunity" for their traditional personal law from the state
legislative jurisdiction, the Muslims will do well to begin exploring and demonstrating how the
true Islamic laws, purged of their time-worn and anachronistic interpretations, can enrich the
common civil code of India." At a Seminar held on October 18, 1980 under the auspices of the
Department of Islamic and Comparative Law, Indian Institute of Islamic Studies, New Delhi, he
65 Sarla Mudgal, President, Kalyani v. Union of India 1995 SCC (3) 635.
66 (1995) 35 SC.
67 C.C. Desai, “Need for UCC for India”, 3 Journal of Constitutional and Parliamentary Studies, 1969.
68 Archana Parashar,Women And Family Law Reform In India: Uniform Civil Code And Gender Equality, 158
(1992).
69 John H. Mansfield, “Personal Laws or a Uniform Civil Code?”, Sociology of Law, edited by Indra Deva, (Oxford
70 Shah Bano, available at: http://judis.nic.in/supremecourt/imgs1.aspx?filename=9303(last visited on May25,
2017)
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also made an appeal to the Muslim community to display by their conduct a correct
understanding of Islamic concepts on marriage and divorce.71
VII Uniform civil code as a means to achieve clarity, simplicity and intelligibility in
personal laws
It is a matter of common knowledge and experience that a legal system cannot achieve
the sublime goal of justice dispensation without simplicity and clarity of its laws. The
history of codification tells us that one of the primary reasons behind codification was to
achieve stability and certainty. Multifarious laws can create conflicting positions and thus
lead to ambiguity. Lon Fuller’s inner morality of law requires certainty of laws as the
desideratum for any legal system. He says that contradictions in the law weaken the
efficacy of legal system. The same can be said about the multifariousness of personal laws
in India too. Conflicting provisions lead to confusion and ambiguity in civil relationship of
the citizens. Though at times it is argued that Special Marriage Act has successfully
resolved this crisis, one must realize that so long as it remains one of the many laws in
application in India, its efficacy is bound to be diluted. Further, very few people, generally
those belonging to the educated class, resort to Special Marriage Act, 1956.
Arguments against uniform civil code
Mainly the objections to the enactment of UCC have all along been raised by the
largest minority community in the country, i.e. the Muslim community. Not only has the
formulation of UCC been opposed all along, even progressive reforms in the personal laws of
the communities, (which are believed to be ordained by religion) have been opposed. Moulvis
and Ullemas have vociferously opposed any attempt to tamper with the personal laws, no
matter how inegalitarian, inequitable and anachronistic they may patently be. The idea of
UCC is subject to a four pronged attack which are as follows:
In the name of religion under article 25
71 Islam and Comparative Law Quarterly, 146 (April-June, 1981).

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Opponents of UCC say that their personal laws are an inseparable and integral part of their
religion. Any tampering with that law will necessarily mean interference with the religion of a
person. This kind of an interference is constitutionally barred. However one must note that the
above argument ignores an important aspect of right to profess, practice and propagate
religion. The right under article 25 is subject to public order, health and morality. Also, the
State can intervene to bring about social reform when such reforms are needed for societal
welfare. In the guise of religion, a practice which is socially reprehensible cannot be allowed
to continue. Also one must note that article 25 guarantees right to religion and not right to
application of archaic personal laws.
Lessons can be learnt from European nations too, where everyone including minorities are
subject to the same set of laws. No objections are raised and no exceptions are made. Over
there, common laws in civil matters are not considered to be tyrannical by the minorities. In
India, UCC has been opposed on the frivolous ground that it would be an imposition of Hindu
religion on the minorities. “One objection raised by the Muslim community to the enactment
of a uniform civil code is the fear that it would be influenced by a Hindu perspective
presented as neutral and secular…”72 Though this fear of minorities must be addressed at the
earliest, the idea of having a UCC should not be given up.
In the name of culture under article 29
Article 29 of the Constitution guarantees every section of the citizenry, the right to conserve
its language, script and culture. Accordingly, any interference with their personal laws would
be an affront to their culture and thus in derogation of this prized fundamental right.
Interference with personal laws would tamper with the religious identity of the minorities and
this according to them is an unnecessary and unwarranted intrusion into their religion and
culture. Mr. Mohammed Ismail Saheb once said during the Constitutional Assembly Debates
that: 73
…..the right to follow personal law is part of the way of life of those people who
are following such laws it is part of their religion and part of their culture. If
72 Vrinda Narain, “Women's Rights and the Accommodation of ‘Difference’: Muslim Women in India”, 8 S. CAL.
Rev. L. & WOMEN'S STUD. 43, 62 (1999).
73 CAD, Vol. VII, 540. B. Pocker Saheb, Shri Nizaruddin Ahmad and Shri Mahboob Ali Baig had similar reasons to
oppose UCC.
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anything is done affecting their personal laws, it will be tantamount to

interference with the way of life of those people who have been observing these
laws for generations and ages.
Though the concept of culture is rather elastic and not subject to a straightjacket definition,
one must realize that even cultures evolve and change over time. Culture never remains static
and invariably responds to changing conditions and dynamic forces which shape culture
accordingly. Thus, in modern progressive societies, the antiquated personal laws need drastic
overhauling and if that is not possible then such laws should be buried. A uniform civil code
would perform the reformatory role.
In the name of immutability of religious laws ordained by god and the prophet
Minority spokespersons advanced the argument of religious immutability in order to assert
their point that personal laws are beyond the reach of a civil code. The crux of their argument
was that the laws regulating minority community in family relations are based on their
religion, hence they are unalterable, immutable and permanent. They can thus not be subject
to re- interpretation.74
But this argument in the opinion of the researcher is highly irrational and betrays a
lack of historical knowledge and perspective. There is nothing divine about any personal
law. To say that Muslim personal law is immutable, because it is ordained by God and the
Prophet seems quite medieval and naïve. Muslim law has undergone drastic changes in
several countries which have a preponderantly Muslim population. For instance, polygamy
has been completely prohibited in Tunisia75 and has been curbed in Syria, Morocco, Egypt,
Iran, Pakistan and Jordan by making it permissible subject to certain conditions such as
obtaining permission of the courts before taking a second wife.76 Similarly the right of
74 C.A.D. Vol. VII, Speakers include B Pocker Sahib Bahadur, Nazinuddin Ahmad and Mahboob Ali Baig Sahib
Bahadur etc.
75Tunisian Law of Personal Status, s. 18
76 Muslim countries like Egypt, Turkey and even Pakistan have reformed their laws. Terence Farias, in his chapter
“The Development of Islamic Law” points out that the 1961 Muslim Family Law Ordinance of Pakistan “makes it
obligatory for a man who desires to take a second wife to obtain a written permission from a government appointed
Arbitration Council.” The interesting point regarding Pakistan is that until 1947 both India and Pakistan had
governed Muslims under the Shariat Act of 1937. However, by 1961 Pakistan, a Muslim country had actually
reformed its Muslim Law more than India had and this remains true today. There is no reason why India should
55
Vol. I
Muslim husband to unilaterally pronounce talaq has also been curbed in many countries.
India too saw a change in 1937 when the Dissolution of Muslim Marriage Act was passed
which gave women the right to seek divorce on certain grounds. These examples shatter the
theory of immutability of personal laws. Opponents of UCC also say that while Hindus are
governed by diverse Shastras and largely by customs, other religious communities like
Muslims, Christians and Parsis are children of one monolithic religion with one prophet
and one holy book. Thus, for them the personal laws are definitely immutable. However
even this argument suffers from a vital infirmity. Even Muslim law is not homogenous.
There are several variations across the distinct schools of Islam i.e. between the laws
applicable to Shias and Sunnis. The difference aren’t just restricted to Shia and Sunni sects,
but are found within the various sub- sects like Hanafis; Malikis, Ithana Asharis etc.The
argument of immutability of personal laws is primarily a theological one, but it lacks
rationality. Thus, it should not blindly be accepted.
Another ground for attacking uniform civil code is that it is not going to promote
national integration
Academicians like Paras Diwan disagree with the proposition that Uniform Civil Code
will lead to national integration. He says: 77
The Uniform Civil Code has nothing to do with ‘Indianization’ or ‘national
integration’ or interfering with the religion of one community or the other. It is
simply a question of equal facility of laws to all sections of our people…. All
people of India in all matters….. except the matter coming under protective
discrimination should be governed by one set of laws.
continue with vastly discriminatory personal laws. In fact, the reforms meted out in Tunisia and Turkey helped
abolish Polygamy. Polygamy has also been either banned or severely restricted in Syria, Egypt, Turkey, Morocco,
Iran and even in Pakistan. Besides Muslims who live in U.S.A., Australia, U.K. and other parts of Europe readily
accepted the civil laws applicable uniformly to all citizens in the respective countries but do not feel insecure on that
account. So, then, why, in India should there be such a feeling? Iran, South Yemen, and Singapore all reformed their
Muslim laws in the 1970s. (available at: http://www.legalservicesindia.com/article/article/should-india-have-a-
uniform-civil-code-394-1.html; last visited Dec.28, 2016).
77 Paras Diwan, “The Uniform Civil Code: A projection of equality”; Minorities and the law, ed. Immam
Mohammed, (1972).
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Vol. I
Teesta Setalvad says that “It is feared that commonality in personal laws will promote
Brahmanical cultural hegemony, not national integration.
The anti- secularist nationalist critique has been developed by scholars like Ashis Nandy, T.N.
Madan and T.K. Oommen. They believe that the goal of a single national culture was a
mistake and was not required. According to them such a culture isn’t required for national
unity. They believe that cultural pluralism in India necessitates the recognition and operation
of legal pluralism. 78
Polarisation in the society along religious lines is still very much alive in our country. The
destruction of mosques and temples, communal riots are clear pointers towards the fact that
India is yet to achieve the level of a stable and mature secular democracy. If the Uniform Civil
Code is introduced in such a society, it may lead to further complications and communal
conflagrations. Moreover, for Indians, religion is not just a casual part of their personal life.
Here religion plays a primary role in the lives of most of the people. Therefore the
introduction of the civil code should be a well-thought out and careful process and till the time
a national consensus is not reached the idea of UCC should not be tinkered with.
One should also realize that UCC should not just ensure commonality of laws across all
religions but should also ensure commonality across different sects practicing same religion.
If UCC is to be adopted across all religions, then even customary law should undergo the
process of homogenization.79
In the opinion of the researcher each of the above arguments suffer from the vice of
irrationality and are patently fallacious and untenable. Though UCC is a difficult idea to
implement but no one can deny the desirability and necessity of having one in India.
Judiciary’s approach towards a uniform civil code
The Supreme Court has on umpteen occasions directed the government to realize the
directive principle enshrined in article 44 of our Constitution. It is disheartening to see that
78Donald Eugene Smith, “Religion, Law and Secularism”, Sociology of Law, edited by Indra Deva, (Oxford
University Press, New Delhi, 2005); excerpted from Donald Eugene Smith, India as a Secular State, (Princeton
University Press, Princeton , New Jersey, 1967).
79 At present, despite the Hindu Marriage Act, customary law still works as far as divorce is concerned. Tribals who
form 8 per cent of the population are governed by customary tribal law: Among the Santhal and Bhil tribals, women
cannot hold property. It is only now that they have started demanding protection against polygamy.
57
Vol. I
legislative will is absent when it comes to enforcing such an important progressive

legislative change, which will ensure gender equity as well as put an end to obscurantist
practices and beliefs and simultaneously promote the ideal of national integration. But all is
not lost, as the judiciary has made concerted efforts to ensure that the idea of a common
civil code is not lost in oblivion.
Herein under are enlisted a few progressive judgments authored by high courts and the
Supreme Court, which highlight the need for adoption of a UCC .
In Narasu Appa Mali v. State of Bombay,80 the Bombay High Court observed that:81
Article 44 of the Constitution is ….very important ... This article says that the
State shall endeavour to secure for the citizens a uniform civil code throughout
the territory of India. In other words, this article by necessary implication
recognises the existence of different codes applicable to the Hindus and
Mohammedans in matters of personal law and permits their continuance until the
State succeeds in its endeavour to secure for all the citizens a uniform civil code.
The personal laws prevailing in this country owe their origin to scriptural texts. In
several respects their provisions are mixed up with and are based on
considerations of religion and culture; so that the task of evolving a Uniform Civil
Code applicable to the different communities of this country is not very easy. The
framers of the Constitution were fully conscious of these difficulties and so they
deliberately refrained from interfering with the provisions of the personal laws at
this stage but laid down a directive principle that the endeavour most hereafter be
to secure a Uniform Civil Code throughout She territory of India. It is not difficult
to imagine that some of the members of the Constituent Assembly may have felt
impatient to achieve this ideal immediately; but as Article 44 shows this
impatience was tempered by considerations of practical difficulties in the way,
that is why the Constitution contents itself with laying down the directive
principle in this article.
In Mohd. Ahmad Khan v. Shah Bano Begum,82 the Supreme Court held that:83
80 AIR 1952 Bom 84, judgment delivered by Justice Gajendragadkar and Justice MC Chagla.
81
58
Vol. I
It is also a matter of regret that Article 44 of our Constitution has remained a dead
letter… There is no evidence of any official activity for framing a common civil
code for the country….It is the State which is charged with the duty of securing a
Uniform Civil Code for the citizens of the country and, unquestionably, it has the
legislative competence to do so. A common Civil Code will help the cause of
national integration by removing disparate loyalties to laws which have
conflicting ideologies. No community is likely to bell the cat by making
gratuitous concessions on this issue… A beginning has however to be made if the
Constitution is to have any meaning. Inevitably, the role of the reformer has to be
assumed by the courts because it is beyond the endurance of sensitive minds to
allow injustice to be suffered when it is so palpable. But piecemeal attempts of
courts to bridge the gap between personal laws cannot take the place of a common
Civil Code. Justice to all is a far more satisfactory way of dispensing justice than
justice from case to case.
In Sarla Mudgal, President, Kalyani v. Union of India,84 the Supreme Court observed that:85
The Governments which have come and gone have so far failed to make any
substantial effort towards "unified personal law for all Indians". The reasons are
too obvious to be stated. The utmost that has been done is to codify the Hindu law
in the form of the Hindu Marriage Act, 1955; The Hindu Succession Act, 1956;
the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and
Maintenance Act, 1956 which have replaced the traditional Hindu law based on
different schools of thought and scriptural laws into one unified code. When more
than 80% of the citizens have already been brought under the codified personal
law there is no justification whatsoever to keep in abeyance, any more, the
introduction of "uniform civil code" for all citizens in the territory of India….The
82 AIR 1985 SC 954; Judgment available at: http://judis.nic.in/supremecourt/imgs1.aspx?filename=9303; (last

visited on Nov.29, 2016).
83
84 1995 SCC (3) 635; Judgment available on http://judis.nic.in/supremecourt/imgs1.aspx?filename=10742; (last
visited Nov.30, 2016).
85
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Vol. I
Successive Governments till-date have been wholly re-miss in their duty of

implementing the constitutional mandate under Article 44 of the Constitution of
India. We, therefore, request the Government of India through the Prime Minister
of the country to have a fresh look at Article 44 of the Constitution of India and
"endeavour to secure for the citizens a uniform civil code throughout the territory
of India". 86
In a catena of other cases like John Vallatammom v. State of Kerala87 and Shabnam Hashmi v.
Union of India,88 to name a few, the Supreme Court has recognised the need for a Common Civil
Code. However one disconcerting aspect about judiciary’s approach so far on religious issues is
that it has been steadfast on its view of keeping personal laws outside the scope of article 13.89
Such a parochial approach has given the personal laws a kind of immunity from constitutional
scrutiny and these personal laws continue to violate fundamental rights with impunity many a
times. It is high time the judiciary shed off its circumspect approach towards personal laws so as
to escape popular backlash. What is constitutionally unsound must be struck down at the earliest,
as the judiciary is not a protector of public morality and religiosity but a defender of
constitutional morality.
VIII Conclusion and suggested manner in which UCC should be enforced

Contemporary debates over a UCC appear hopelessly divided along both political and
religious lines. There are fewer debates centered on the concept of UCC and more debates are
rooted in concerns over the process and who controls that process of implementing UCC. A
UCC drafted and imposed by a majority Hindu Parliament will not be accepted as legitimate
among minority groups, no matter how fairly it may be drafted.
86 AIR 2003 SC 2902.

th
87 Judgment available on http://judis.nic.in/supremecourt/imgs1.aspx?filename=19152; (last visited 4 November,
2014).
th
88 Judgment available on http://supremecourtofindia.nic.in/outtoday/wp4702005.pdf; (last visited 4 November,
2014).
89 In a catena of cases the same has been held. The first case in which this proposition was laid down was Narasu
Appa Mali v. State of Bombay, AIR 1952 Bom 84. Recently the same of reiterated in Ahmedabad Women Action
Group v. Union Of India; judgment available on http://judis.nic.in/supremecourt/imgs1.aspx?filename=14318; (last
visited Nov. 4, 2014).
60
Vol. I
The answer, then, lies with promoting a process that brings all concerned voices to the
table: men and women of all religious communities must be included. Since this project is so
ambitious, it becomes all the more imperative that the government should proceed in stages
that will keep religious groups involved in the process.90 By involving both men and women
of the different religious groups in the discussion and final outcome, legitimacy of such a code
would enhance considerably and also its subsequent efficacy. Adopting such an approach
would considerably reduce the focus on majority- minority tensions. On one hand, it would
make each religious accountable for its own reform and on the other it would equally engage
all religious groups in the deliberations, thereby assuaging their fears of being unrepresented/
underrepresented.
To be successful, a UCC needs to reflect India's diversity as well as its commitment to
equality.UCC should incorporate progressive features of all religions and should not just be
a majoritarian imposition. It can be an eclectic mixture of progressive provisions in
different personal laws. Further, one must also realize that a UCC need not entirely
obliterate all personal laws. Ways have to be explored in which their innocuous provisions
may still be retained for those who wish to adhere to them. Some suggest that there should
be a UCC but one should be free to opt out of it. Certain other ways could be thought of
too.91 Such matters should not be rushed with. Sociological investigation and research are
needed before reaching any reliable solution. In an effort to secure gender equality,
Pratibha Jain suggests amending the Constitution as an alternative to the UCC . Her
suggested amendment would make "the rights to practice religion and conserve culture
subject to ensuring the right of equality between men and women," definitively making all
personal laws subject to the Constitution.92 Though, this suggestion appears to be a rational
one, this author is of the view that before the constitution is tinkered with, by way of an
90 SHALINA A. CHIBBER, “Charting a New Path towards Gender Equality in India: From Religious Personal
Laws to a Uniform Civil Code”, INDIANA LAW JOURNAL, pg 695, Volume 3, 2008, available at:
http://ilj.law.indiana.edu/articles/83/83_2_Chibber.pdf; last visited Nov. 21, 2016).
91 Sociology of Law, edited by Indra Deva, (Oxford University Press, New Delhi, 2005).
92 Pratibha Jain, “Balancing Minority Rights and Gender Justice: The Impact of Protecting Multiculturalism on
Women’s Rights in India”, 23 Berkeley J. Int. Law 201(2005).
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Vol. I
amendment, there is a pressing need to evolve a national consensus on the given issue,
failing which the implementation of UCC would prove to be counterproductive and a
highly incendiary topic, with the potential to rupture the diligently woven national fabric.
62

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Harshita Vatsayan, INDIA'S QUEST FOR SECULAR IDENTITY AND FEASIBILITY OF A UNIFORM CIVIL CODE

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Summer Issue 2017 ILI Law Review

INDIA’S QUEST FOR SECULAR IDENTITY AND FEASIBILITY OF A

II Secularism- Concept and its various forms. …………………… 32 - 41

III Secularism versus secularization. ………………………………. 41 - 42

IV Debate surrounding uniform civil code ………………………... 42 - 44

V Promotes national integration ……………………….................. 44 - 46

VI Promotion of gender equality ………………………................... 47 - 53

VII Uniform civil code as a means to achieve clarity, simplicity and 53 - 60

VIII Conclusion and suggested manner in which UCC should be 61 - 62

AT A time when recrudescence of communal violence keeps on rocking the body

II Secularism- Concept and its various forms

At the outset, it is to be realised that India is a unique country, having geographic,

It recognises ‘pluralism of religions and convictions’. 3 Unfortunately however this ideal

To make an inquiry with respect to the following matters:

9 SR Bommai v. Union of India, [1994] 2 SCR 644; AIR 1994 SC 1918.

Oriental and African Studies (Oct.1929).

people of different faiths or basic beliefs; no religious outlook or (religious or a

and the Legitimation of Power in South Asia (Leiden: E.J. Brill).

32 SR Bommai v. Union of India, AIR 1994 SC

As societies progress, particularly through modernization and rationalization, religion

IV Debate surrounding uniform civil code

Arguments in favor of uniform civil code

V Promotes national integration

Religion must be restricted to spheres which legitimately appertain to religion,

46 Constitution of India, 1950, art.37.

In the context of fighting the poison of communalism, the relevance of Uniform

Chandrachud J in Shah Bano case said: 52

51 Justice Tulzapurkar, “Uniform Civil Code”, AIR 1987 SC 17.

University Press, New Delhi, 2005).

VI Promotion of gender equality

56 IPC, 1860, s.494 and 495.

Even academicians like Professor Lotika Sarkar, Professor Vasudha Dhagamvar,

In the name of religion under article 25

71 Islam and Comparative Law Quarterly, 146 (April-June, 1981).

anything is done affecting their personal laws, it will be tantamount to

legislative will is absent when it comes to enforcing such an important progressive

82 AIR 1985 SC 954; Judgment available at: http://judis.nic.in/supremecourt/imgs1.aspx?filename=9303; (last

Successive Governments till-date have been wholly re-miss in their duty of

VIII Conclusion and suggested manner in which UCC should be enforced

86 AIR 2003 SC 2902.

Women’s Rights in India”, 23 Berkeley J. Int. Law 201(2005).

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