UNIFORM CIVIL CODE AND SECULARISM IN INDIA

Mr.
*
Sadashivappa M.S . & Prof. (Dr.) M. S.
**
Benjamin

ABSTRACT
India is having religious and cultural varied society. India is a
known for its bewildering diversity. India is a conglomeration
of people, cultures, languages and religions. This diversity in
language, culture and religious practices has made it as most
attractive nation in the World. India is a country in which its
subjects are ruled by the Constitutional framework. Secularism
is adopted in the democratic state of India, where all the
citizens are treated equally. In India secularism provides for
state neutrality towards religious matters. Constitution of India,
states that ‘State shall take steps to secure for the citizens a
Uniform Civil Code throughout the territory of India’. After
Independence only few attempts have been made to enact laws
that apply to family relations of all Indians regardless of their
religion. The founding fathers of our Constitution supported
inclusion of the concept of Uniform Civil Code in the Directive
Principles of State Policy; they had reasoned that National
Integration and Unity, and Secularism demanded it. The
concept is not static but varies from place to place and time to
time. Many Constitutions which are undoubtedly of a secular
character but nevertheless give recognition to various
features.Indian constitution guaranteed subject to certain
limitations all persons have the religious right to freely
profess, practice and propagate. It provides fundamental
rights, which shows that Constitution has

* Research Scholar, Department of Studies and Research in Law, University of

Mysore, Mysore, Karnataka.
** Professor, Department of Studies and Research in Law, University of Mysore,
Manasa Gangothri, Mysore, Karnataka.
 not adopted merely a negative or passive attitude towards
religion, but has assumed a positive role to protect it and
encourage a reasonably free interplay of religious ideologies.
In fact, execution of Uniform Civil Code will provide
appropriate solution to the problem of communalism by
striking at its root cause because laws of personal are not
uniform. It will foster secular forces, so essential in achieving
social justice, gender equality and common nationality. This
paper discusses the problem of uniform civil code in historical,
social and constitutional contexts in the light of important
judicial decisions and other factors. Any change in personal
laws would impair the Secular structure of the Constitution;
therefore, there shall be protection of minority rights and
liberties. Author will discuss the need of the Uniform Civil
Codefor present scenario and secularism in the framework of
the Constitution and Protection given under the Personal laws.
Keywords: Constitution, Uniform Civil Code, Secularism,Personal Laws
And Religion.
INTRODUCTION
The term secularism is hard to define but, nevertheless, its understanding
is essential since it has powerfully affected the pattern of life in the matter
of political and social. The concept is not static but varies according to each
time and place. Each age, each country, each nation had to engage in the
quest for it. The concept had to be understood in the context of each one’s
own tradition and political and social conditions. Thus, secularism of the
Renaissance was mainly concerned with the exclusion of the religious
affairs from the political and social sphere, while that of the Reformation
was not obsessed with such segregation, but aimed at increased religious
toleration. The constitutions of many modern countries contain provisions
designed to effect more or less, a separation between religion and the state.
But they do not present a uniform pattern. Some, indeed, still accord an
important place in the polity to religion or to some particular religion. In
India secularism provides for the separation of the state from religious
institutions regarding their principles. The conflict between religious faith
and human reason, which forms part of the background to the emergence of
the modern ideology of secularism, surfaced in the last middle ages.
The Uniform Civil Code is, by and large, a child of Independent India.
British government passed few laws which governed the family
relationships without taking consideration of the Religion. After India got
independence, the process of codifying laws relating to Hindus was carried
on further under the helm man ship of first law minister of independent
India, Dr. Ambedkar. Dr. Ambedkar was totally disappointed by the
attitude of Dr. Rajendra Prasad’s and resigned from the cabinet. The first
round for the uniform civil
code had already been lost in the constituent assembly. Further it had noted
that with the exception of Muslim community all other minorities either
acquiesced silently to the notion of a uniform civil code or vigorously
supported it, for the purposes of the uniform civil code, it is the religious
minorities that are regarded as being affected. The United States
Constitution is inspired by the philosophy of the complete separation of the
state from the religion. Many constitutions which are undoubtedly of
secular character but, nevertheless, give recognition to various features.
Uniform Civil Codewas inserted in the Part-IV of the Constitution of
India, which does not impose any compulsory obligation upon the state for
its implication. It is a right time to have set of civil laws governing
marriage, divorce, adoption etc., for protecting and promoting fully human
rights irrespective of caste, creed, race, religion etc., Secularism, Justice,
Liberty, Equality and Fraternity are all inseparable from one another.
SECULARISM AND UNIFORM CIVIL CODE
Secularism is a catchword and watchword of the present century. Like

socialism and democracy, it has proved to be hydra of political science. In

the development of the concept of the Fundamental rights of man, the law
of nature played the very vital and principal part, with the Stoics in Greek
and Roman history, along with Cicero and subsequently with the Christian
Fathers, it was Natural law, as lying behind and above all positive law,
which was the transcending authority delimiting the earthly power of the
State in relation to the Individual. Human Rights are outcome of Natural
Rights. Men are born and remain free and equal in rights, the purpose of all
political association is the conservation of the Natural and Inalienable
rights of Man; these rights are Liberty, Property, Security and Resistance to
1
Oppression.
India will thus have to settle and formulate the main characteristics of its
secularism in the light of its social and political conditions. One great
difference between India and the West may be mentioned at once. India
never had an organised church, Hindu or Muslim, of the Western type.
There never was any contest between the state and church as witnessed in
Europe. The concept of secularism, in its modern form, was articulately
expressed by George Holyoake. Holyoake defined secularism as ‘code of
duty pertaining to this life, founded on considerations purely human and
intended mainly for those who find theology indefinite, or inadequate,
2
unreliable and unbelievable., The characteristics of Western secularism,
arising out of the stress of that historic struggle, should not therefore be
expected to have their counterpart in India. Secularism in India need not be
antithetic or even apathetic to religion. Indeed, it would be unrealistic to
ignore the fact, largely
1 The New Universe of Human Rights, J.S. Verma, Universal law publishing
co.pvt.ltd,2004-ed, at-42.
2 G.J. Holyoake, The Origin and Nature of Secularism (London, 1896), at 41.
true even today, that Indians are a deeply religious people. Religion forms the
substratum of their whole life, though they may not always be conscious of
it.
Early law it has been said, was an integral part of religion, the
identification was perhaps nowhere as complete as in Indian society. The
regulation of secular affairs, which is the subject matter of legal rules, is not
an end in itself but only a means to insure the maintenance of suitable
worldly conditions in which man can realize his spiritual objective.
Moreover, the source of both legal and religious rules is the same. Surely,
it has long history and attempts were made from ancient to modern times to
ensure the secular law. It is asserted by the many people that secular law
always existed side by side. The Arthashastra had written by Kautilya, in
300 B.C., shows to be the earliest code of a purely secular character. It
was, however, strictly not a treatise on law but, as its name connotes, on
the science relating to government and contained exhaustive rules for the
administration of the kingdom in the earliest time. He asserted that the
King’s ordinance was of over- riding authority in the decision of disputes.
Indeed, according to him dharma comes last of all. A new source of law,
purely secular in nature, was there by introduced by Kautilya and given
primacy over other sources. Later Vijnaneswara, the celebrated author of
the Mitakshara, in the eleventh century, controverted the proposition that
property could legally be acquired only by shastric means and established
that the acquisition of property was purely a secular matter. The change
brought about by Vijnaneswara was widely accepted and has permanently
been engrafted upon Hindu law. Hindu law shows that it is possible to
extricate certain portions of law relating to Hindus from the enveloping
meshes of religious practices and put them on a secular base.
The government during the British regime wisely demarcated the
spheres in which religion was apt to tinge the law strongly. It has adopted an
attitude of non-interference and neutrality. Perhaps, further exploration
might have disclosed areas within such spheres which were amenable to
secular legislation. However, the government did not want to take the
initiative; it wanted the initiative from the members of the various
communities. Consequently, a number of Acts were passed at the
instigation of the Hindus in the closed preserve of Hindu law. Little
legislative interference was however, made in the realm of Muslim law.
This experience is of great relevance today and seems to indicate the right
3
line of progress if the goal of uniform secular law is to be realized. One of
the most remarkable Acts passed in the British period on the demand of
Christians was the ‘Caste Disabilities Removal’Act, 1850. It broadly
interdicted the enforcement of laws relating to Hindus and Muslims
prescribing the consequences of an act essentially religious in nature, to
wit, apostasy or excommunication.
3 Secularism: It’s Implications for Law and Life in India, Uniform Civil Code and
Secularism, by S.S. Nigam at 157,158.
 The secularist feature of India is quoted in the preamble to the
constitution of India, which also guarantees justice and equality to the
Indian citizens but in the religious and cultural practices, justice and
equality has been denied to the Indian citizens especially
women.Constitution of India provides secular base in its various articles
specifically articles 25 to 30;they deal about religious freedom and
limitation thereof. All persons have been guaranteed, subject to certain
4
limitations, the right freely to profess, practice and propagate religion. The
word propagation connotes a positive, overt act directed towards another,
may be only on the mental or intellectual plane, with anintention to making
him adopt a certain attitude or course of conduct. Constitution protects and
encourages the religion notwithstanding the prohibition in article 27; the
state has power to constitute a general fund through taxation for the
protection and promotion and also maintenance of all religions and aid can
be given in suitable cases without discrimination for the promotion of any
particular religion or religions.
maintain
Every religious denomination has been guaranteed the right, to establish,
5
and manage religious institutions. State has primary duty to
maintain religious institutions lies with the concerned denomination of
every religion, but there appears to be no objection in giving aid in suitable
cases and without discrimination out of the general fund mentioned above.
The Constitution itself has in article 290-A provided for payment of large
sums out of the consolidated fund for the maintenance of Hindu religious
institutions in Kerala and Madras. All minorities, linguistic or religious
havegot the right to establish and administer educational institutions of
their choice and the state shall make no discrimination against them in
granting aid available for educational institutions even though religious
instruction or religious worship is conducted therein provided that there is
no compulsion on any student to attend such instruction or worship and
there is no discrimination in admission on the basis of religion, race, caste
6
or language. Article 337 of the Indian Constitution provides that
educational grants would continue to be made by the state to Anglo-Indian
community for a certain period. Article 28 prohibits that no religious
instruction shall be given in any educational institution wholly maintained
by the funds of the state.
THE UNIFORM CIVIL CODE AND ITS NECESSITY
It is necessary that law be divorced from religion. With the enactment of
a uniform code, secularism will be strengthened; much of the present-day
separation and divisiveness between the various religious groups in the
country will disappear, and India will emerge as a much more cohesive and
integrated nation. It is certainly difficult to formulate uniform civil code and
it
4 Article-25 of the Constitution of India
5 Article 26 of the Constitution of India
6 Ibid.,Article 29
would
be of a complex and even delicate nature. The Constituent Assembly
discussed in detail the question whether the state should have the power to
legislate on matters of personal law and whether or not a guarantee of the
right of religious freedom would conflict with the codification of such
laws. It is interesting to note that whilst the Hindu members emphasized
that draft article-19 (guaranteeing freedom of religion) did not exclude the
jurisdiction of the state in personal law, the Muslim members, on the other
7
hand, favored the continuation of the British policy of neutrality. N. Ahmed
asserted that the secular state of India should not be endowed with the
legislative power to encroach upon the beliefs and practices of any
religious community. He said, ‘What the British in 175 years failed to do
or were afraid to do, what the Muslims in the course of 500 years refrained
from doing, we should not give power to the state to do all at
8
once.’ pokerSahebBahadur argued that personal laws interwoven with
religion and that the secular state of India should permit its citizens to
practice their own religions, lead their own lives and observe their own
9
personal laws.
The makers of the Constitution had been aware of this. They placed
article- 44 in Part –IV of the Indian Constitution which, though essential in
the governance of the country, does not lay the positive obligation upon the
state enforceable either by legal or constitutional means. Moreover, the
mild language of the article itself seems to express a hope rather than issue
a mandate. Nevertheless, the article has set a goal and endeavor should be
made, to achieve it although the task would be long and arduous. Firstly
the word ‘uniform’ in the article, 44 shall be understood in a restricted
sense. List II in the Seventh schedule to the Constitution of India contains a
various items which are within the exclusive legislative competence of the
autonomous state legislatures. It seems to have been acknowledged that
uniformity of the law with respect to these items is either unattainable or
unpractical or perhaps, undesirable. Uniformity, therefore, is to be
attempted in other fields of the law, and it must be said that considerable
progress has been made in such direction. Very importantly provisions
inthe personal laws of Hindus and Muslims, which are still applicable in a
few matters such as succession, inheritance, adoption, family relationship,
marriage, religious usages or institutions. But here the difficulty to
formulate the common civil code is that the laws are largely interwoven
with religion, it means some parts are deeply rooted in religious dogmas,
beliefs or usages. Therefore the task of state is to extricate as much of it as
possible from the meshes of religion, and then attempt of find legislations
which are common to the two systems or similar. Thus, it is hoped that the
uniform civil code will be formed which might in course of time, extend its
scope by wearing away the divergent parts through a process of interaction
and permeation.
7 Constituent Assembly Debates, VII at 543.
8 Id at 544.
9 Ibid at 541.
 Uniform Civil Code is necessary for national unity and for the protection
of the larger Community. The importance of uniform civil code is
understood in modern times which are evident in the judgments of the
Supreme Court suggests that recommend for the implication of uniform
civil code to resolve the prevailing controversies in personal laws and to
ensure basic human rights to all the citizens of India. The religion has been
the vital part of India. Religion has resulted in the enactment of personal
laws. The concepts of marriage, divorce, succession, adoption etc., are
governed by the Personal laws.The United States of America’s
Constitution is inspired by the philosophy of the complete separation
between the state and religion. The first amendment provides that
‘congress shall make no law respecting an establishment of religion. Court
had prohibited the state from making laws which ‘aids one religion, aid all
10
religions or prefer one religion over another’ or levy tax to support any
11
religious activities or institutions in any shape or form, or imparting of
religious instruction by or in state aided schools.
After independence only a few attempts have been made to enact laws
that apply to family relations of all Indians regardless of their religion. For
example Special Marriage Act-1954, Dowry Prohibition Act-1961, the
Medical Termination of Pregnancy Act-1971 etc., The Apex Court also
directed the Union Government in many cases to legislate uniform laws for
the whole nation. Dr. Ambedkar concluded his argument on uniform civil
code by saying ‘It is therefore, no use making a categorical statement that
the Muslim law has been an immutable law which they have been following
from ancient times. That law as such was not applicable in certain parts and
it had been made applicable ten years ago. Therefore, if it was found
necessary that for the purpose of evolving a single civil code applicable to
all citizens irrespective of their religion, certain portions of the Hindu law,
not because they were contained in Hindu law but because they were found
to be the most suitable, were incorporated in the new civil code projected by
article-35. I am quite certain that it would not be open to any Muslim to say
that the framers of the civil code had done great violence to the sentiments
of the Muslim community. The Constitution Preamble states that to
constitute India into secular, democratic, republic which means, there is no
state religion for India. Every religion or community may be at liberty to
preserve their most essential integral part of their custom. India is a secular
state; it shall not discriminate against anyone on the basis of religion. To
eradicate violations ofbirth rights of human being in the name of religious
belief and personal laws certainly there shall be uniform civil code. The
significance attached to the Part-IV was recognized in the Minerva Mills v.
12
Union of India where the Supreme Court
10 Everson v. Board of Education (1947) 330 U.S.1
11 McCollum v. Board of Education (1948) 333 U.S. 203
12 AIR 1980 SC 1789.
of India held that the fundamental rights must be harmonized with the directive
principles of state policies and such harmony is one of the basic features of
the constitution.
The purpose of Uniform Civil Codeis to eradicate immoral cultural and
religious practices prevailing in various communities and bringing all the
positive aspects of those communities under a codified statute. Indian
society is formed on the base of ‘Unity in diversity’. It is diversified by
various religions, culture, language and occupation. The very object of
Article-44 of Indian Constitution is to address the discrimination against
vulnerable groups and harmonize diverse cultural groups across the
country. Supreme Court of India had issued notice on a Public Interest
Litigation for enforcement of uniform civil code while entertaining two
separate public interest litigations, seeking uniform divorce laws and
uniformity in grant of maintenance and
alimony The effective
13
to women and sought Centre’s response.
implementation of a ‘Uniform Civil Code’ can aid the state in granting and
safeguarding many more human rights. India is not a ‘Melting pot’ but it
is a ‘Mosaic’. India is a country where all religions and ways of life -
Hindus, Muslims, Jews etc., are assimilated by the people of India. India
believes in ‘Unity in diversity’ a principle which is based on democracy,
federalism, tolerance and secular character of the state.
JUDICIARYAND UNIFORM CIVIL CODE
The Apex Court being a protector of Constitution, has played pivotal
role in protection of basic rights of human beings and essential freedoms
by recognizing unrecognized rights within the recognized rights under the
articles of the Indian Constitution. The Indian Supreme Court has delivered
various crucial judgments, which may play a vital role in the judicial
history concerning protection of human rights and emphasized the
importance of ‘uniform civil code’. In Mohamed Ahmed Khan v. Shah
14
Bano Begum, Shah Bano was a sixty year old woman and Khan’s first
wife claimed maintenance from her husband. She was divorced by her
husband two years after she was deserted him. The District court awarded
compensation but he has appealed against this judgment on the basis that
this judgment violated his rights, which have been conferred by Muslim
personal law under which he was not required to maintain his wife after
they were divorced. Supreme Court decided that the right conferred by
section-125 of the Criminal Procedure Code-1973, can be exercised
irrespective of the personal laws of the parties and also directed the
parliament to frame uniform civil court. Unfortunately, The Muslim
Women (Protection of Rights on Divorce) Act-1986 was passed by the
Parliament which clearly denied Muslim women to claim maintenance
under section- 125 of the Criminal Procedure Code-1973. In
SaralaMudgal v. Union of

13 https://timesofIndia.indiatimes.com, visited on 20/03/2022 at 10 A.M.

14 AIR 1985 SC 945.
 15
India court observed that ‘the state shall try to secure for the citizens a uniform
civil code throughout the territory of India. It is unequivocal mandate under
Article-44 of the Constitution which seeks to introduce a uniform personal
law a decisive step towards national consolidation. The practice of
changing one’s religion to have second marriage without dissolving the
first marriage was held to be invalid.
16
In Ahmadabad Women’s Action Group v. Union of India the case has
been filed by a voluntary organization working for women empowerment.
The petitioners in this case challenged several traditional practices under
the Personal lawsof Muslims as violative of Articles-14, 15 and
unconstitutional. The Supreme Court India did not take comprehension and
saw that the issues brought up include issues of state strategy with the
judiciary does not have any concern. The remedy lies with the legislature
17
and not the courts. In SwapanaGhosh v.SadanandaGhosh the spouse
observed that her husband and the adulteress to be lying on the same bed at
night and further evidence of the neighbors that the husband was living
with the adulteress as husband and wife. Under section-10 of the Indian
Divorce Act-1869, husband is entitled to dissolution on the ground of the
wife’s adultery; the wife is not so entitled. The court held that this is
sufficient evidence of adultery. In PragatiVerghese v. Cyrill George
18
Ghosh directions have been given by the courts upon the legislature to
enact suitable amendments to the discriminatory provisions. Section 10 of
the Indian Divorce Act-1869 denies the Christian woman right to get
dissolution of marriage on the grounds of cruelty even when the marital
relationship has been broken. Court holding the view that the indicated
portions of section-10 of the said Act ultra vires and against the Articles 14,
15 and 21 of the Constitution and the same are accordingly struck down.
They further found that the provisions of sections 16, 17 and 20 of the act
are also arbitrary and unreasonable. They suggest that the legislature should
intervene and carryout suitable amendments to the Act at the earliest.
19
In John Vallamatton v. Union of India Court observed that this
impugned provision as invalid and violative of Articles 14, 15, 25 and 26
of Indian Constitution and section-118 of the Act is unconstitutional and is
liable to be struck down as unconstitutional. Section-118 of the Indian
Succession Act- 1925 states that a person having a nephew or a niece of
any nearer relative cannot bequeath his property for religious or charitable
use unless the will is executed not less than 12 months before the death of
the testator and it is deposited within six months from its execution in some
place provided by law

15 AIR 1995 SC 1531.

16 AIR 1997 SC 3614.
17 AIR 1979 Cal.1.
18 (2003)6 SCC 611.
19 (2006)2 SCC 578.
for the safe custody thereof and it remains in such deposit till the death of the
testator. The petitioner is aggrieved by the discriminatory treatment meted
out to the members of the Christian community under the Act. The present
case shows that absence of a uniform civil code in the country has made
the Christians suffer discrimination for many years. In Seema v. Ashwani
20
Kumar held that marriages of all persons who are citizens of India
belonging to various religions should be made compulsorily registrable in
their respective states, where the marriage is solemnized. The Supreme
Court of Indian has ordered that all marriages be registered with a view to
prevent child marriage and harassment in matrimonial and maintenance
21
cases. In Jose Paulo Countinho v. Maria LuizaValentina Pereira the
Supreme Court of India made an observation relating to the Centre delaying
the implementation of the Part-IV of the Constitution by not framing a
‘uniform civil code’ despite being provided in the Indian Constitution. In
this case question arose for consideration that whether property succession
of a Goan situate outside Goa in India would be ruled by the ‘Portugese
civil code’-1867 or under the ‘Indian Succession’ Act-1925. All these
above judgments of Supreme Court of India emphasized on the
implementation of the ‘uniform civil code’ in Indian Territory.
CONCLUSION
History shows that in large and important areas the influence of religion
has become feeble or been found to be detrimental, these would come
under full sway of secularism. But, there are many areas where in the
religious influence is very strong and even a secular state must recognize
and make suitable provisions for it. The respective areas have to be
demarcated with understanding, sympathy and vision. Moreover, since
Indian society is multi- religious, the religious element in its own sphere
would not itself be of uniform character but will be diverse and may even
give rise to characteristic stress and strains. Secularism in India has
therefore to encourage the philosophical aspect of co-existence. The
‘uniform civil code’ is by and large a child of independent India. There is a
need to bring uniformity in personal laws.
State shall balance between the‘fundamental rights’ with ‘directive
principles of state policies’ with respect to ‘uniform civil code’ and it shall
also ensure the concept of valuing and preserving the composite culture
and renouncing practices that are violative of the dignified rights of
women. All major policy decisions have to be arrived at on the basis of
free exchange of views and as far as possible by common consent.
Secularism will have to convert not conquer and in the process there might
even be some change in its own nature. Indian secularism therefore is not
the antithesis of religion but it
20 http://www.legalserviceindia.com, visited on 20/03/2024 at 11 A.M.
might itself imbibe a certain measure of spiritualism or at any rate religious
tolerance.
The Indian Supreme Court observed that the need of the hour having a
‘uniform civil code’ in several cases. There shall be common civil laws
governing succession, marriage, divorce, and other concepts for the better
protection and promotion of rights irrespective of caste, creed, race and
religion. It is difficult to implement ‘uniform civil code’ without tears
though for the betterment of the whole society it is very necessary to have
‘uniform civil code’ and for protection and promotion of basic human
rights is only possible through implementation and making suitable
legislation relating to‘uniform civil code’ throughout the country. Societal
change is not possible by enacting laws but state shall educate the citizens,
reduction in the political influence over uniform civil code and this must
not be misused or erase the cultural and religious values. In a Democratic
Republic where the diversity in culture, religion, language and customs
assumes landmark characteristics as in India introducing a uniform civil
code without achieving consensus among the minorities in particular, may
lead to disintegrate the nation in the name of religion. Therefore, state shall
take necessary steps to enforce uniform civil code without affecting the
essence of diversity.

178
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