ISSN 2455-4782

1 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

THE CHANGING COURSE OF SECULARISM AND NEED OF

UNIFORM CIVIL CODE

Authored by: Harshvardhan Sharma*

* Advocate, High Court of Madhya Pradesh, Bench at Indore

__________________________________________________________________________________

INTRODUCTION

Secularism, a word, which has been a part of social and political life of citizens from a very

long period. A word which is as complex as simple it seems. A word that has witnessed a

number of interpretations from number of people. In liberal political theory secularism is

understood as a combination of three normative injunctions that states are obliged to respect:

(i) the state is to ensure personal liberty and freedom of religious exercise (i.e., ensure that the

domain of autonomous voluntary action is not interfered with),( ii) maintain equality of

treatment to its citizens irrespective of religion (i.e., ensure that its relation with individual

citizens are conducted in a fair and equal manner) and (iii) deal with religions even handedly

or neutrally. (The domain of religious activity is to be free from the skewing influence of state

support to one religious group or the other.)1. The western part of the world originated the term

Secularism for separation of state and church so that no one interferes in the process and

proceeding of other. They developed two situations in which this separation was possible. The

first was ‘mutual exclusiveness’, in which both state and church excluded each other from their

part mutually, they decided on their own that they will not interfere in any process and system

of other. The second was ‘strict neutrality’ in which state decided to keep neutral behavior for

all the religions and whenever it is necessary to interfere in the religion state will have the

power to enter in it. We in India also developed 2 major interpretations of Secularism. The first

was Nehruvian idea of secularism which propagated the idea of ‘panth nirpekshta’, which

meant that state will have no religion but will respect all the religion. The other major idea was

of Gandhi, he told us about to interpret secularism as ‘sarv dharma - sam bhava’, which meant

an attempt by the state to embrace all religions, treat them equally and have respect for all of

them. The Gandhian idea comprises of pluralism. India adopted the idea of Nehru and in the

44th amendment it was embedded in the Constitution of India. In every village of India, in every

1 John Mathew, Economic and Political Weekly, Vol. 40, No. 18 (Apr. 30 - May 6, 2005), pp. 1901-1906

ISSN 2455-4782

2 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

basti and every mohalla, there are people of different faiths, languages and cultures, who live

together as neighbors. While we are a multi-religious, multilingual, multicultural society, we

are emphatically not a multinational society. We are one nation, one people.2

WHAT IS SECULARISM?

‘If I were a dictator, religion and state would be separate. I swear by my religion. I will die for

it. But it is my personal affair. The state has nothing to do with it. The state would look after

your secular welfare, health, communications, foreign relations, currency and so on, but not

your or my religion. That is everybody's personal concern!’3

History: Secularism, a word that has been the most favorite political word in the modern times.

A word which is as complex as simple it seems. The term ‘secularism’ was first used by the

British writer George Jacob Holyoake in 1851.4 The term was new but the notions on which it

was based were long existed in the societies. He said, ‘Secular knowledge is manifestly that

kind of knowledge which is founded in this life, which relates to the conduct of this life,

conduces to the welfare of this life, and is capable of being tested by the experience of this

life.’5 Secularism actually leads to social democracy. Secularism is often associated with the

Age of Enlightenment in Europe and plays a major role in Western society. The principles, but

not necessarily practices, of separation of church and state in the United States and Laïcité in

France draw heavily on secularism. Secular states also existed in the Islamic world during the

middle Ages.6 In India too, the notions regarding secularism were there from a long time and

different rulers in different ways at different time practices and preached it. The Rock Edicts

XII, of Ashoka says, ‘There should not be honour of one’s own (religious) sect and

condemnation of others without any grounds.’7 8 Ellora cave temple built next to each other

between 5th and 10th centuries, for example, shows a coexistence of religions and a spirit of

2 Aiyar Mani Shankar, India International Centre Quarterly, Vol. 35, No. 2 (AUTUMN 2008), pp. 122-135 3 Gandhi Mohandas 4 Holyoake G.J., (1896), The Origin and Nature of Secularism, London, Watts and Co. p.51 5 Secularism, Catholic Encyclopedia, Newadvent.org 6 Ira M. Lapidus , The Separation of State and Religion in the Development of Early Islamic Society,

International Journal of Middle East Studies 6 (4), p. 363-385, (October 1975). 7 Thomas A.V., Christians in Secular India, Fairleigh Dickinson University Press, ISBN 978-0838610213, pp

26-27 8 Basham A.L., The Wonder that was India, Grove Press, New York, page 53-132, (1959).

ISSN 2455-4782

3 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

acceptance of different faiths.9 10 The famous Mughal king Akbar also made a similar type of

effort when he coined the religion Din-e-Ilahi, which included the good and secular teachings

of different types of religions. Akbar sought to fuse ideas, professed equality between Islam

and other religions of India, forbade forced conversions to Islam, abolished religion-based

discriminatory “jazya” taxes, and welcomed building of Hindu temples.11 12 Also Maharaja

Ranjeet Singh of the Sikh empire of the first half 19th century successfully established a secular

rule in the Punjab. This secular rule allowed members of all races and religions to be respected

and to participate without discrimination in Ranjeet Singh darbar and he had Sikh, a Muslim

and Hindu representatives heading the darbar.13 Secularism by providing social justice also

secures personal rights and helps in bringing equality among the citizens. And that is why many

countries in the world adopted this as their basic structure on which the country runs. Some of

the well-known states that are often considered ‘constitutionally secular’ are USA14, France,

India15, Mexico16, South Korea, and Turkey although none of these nations have identical

forms of governance.

Interpretation: It has been argued that the definition of secularism has frequently been

misinterpreted.17 18 One manifestation of secularism is asserting the right to be free from

religious rule and teachings, or, in a state declared to be neutral on matters of belief, from the

imposition by government of religion or religious practices upon its people. Another

manifestation of secularism is the view that public activities and decisions, especially political

ones, should be uninfluenced by religious beliefs and/or practices.19 In political terms,

secularism is a movement towards the separation of religion and government (often termed the

separation of church and state). This can refer to reducing ties between a government and a

state religion, replacing laws based on scripture (such as the Torah and Sharia law) with civil

9 Ellora Caves UNESCO, World Heritage List (1983). 10 Brockman N., Encyclopedia of sacred places, 2nd Edition; see entries for Ajanta, Ellora and other sacred

places of India, (2011). 11 Mughal Empire, Gale Encyclopedia of World History, Governments, Vol. 1. Detroit, Gale, 2008. 12 Richards John F., The Mughal Empire, New York, Cambridge University Press, 1993. 13 Duggal K.S., Ranjit Singh: A Secular Sikh Sovereign, Abhinav Publications (1989). 14 Mount, Steve. ‘The Constitution of the United State,’ Amendment 1 - Freedom of Religion, Press’. 15 ‘Preamble of the Constitution of India’, Indiacode.nic.in. 16 Article 3 of the 1917 Mexican constitution, and Article 24. Schmitt (1962) and Blancarte (2006) 17 Berlinerblau Jacques, ‘Secularism Is Not Atheism’, Huffington Post, (2012-07-28). 18 ‘What is secularism?’, Concordat Watch, February 2, 2013. 19 ‘Secularism & Secularity: Contemporary International Perspectives’, Edited by Barry A. Kosmin and Ariela

Keysar, Hartford, CT, Institute for the Study of Secularism in Society and Culture (ISSSC), 2007.

ISSN 2455-4782

4 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

laws, and eliminating discrimination on the basis of religion. This is said to add to democracy

by protecting the rights of religious minorities.20 Ahmet Kuru (2009) has shown, the type of

separation at the formative period of the modern state will be very much determined by the

particular configuration of relations between religious and political authorities during the

ancient regime.21

The underlying assumption of this concept is simply that religion and the state function in two

basically different areas of human activity, each with its own objectives and methods. It is not

the function of the state to promote, regulate, direct, or otherwise interfere in religion.

Similarly, political power is outside the scope of religion's legitimate aims. The democratic

state derives its uthority from a secular source (‘the consent of the governed’) and is not

subordinate to ecclesiastical power.22

Common man can understand this term by simple definition that is, ‘a doctrine that rejects

religion and religious considerations’. George Holyoake's 1896 publication English Secularism

defines secularism as-

‘Secularism is a code of duty pertaining to this life, founded on considerations purely human,

and intended mainly for those who find theology indefinite or inadequate, unreliable or

unbelievable. Its essential principles are three: (1) the improvement of this life by material

means. (2) That science is the available Providence of man. (3) That it is good to do good.

Whether there be other good or not, the good of the present life is good, and it is good to seek

that good.’23

All the different definitions by different authors, thinkers, sociologists and philosophers more

or less define secularism as separation of state from the religion. Secularism does point a finger

at the irrational elements of religion. But if religious forces form part of the democratic struggle

they should be welcome.24 Barry Kosmin of the Institute for the Study of Secularism in Society

20 Feldman Noah Divided by God, Farrar, Straus and Giroux, pg. 14 (‘[Legal secularists] claim that separating

religion from the public, governmental sphere is necessary to ensure full inclusion of all citizens.’), (2005). 21 Kuru Ahmet T., Secularism and State Policies toward Religion, New York, Cambridge University Press,

2009. 22 Smith Donald Eugene, India as a secular state, Princeton, New Jersey Princeton University Press, 1963. 23 Holyoake George J., English Secularism, Chicago, The Open Court Publishing Company, (1896). 24 Mohanty Manoranjan, Hegemonic and Democratic, Economic and Political Weekly, Vol. 24, No. 22, pp.

1219-1220, (Jun. 3, 1989).

ISSN 2455-4782

5 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

and Culture breaks modern secularism into two types: hard and soft secularism. According to

Kosmin, ‘the hard secularist considers religious propositions to be epistemologically

illegitimate, warranted by neither reason nor experience.’ However, in the view of soft

secularism, ‘the attainment of absolute truth was impossible and therefore skepticism and

tolerance should be the principle and overriding values in the discussion of science and

religion.25 But in India this term is defined in a different manner. Secularism is a divisive,

politically charged topic in India.26 27 Secularism in India means equal treatment of all religions

by the state. Unlike the Western concept of secularism which envisions a separation of religion

and state, the concept of secularism in India envisions acceptance of religious laws as binding

on the state, and respecting all the religions.28 29 Secularism is political, rather than a religious

doctrine and its purpose is to help level the playing field in order to give a better chance for

human rights.30

SECULARISM IN INDIA

Current Status: The Religious Temperament and outlook of the Indian people may have been

exaggerated by some writers, but it is nonetheless true that religion has been the most powerful

single factor in the development of Indian civilization. Few would challenge Arnold Toynbee’s

characterization of that civilization as one displaying a ‘manifest tendency towards an outlook

that is predominantly religious.’ In the light of this fact, the emergence of India as a secular

state in the mid-twentieth century must be regarded as a significant political, social, and

religious phenomenon.31 With the 42nd Amendment of the Constitution of India enacted in

197632, the Preamble to the Constitution asserted that India is a secular nation. The laws

implicitly require the state and its institutions to recognize and accept all religions, enforce

25 Kosmin, Barry A. ‘Hard and soft secularists and hard and soft secularism: An intellectual and research

challenge 26 Dhume Sadanand , ‘The Trouble with Dr. Zakir Naik’, The Wall Street Journal, (20 June 2010). 27 Thomas A.V., Christians in Secular India, Fairleigh Dickinson University Press, pp 26-27 28 Smith Donald E, India as a Secular State, Princeton University Press, (2011). 29 Larson Gerald James, Religion and Personal Law in Secular India: A Call to Judgment, Indiana University

Press, ISBN 0-253-33990-1, (2001) 30 ‘What is secularism?’. Concordat Watch. February 2, 2013. 31 Supra 22 32 ‘The Constitution (Forty-Second Amendment) Act, 1976’,Government of India.

ISSN 2455-4782

6 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

religious laws instead of parliamentary laws, and respect pluralism.33 34 Secularism in India

does not mean separation of religion from state. Instead, secularism in India means a state that

is neutral to all religious groups. In India religion and state both interfere in the working of

each other regularly and that is why in India secularism is not seen as it is seen in Western

counterpart. The differences have led a number of scholars35 36 37 to declare that India is not a

secular state. It is true that Indian secularists are unable to make a clear demarcation between

the religious and the non-religious in every domain of life - but then, even westerners would

find it difficult to do so in spite of the dominant’ conceptual frame of Christian doctrine [which]

allowed one to identify the boundaries of these two domains’. The reason is not that it is

logically incoherent to separate the religious from the political, but quite simply because there

are different degrees of this separation.38

The secular state is important to the future of Indian democracy itself. It stands or falls as a

basic and inseparable component of the modern liberal democratic state. The secular state is

thus a fundamental aspect of India's democratic experiment, an experiment which might

conceivably break down as much by establishing Hinduism as the state religion as by

eliminating freedom of the press.39

Issues: Secularism as interpreted in India, in which religious laws supersede state laws and the

state is expected to even handedly involve itself in religion, is a matter of controversy.40 41 42

Any attempts and demand by Indian Hindus to a uniform civil code is considered a threat to

their right to religious personal laws by Indian Muslims.43 44 Poorly educated Indian so-called

‘intelligentsia’ identifies Indian ‘secularism’ with anti-Hinduism and even a tacit

33 Christophe Jaffrelot , ‘A skewed secularism?’ . 34 Rajagopalan ‘Secularism in India’, in Editor: William Safran, The Secular and the Sacred - Nation, Religion

and Politics, Chapter 13, (2002). 35 Acevedo DD, Secularism in the Indian Context, Law & Social Inquiry, Volume 38, Issue 1, pp 138-167,

(2013). 36 Madan, T. N., Secularism in Its Place, Journal of Asian Studies, 46 (4), 747–759, (1987) 37 Ibid 38 Nalini Rajan, Economic and Political Weekly, Vol. 38, No. 3 (Jan. 18-24, 2003), pp. 246-248 39 Supra 22 40 Supra 30 41 Duncan Craig, Shah Bano: The Dilemma of Religious Liberty and Sex Equality, Cornell University, Ithaca,

2009. 42 Supra 37 43 Supra 35 44 M.G. Radhakrishnan, Muslim groups want minimum marital age scrapped, India Today (September 22,

2013).

ISSN 2455-4782

7 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

Islamophobia. There are many fields such as acceptable age of marriage for girls, female

circumcision, polygamy, divorce and inheritance in which Indian legal system practice the

religious laws instead of secular laws. These religious laws are majorly of Muslims. But after

all these Indian Muslims continuously criticize the secular laws and want their Sharia laws only

for them. For example Over the last 40 years, All India Muslim Personal Law Board and other

Muslim civil organizations have actively opposed India-wide laws and enforcement action

against child marriages; they have argued that Indian Muslims have a religious right to marry

a girl when her age is below 18, even 12. 45 46 47 In the famous Shah Bano Case48 of 1978, also

it was seen that how Muslim men are against the secular decisions by the court and how they

want to continue with their religious laws. Shah Bano case brought the secularism debate along

with a demand for uniform civil code in India to the forefront.49,50 There will be more

discussion on this case in further chapters.

The controversy is not only related to Hindu and Muslim, but it is also related to the Islamic

feminists, which repeatedly claim51 that Muslim Personal Laws are misinterpretation of Quran

and that Quran has given rights to women but those rights are denied by the male Muslim

community. These issues let social thinkers and philosophers say that India is a failed secular

country. Writing in the Wall Street Journal, Sadanand Dhume criticizes Indian ‘Secularism’ as

a fraud and a failure, since it isn't really ‘secularism’ as it is understood in the western world

(as separation of religion and state) but more along the lines of religious appeasement. He

writes that the flawed understanding of secularism among India's left wing intelligentsia has

led Indian politicians to pander to religious leaders and preachers including Zakir Naik, and

has led India to take a soft stand against Islamic terrorism, religious militancy and communal

disharmony in general.52 Amartya Sen, the Indian Nobel Laureate, suggests53 that secularism

in the political as opposed to ecclesiastical sense requires the separation of the state from any

45 Ibid 46 Haviland Charles, ‘Battle over India's marriage age’, BBC News, (5 September 2002). 47 Mohammed Syed, Wakf board bristles at women panel's advice on Child Marriages, The Times of India,

June 29, 2013. 48 Mohd. Ahmed Khan v. Shah Bano Begum, (1985 SCR (3) 844). 49 Supra 42 50 Mansfield John H., ‘The Personal Laws or a Uniform Civil Code?’, Religion and Law in Independent India

Manohar Press, pp. 139-177, 1993. 51 Vatuk Sylvia, Islamic Feminism in India: Indian Muslim Women Activists and the Reform of Muslim Personal

Law, Modern Asian Studies, Volume 42, Issue 2-3, pp 489-518, March 2008. 52 Supra 27 53 Sen Amartya, The Argumentative Indian: Writings on Indian History, Culture and Identity, (2006).

ISSN 2455-4782

8 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

particular religious order. This, claims Sen, can be interpreted in at least two different ways:

The first view argues the state be equidistant from all religions refusing to take sides and having

a neutral attitude towards them. The second view insists that the state must not have any relation

at all with any religion. In both interpretations, secularism goes against giving any religion a

privileged position in the activities of the state.54

Need of Change: After the political surgery of India into India and Pakistan, India adopted the

concept of secularism as one of its basic principles of governance. Although, India interpreted

the term secularism in a different manner than its Western counterpart, there are two more wide

and major interpretations of secularism within India. The first interpretation was given by

Nehru, and was of panth nirpekshta. This was the combined form of the interpretations made

in west, which were mutual exclusiveness (in which both state and church mutually decide not

to interfere in the working of each other) & strict neutrality(in which state distance itself from

all the religion and treat all of them neutrally ). Nehru interpreted secularism as state having no

official religion (nirpeksha) but respecting all the religion and having full right of interfering

in all the religions if required. To eradicate the then prevailing political disease, communalism,

he suggested the political remedy, secularism, for establishing a healthy state which treats all

religions with equal respect. The western thinkers on secularism expected the state to remain

neutral towards religion. But being an ardent follower of Gautama Buddha and Mahatma

Gandhi, Jawaharlal Nehru believed in simple living and high thinking and advocated state to

promote spiritual happiness of the people. India in its 42nd amendment adopted this secularism

in the basic structure of the constitution.

But there is an urgent need to change this definition of secularism as this definition regardless

of its ideality has failed in the Indian context. India is not secular in any manner rather it is a

pseudo secular state. India preaches secularity but does not practice the same. Its secular

character is a convenient stance to obscure the fact that it favors ideals of the unbeliever and

the religious minorities. In some or other manner religion regularly interfere in the decision

making of the state and influence that. It is practically impossible in India to separate religion

and state.55 What we need is the Gandhian interpretation of the secularism, which is second

54 Merchant Minhaz, Amartya Sen and the ayatollahs of secularism – part 3, The Times of India, 24 July 2013. 55 Bhargava Rajeev, Giving Secularism its Due, Economic and Political Weekly, Vol. 29, No. 28 , pp. 1784-

1791, Jul. 9, 1994.

ISSN 2455-4782

9 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

wide interpretation made within India. The Gandhi’s thought on secularism was of ‘sarv

dharma-sam bhav’, which literally means that state should adopt and accept all the religions

and should treat and respect them equally. The pluralist version of ethical secularism which is

both secular and communitarian is worth exploring and enriching.56 This thought was largely

influenced by the Uniform Civil Code (relation of ‘sarv dharma-sam bhav’ and Uniform civil

code will be discussed in detail in further chapters). The notion of ‘sarv dharma-sam bhav’

presumes that state and religion can’t be separated and religion and state both will interfere in

each other’s matter. So it is better for state to have all the religions. This concept will help the

state to bring equality among the citizens as it treats all the religions equally and will react to

ill practices of all the religions equally. This concept respects plurality in the society. Imagine

a secular India with this concept, there will be very less issues on secular practices as most of

it will be allowed, less fight on what is secular and what not and equality among the consumes

of law. Mahatma Gandhi believed that all deities were manifestations of the One and all

religions led to the same goal.

State will have the same laws but with different point of view. For example, reason for having

Sunday as a holiday in Nehru’s interpretation of secularism will be of because some history

and concept for having one free day in a week but the for the same thing the reason in Gandhian

thought will be that Christians on Sunday offer prayers at the church so they should remain

free on that day.

Gandhi said that his opposition to conversions, especially Christian conversions, originated

from his own position that all religions were fundamentally equal and that equal respect, (Sarva

dharma-sama bhava) not mutual tolerance, was the need of the hour.

Secularism has become possible in India only because of the pluralistic and unorganized nature

of Hinduism57, the religion of the majority in India. However, it has already been shown that

secularism in India is a concept borrowed from the West and that it could never have been

possible if the Colonialists had not contributed towards education, laws, unification, and

reforms in India. It was the religious interference in politics by Hinduism that stipulated the

dharma of Brahmins to be priests, of the Kshatriyas to be warriors (politics), of the Vaishyas

56 Ibid 57 Birodkar Sudheer, Religious Tolerance and Secularism in India

ISSN 2455-4782

10 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

to be traders, and of the Shudras to be servants of all. The State and religion were never,

therefore, separate in Hindu politics.58 And thus the necessity is to transform the mindset of the

majority of people so as to adopt and follow a new interpretation of secularism.

CONSTITUTIONAL DEBATES ON SECULARISM AND JUDGMENTS BY THE

COURT

Constitutional Debates: Secularism, it has been argued, failed to stem the spread of

communalism in India, because its marginalizing and contempt of religion bred a backlash on

which communalism thrived.59 When the constitution was discussed in the Constituent

Assembly on 17 Oct 1949, there were many issues regarding secularism. Lots of debates

happened before reaching to a particular decision. Pandit Malaviya brought in notice that it was

not anti-secular for the preamble to begin with expressions such as "By the grace of the

Supreme Being, lord of the universe, called by different names by different peoples of the

world".60 Shibban lal Saksena also pointed out that Irish Constitution also begin with the name

of lord.61 There was lot of opposition against this notion as people argued that to preach any

religion is a matter of individual choice and collective will should not be imposed in this matter.

Another interesting objection was raised by Purnima Banerji who said that references to god

should not be put into the constitution since that would make the sacred depend on the vagaries

of democratic voting. She requested, "Not to put us to the embarrassment of having to vote

upon god".62 Brajeshwar Prasad from Bihar at first brought the notice of Constituent Assembly

on the topic of secular nation. But most members ridiculed63 Brajeshwar Prasad's attempt at

making the Constitution a socialist instead of a liberal democratic document. But when

Preamble was discussed in the last meeting of the constituent assembly and it was than when

members realized that secular state is required. Most shared an understanding of history in

which the "movement for the separation of religion and state was irrevocably a part of the

project for the democratization of the latter.64 Since independent India was to be a democracy,

secularism was a fait accompli: ‘it is essential for the proper functioning of democracy that

58Ibid 59 Jha Shefali, Secularism in the Constituent Assembly Debates, 1946-1950, Economic and Political Weekly,

Vol. 37, No. 30, pp. 3175-3180, Jul. 27 - Aug. 2, 2002. 60 Constituent Assembly Debates - Vol X, p 446 61 Constituent Assembly Debates - Vol X, p 448 62 Ibid 63 Supra 60 64 Aijaz Ahmad, Lineages of the Present, Tulika, New Delhi. 1996, p 313.

ISSN 2455-4782

11 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

communalism should be eliminated from Indian life’.65 But the question remained as to the kind

of secularism to be established by Indians faced with the problem of creating a secular state

in a religious society.66 Many politicians and makers of the Constitution gave arguments in the

favor of a secular nation. Radhakrishnan's speech on the Objectives Resolution on December

13, 1946 asserted that “nationalism, not religion, is the basis of modern life. ...the days of

religious states are over. These are the days of national-ism”.67 After all these also makers of

the constitution believed in the notion of spirituality. They clearly understood that secularism

cannot be read as anti-religion but with religion. This is the reason why they inserted Articles

25, 26, 27 and 28 in the fundamental rights of India. This implied an understanding of

secularism in which "religion is a private affair between man and his god. It has no concern

with anyone else in the world".68 Jaya Prakash Narayan held that the "secularization of general

education... necessary for the growth of a national outlook and unity".69 Mahboob Ali Baig

Bahadur said:

People seem to think that under a secular state, there must be a common law observed by its

citizens in all matters including matters of their daily life, their language, their culture, and

their personal laws. This is not the correct way to look at the secular state. In a secular state,

citizens belonging to different communities must have the freedom to practice their own

religion, observe their own life and their personal laws should be applied to them.70

This type of members was against the notion of uniform civil code. But as discussed earlier in

the chapter that most of the members ideologically accepted the concept of secularism, this led

Indian Constitution to adopt secularism in its basic structure by 42nd amendment.

Supreme Court Judgments: In the absence of any rigid positivist demarcation of the spheres

of the sacred and secular, the court has remarkable autonomy in the interpretation of secularism.

It decides what is secular and what is not, what is religious and what is not, thereby regulating

65 B Shiva Rao, The Framing of India's Constitution: Select Documents, Vol IV, Government of India Press,

Nasik, p 593, 1968. 66 Jawaharlal Nehru, cited in T N Madan , Modern Myths Locked Minds, OUP, Delhi, p 245, 1997. 67 B Shiva Rao, The Framing of India's Constitution: Select Documents , Vol II, Government of India Press,

Nasik, p 16 68 Constituent Assembly Debates - Vol VII, p 819 69 B Shiva Rao, The Framing of India's Constitution - A Study, Government of India 2 Press, Nasik,1 968, p 276 70 Constituent Assembly Debates - Vol VII, p 544

ISSN 2455-4782

12 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

their meaning and thus the personal realm.71 While the Supreme Court has increasingly taken

upon itself the task of setting the policy, especially in its activist role, it needs to promote a

vision of secularism that is consistent with a plural multicultural setting. While in some cases

the court has come out strongly on the issue, declaring secularism as an un-amendable feature

of the Indian Constitution72, in some others the court's functional definition of secularism is

susceptible to the interests of the majority impinging on the rights of minority communities,

and in some others it privileges minorities. This results in 'a weak' secularism that is susceptible

to the interests of the majority as the secular agenda toes a path of uniformity and oneness.

Here I will discuss few cases and the judgments given by the apex court of the country in them

and how they helped in giving image to Indian secularism.

In Keshavanand Bharati v. State of Kerala73, the 13 judge constitutional bench, in no uncertain

terms declared secularism to be the fundamental law of the land. C J Sikri, ‘enumerated secular

character of the Constitution’ as one of the basic features of the Constitution. This judgment

declared secularism to be an unamendable feature of the Constitution, though it was silent on

the meaning of secularism in the Indian context.

In Ziyauddin Burhanuddin Bukhari v. Briujmohan Ram Das Mehra74, Justice Beg said our

Constitution makers certainly intended to set up a secular democracy, the building spirit of

which is summed up by the objectives set forth in it. The court set the role of the state as neutral

or impartial in extending its benefits to citizens of all castes and creeds and made it the state's

duty to ensure through its laws that disabilities are not imposed based on persons practicing or

professing any particular religion.75

The case of Mohd. Ahmed Khan v. Shah Bano Begum76 commonly referred as Shah Bano

case is one of the most discussed and controversial case related to Indian secularism. This

particular case is a black dot on Indian secularism and its secular decisions. It triggered

controversy about the extent of having different civil codes for different religions, especially

71 Padhy Sanghamitra, Secularism and Justice: A Review of Indian Supreme Court Judgments, Economic and

Political Weekly, Vol. 39, No. 46/47, pp. 5027-5032, (Nov. 20-26, 2004). 72 Ibid 73 Keshavanand Bharati v. State of Kerala, 1973 (4) SCC225. 74 Ziyauddin Burhanuddin Bukhari v . Brijmohan Ram Das Mehra, 1976 2 SCC 17. 75 Supra 72 76 (1985 SCR (3) 844).

ISSN 2455-4782

13 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

for Muslims in India.77 78 This decision of the parliament in this case shows that how India has

failed to follow the notions of secularism. When the Indian parliament reversed the judgment

of the Supreme Court under Islamic pressure79 80 81 82 (male Muslims pressure), it gave a very

bad picture of condition of secularism. The Shah Bano case had once again spurred the debate

on the Uniform Civil Code in India. The pressure exerted by orthodox Muslims caused

women's organizations and secularists to cave in.83 84 Lawyer and former law minister of India,

Ram Jethmalani has termed the act as ‘retrogressive obscurantism for short-term minority

populism’.85 86

Rajesh Himmatlal Solanki V. Union of India, also known as the bhumi poojan case, is

regarded as one of the most important judgment by the SC in interpretation of Secularism in

India. It was in this case where the apex court of the country clarified that by secularism Indian

constitution does not mean ‘anti - God’. There was a wide interpretation given by the court that

what it is secular and what is anti-secular. In its interpretation SC said that mere performance

of the sacred practices related to a particular religion in public can’t be regarded as anti-secular.

It said that religious practices which have intention of welfare to all and hurt to none can be

considered as secular. The SC said, “Welfare of the people is the ultimate goal of all laws and

state action, and above the constitution”. It clarified that there is a difference between dharma

and religion. Dharma cannot be considered a mere hindi translation of the word religion,

actually the notion of dharma is bigger and larger than religion. Dharma is sanatan. The

concept of vasudev kutmbkum and sarve jana sukhino bhavantu as taught by the Hindu religion

can be considered as secular because secularism in India doesn’t mean that state will have no

part of religion but that it will respect all the religion and will allow religious practices which

are meant for the welfare of the people. In this HC of Gujarat has declared that the “offering of

the prayer to the earth at the time of foundation laying ceremony cannot be termed as non-

77 Jindal T.P. , p. 57, 1995. 78 Flashback to Shah Bano case as Muslim woman wins alimony battle, Indian Express, 2009-09-23. 79 Benhabib Seyla , p. 91-92, 2002. 80 The Muslims of India, a documentary record , p. 216-224, 2003. 81 A brief history of India, p. 280-281, 2006. 82The Shah Bano legacy, The Hindu, 08-10-2003 83 On violence: a reader, p. 262-265, 2007. 84 The politics of autonomy, Indian experiences, p. 60-63, 2005. 85 "Cementing of dynastic democracy", The Sunday guardian, 2012-04-29. 86 "What If Rajiv Hadn't Caved In To The Zealots?", Outlook India, 2004-08-23.

ISSN 2455-4782

14 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

secular action if ‘manav dharma’ is to be understood in its real sense in furtherance to the

principles of secularism to be observed by our nation”.87

In S.R. Bommai v. UOI88, the apex court observed that secularism in the constitution is not

anti-God & it is sometimes believed to be a stay in a free society. Secularism in the Indian

context bears positive and affirmative emphasis. SC interpreted that state is neither pro

particular religion nor anti particular religion. It stands aloof, in other words maintains

neutrality in matters of religion and provides equal protection to all religions subject to

regulation and actively acts on a secular part. The S.R. Bommai judgment declared secularism

to be a basic feature of the polity and defined it in terms of tolerance, accommodation and

separated the religious realm from the political.

Further, in a judgment on the NCERT textbook case89, the Supreme Court decreed that all faiths

are equal. The majority view was that the essence of every religion is common; only the

practice differs.

The court's jurisdiction to interpret the Constitution has given it considerable authority. In the

absence of any rigid positivist demarcation of the spheres of the secured and secular the court

has remarkable autonomy. Religion and secularism in India are given categories. The court

decides, and more so in its activist phase, what is secular and what is not, what is religious and

what is not; thereby regulating their meaning and thus the personal realm.90

UNIFORM CIVIL CODE

Uniform Civil Code (hereinafter referred to as ‘UCC’) basically means a common set of laws

for the people of India replacing their personal laws concerning matters of marriage,

inheritance, adoption, divorce, maintenance, etc. As of now the personal laws of an individual

are followed. However, there is a growing demand for the introduction of a UCC throughout

the territory of India. Living together in harmony and respecting each other’s differences was

87 Thelawyersextravision.blogspot.in/2011/03/new-aspects-of-secularism-html 88 (1994) 3 SCC 1 89 Mehta Pratap Bhanu, Living with Difference, Hindu, September, l4, 2002. 90 Supra 72

ISSN 2455-4782

15 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

something that was found in ancient India. However, today the situation is different. A UCC

is needed but enacting it is very difficult as each caste has its own customs and traditions.91

The constitution of India came into force in 1950. Since then, article 44 has been gathering dust

with no government at the centre ever having any guts and wisdom to touch it.92

The need for a UCC was felt as soon as the constitution came into force. Even after 64 years,

this directive principle could not be implemented. The UCC also aims to overcome the

particularistic and often reactionary aspects of personal laws of various religious communities.

The objective thus is also being a social reform and uplifting the status of women.93 The UCC

is eminently desirable in the interest of modernization of society and for a common system of

Justice for all.

In the recent times India has witnessed two major cases through which Supreme Court tried to

imbibe the notion of UCC so as to end the practices of discrimination in some religious

practices which are followed in India. Here, the cases which are being referred to are Triple

Talaq Judgment94 and Sabarimala Judgment95. The judicial act of banning the Triple Talaq was

one long way in ensuring the respectable status of Muslim women and to protect them at the

hands of discriminatory patriarchal practice. Sabarimala case although created a huge socio-

political storm, at its base it was a religious issue dealing with one of the most important subject

that whether Constitutional Rights should be above in hierarchy than personal laws as this

principle is of utmost importance to secure the secular structure of India. In Sabarimala case,

the Apex Court again hammered the patriarchal tradition of not giving entry to women at

Sabarimala Temple of Lord Ayappa. The dissent and protests that followed after the Supreme

Court Judgments in both the cases were example that how religions are still reluctant in

modernizing themselves so as to bring women at equal footing with men. But, however it could

be said that the Court of Law is pushing India towards the goal of achieving Uniform Civil

Code.

People arguing against the UCC in India mainly have two arguments. The first is of

multiculturalism. It is argued that each community is different and has the right to be different.

91 Ahmed Shabbeer, Uniform Civil Code (Article 44 of the Constitution) A Dead Letter, The Indian Journal of

Political Science, Vol. LXVII, No.3, July-Sept., 2006. 92 Ibid 93 Ibid 94Shayara Bano vs. Union of India & Ors. 95 Indian Young Lawyers Association vs. The State of Kerala (2019) 11 SCC 1

ISSN 2455-4782

16 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

The communities have right to govern their social-cultural aspects and evolve them without

any outside intervention. Therefore, it is wrong to create a UCC as such an act will be against

multiculturalism and liberty of culture which is taken as the essence of India. But this argument

is not only flawed on many accounts but a dangerous as well. First of all it tends to privilege

communal identity over the individual liberty and choice. This argument is also flawed when

it favors diversity for the sake of diversity. Diversity is good but advocating diversity for the

sake of diversity often leads to a moral confusion. And multiculturalism today has become a

camouflage for moral relativism.

The second defense in the service of personal laws is that of secularism. They argue that secular

India must not interfere in the religious matters of various communities. However, a reverse

point can be made as well i.e. why should a secular India give such sweeping exemptions based

on religion? In this regard Dr. Ambedkar said96:

I personally do not understand why religion should be given this vast, expansive jurisdiction,

so as to cover the whole of life and to prevent the legislature from encroaching upon the field.

By instituting religion based personal laws state discriminates against individuals on the basis

of religion, which is against to its basic doctrine.

A constitution bench speaking through former Chief Justice V.N. Khare, Justice S.B. Sinha

and Justice A.R. Lakshmanan, suggested in the famous Sarla Mudgal Case97 that parliament

should frame a common civil code for the country as that would help the cause of national

integration. But Muslims are always against the notion of UCC. The All India Muslim Personal

Law Board (AIMPLB) has rejected outright the SC suggestions on enforcement of a UCC,

saying such a law could not be imposed on any particular religion.98 The main reason for this

opposition is fear of Muslim male community from the equal rights given to women, if UCC

establishes. The tragedy is that a secular country like India is lagging behind in according red

carpet welcome to article 44.

Secularism can be practiced at a better rate if UCC is made available to the consumers of the

Indian Constitution. We can imagine that what could be the outcomes of Shah Bano case if

UCC was practiced at that time. Number of disputes can be resolved if UCC has been given

96 Constituent Assembly Debates , Vol VII, p 558 97 1995 3 SCC 635 98 Supra 93

ISSN 2455-4782

17 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

effect. The interpretation given by Gandhi on secularism i.e. sarv dharma-sam bhav is also

influenced by a UCC. This concept favors a common law for all the citizens of India so that

religious equality can be achieved with plurality.

The UCC if enacted will deal with the personal laws of all the religious communities relating

to the matters which are all secular in character of Indian state and to enhance fraternity of

unity among citizens by providing them with a set of personal laws which incorporates the

basic values of humanism.

CONCLUSION

In every village of India, in every basti and every mohalla, there are people of different faiths,

languages and cultures, who live together as neighbors. While we are a multi-religious,

multilingual, multicultural society, we are emphatically not a multinational society. We are one

nation, one people. Furthermore, secularism and our nationhood are inseparable. Secularism is

the bedrock of our nationhood. It is the sine qua non of our existence. A secular India alone is

an India that can survive. And perhaps an India that is not secular does not deserve to survive.99

India modified the term secularism according to its own use but this act created many ethnic

problems in India. What we require is the re-interpretation of the term secularism, so that our

current mockery at the world’s stage can be stopped. We require infusion of pluralism into the

secularism. We require sarv dharma-sam bhav instead of panth nirpekshta. But as we know in

India we will always find a strong opposition for all the good ideas, in this situation what we

can do is to follow the path of ‘principled distance’100 as an alternative. In this concept, state

will have a ‘principled distance’ from all the religion and will treat them equally, which is far

better than present panth nirpekshta. We require a Uniform Civil Code for whole India so that

equality among all the religions can be achieved and secularism can be more imbibed into

people. This UCC will eliminate all types of discrimination, state does against religion. It is

when religion is used to denigrate the beliefs of others, to blacken the face of an entire

community, above all, when religion is used to provoke violence, verbally or physically,

against others, that secularism finds itself pitted not against religion, but against such

99 Supra 2 100 Bhargava Rajeev, Outline of a Political Theory of the Indian Constitution

ISSN 2455-4782

18 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 7 ISSUE 5

manifestation of religion.101 Secularism is not about giving primacy to my beliefs. It is about

respecting the right of others to hold beliefs that I do not hold.

101 Supra 2