Freedom of religion

This article is written by Sujitha S, pursuing law at the School of Excellence in Law, Chennai. This article tries to explain the concept of equality of religion in the light of a Uniform Civil Code as envisioned in Article 44 of the Indian Constitution. It further discusses the debate on UCC and its relevance in the Indian judiciary.

It has been published by Rachit Garg.

Introduction

India is a large country with people from many different religions, castes, creeds, and socio-cultural backgrounds. With respect to religions, India is a secular country where every individual has the freedom to practice his or her religion. Despite the fact that secularism is the foundation of the Indian Constitution, its applicability in contemporary India is debatable since religion is increasingly used in the social construction of ethnic and communal identity, resulting in political mobilisation. In India, caste, religion, and regional divides are still widespread, and they play a vital role in forming individual and collective views. While secularism has been an important part of India’s democracy for over seventy years, its restrictions and implementation remain controversial.

The concepts of unity and equality have always been central to India’s identity. Personal laws, on the other hand, have been causing splits in the country since colonial times. This necessitates the adoption of a Uniform Civil Code (UCC), which has always been faced with opposition since many people believe it is a direct attack on their faith and religious customs. The argument over the UCC began with the drafting of the Constitution and has been maintained by both the courts and the political classes. With current concerns on the hijab, the subject has been thrust to the forefront of public discourse once again. This has also coincided with the Law Commission asking for public input on the UCC in October 2016. However, before delving into the complexity of the Uniform Civil Code in the context of India’s multi-cultural politics, we must first grasp its constitutional and judicial aspects.

The Indian Constitution and religion

The right to freedom of religion is one of the rights guaranteed by the Indian Constitution. Every citizen of India, being in a secular state, has the right to religious freedom, or the freedom to practice any faith. Given the diversity of religions prevalent in India, the Constitution ensures that every person has the freedom to practice the religion of their choice. Every citizen has the freedom to peacefully practise and propagate their faith under this basic right. And if there is any religious intolerance in India, it is the responsibility of the Indian Government to put a stop to it and take strong measures against it. Articles 25, 26, 27, and 28 of the Constitution clearly define the right to freedom of religion.

Article 25 of the Indian Constitution : religious freedom to all citizens

Article 25 of the Indian Constitution provides religious freedom to all citizens. It states that, subject to public order, morality, health, and other conditions, all individuals in India have the equal right to freedom of religion and the freedom to profess, practice, and spread religion.

It further states that this Article will not conflict with any existing law and will not preclude the state from enacting legislation related to :

  • Any commercial, financial, political, or secular action related to religious practice
  • Providing social welfare and reforming the system.
  • The establishment of public Hindu religious institutions for Hindus of all classes and sectors.

In Saifuddin Saheb v. State of Bombay (1962), the Bombay Prevention of Excommunication Act, 1949 was passed in this case by the State of Bombay. Section 3 of this Act makes it illegal to excommunicate members of any group. The petitioner (the religious leader of the Dawoodi-Bohra Community) challenged the Act on the grounds that it infringed their fundamental rights, which are protected under Articles 25 and 26 of the Constitution. The Court found that the head’s power of ex-communication was central to the community’s activities and that the Act obviously infringed the fundamental rights guaranteed by Article 25(1) of the Constitution. Thus, the Supreme Court ruled that the Act was unconstitutional because it violated Articles 25 and 26.

Article 26 of the Indian Constitution : rights of religious groups or denomination

Every religious group or section of a religious denomination has the right under Article 26  to :

  • Establishing and maintaining religious and philanthropic organisations;
  • Managing its religion-related affairs;
  • Purchasing and owning real estate (both mobile and immovable);
  • Following the law when it comes to property management.

In the case of the State of Rajasthan & Ors  v. Sajjanlal Panjawat & Ors (1973), the Supreme Court held that while the state has the power to administer or regulate a trust’s assets, it cannot take away the right to administer those assets by law and vest it in another authority that does not even belong to the denomination. This would undoubtedly be a violation of the Constitution’s Article 26(d).

Article 27 of the Indian Constitution

Article 27 of the Constitution prohibits anybody from being forced to pay any taxes that are intended to cover the costs of promoting or maintaining a religion or religious denomination.

In the case of Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), the Madras legislature adopted the Madras Hindu Religious and Charitable Endowment Act, 1951, and contributions were charged under the Act. The petitioner argued that the contributions charged are taxes, not fees, and that the State of Madras lacks the authority to establish such a regulation. The Supreme Court ruled that, while the donation was a tax, its purpose was to ensure the effective management of the religious organisation.

Article 28 of the Indian Constitution

Article 28 prohibits : 

  • Offering religious instruction in any educational institution supported entirely by state funds.
  • The foregoing shall not apply to educational institutions managed by states but supported by an endowment or trust that requires religious instruction to be imparted in such institutions.
  • Anyone attending a state-recognised or state-funded educational institution is not forced to participate in religious instruction or attend any workshop held on the institution’s or premises’ grounds.

In D.A.V. College Etc v. State of Punjab & Ors (1971), Section 4 of the Guru Nanak University (Amritsar) Act, 1969, stated that the State should establish accommodations for the study of Guru Nanak Devji’s life and teachings. This statement was challenged as being in violation of Article 28 of the Constitution. The issue was that the Guru Nanak University is entirely supported by state funds, and therefore, Section 4 violates Article 28. The Court disagreed, stating that Section 4 allows for the intellectual study of Guru Nanak’s life and teachings, which cannot be termed religious instruction.

Uniform Civil Code

Uniform Civil Code is an Indian proposal to create and implement secular personal laws that apply to all people equally, regardless of religion. Marriage, divorce, inheritance, adoption, and maintenance are all covered under personal law, which is distinct from public law.

Hindus, for example, are currently monitored by the Hindu Code, which comprises the Hindu Marriage Act (1955), Hindu Succession Act (1956), and Hindu Adoption and Maintenance Act (1956), all of which were established between 1955 and 1956. The Muslim community, on the other hand, adopts the Shariat Act (1937) as its own law. When it comes to marriage and other related concerns, the Christian Community adheres to the Christian Marriage Act (1872). The fact that each person is ruled by a separate set of rules demonstrates the disparity in treatment provided to different groups of people based on their unique religious laws. When it comes to the distribution of justice in social and civil matters, this results in different types of judgments being given to different persons.

Article 44 of the Constitution’s Directive Principles says that the state should attempt to create for its citizens a Uniform Civil Code (UCC) throughout the territory of India. Personal laws in India vary considerably in their roots and traditions, making it tough and difficult to bring people together to unite them in a country governed by laws of several religions. However, DPSPs (Directive Principles of State Policy) are not enforceable by any court, according to Article 37 of the Constitution. Its purpose is to replace the present system of fragmented personal rules that govern interpersonal relationships and associated concerns within religious groups. In addition, Goa is the only Indian State with a Uniform Civil Code, and the Special Marriage Act (1954) permits any citizen to marry beyond the scope of any special religious personal law.

Judicial perception on the implementation of the UCC

Shah Bano case (1985)

In Mohd. Ahmed Khan v. Shah Bano Begum and others (1985), after Shah Bano’s husband declared talaq against her, the Supreme Court addressed the question of maintenance under Section 125 of the Code of Criminal Procedure, 1973. Chief Justice YV Chandrachud said in his decision that Parliament should define the outlines of a Uniform Civil Code since it is a tool that promotes national peace and equality before the law. Despite this, the government ignored the problem and in 1986 passed the Muslim Women’s Protection of Rights on Divorce Act (1986).

Sarla Mudgal case (1995)

The Supreme Court in Sarla Mudgal, President,.. v. Union of India (1995) advised the government to incorporate a Uniform Civil Law based on the Hindu Code to protect the abused and achieve national unity. The argument this time was to prevent Hindu males from converting to Islam just for the purpose of marrying for the second time. While unified legislation is desired, Justice Sahai’s concurring opinion in the Sarla Mudgal case and the verdict in Pannalal Bansilal Pitti and Others v. State of Andhra Pradesh and Others (1996) both acknowledge that it cannot be enforced in one fell swoop, and that understanding must be formed on the issue.

Lily Thomas case (2000)

In Lily Thomas v. Union of India (2000), Lily had petitioned the Supreme Court on the validity of an earlier marriage in which a non-Muslim is converted to the ‘Muslim’ religion without any true change or belief and without divorcing the first wife. In this case, the Supreme Court emphasised the importance of UCC in terms of succession.

Abc v. The State (NCT of Delhi) (2015)

In Abc v. The State (NCT of Delhi) (2015), the Supreme Court ruled that a Christian single mother may petition for sole guardianship of her child without the natural father’s consent under the Guardian and Wards Act (1890), which did not recognize Christian single mothers’ rights. The Court noted the complexity imposed by the lack of Uniform Civil law in this context.

Satprakash Meena v. Alka Meena (2021)

In the case of Satprakash Meena v. Alka Meena (2021), a single judge bench led by Hon’ble Justice Prathiba M. Singh dealt with a question in which a petition was filed with an argument as to the applicability of the Hindu Marriage Act, 1955, in respect of the parties who belong to the Meena Community, given the exclusion under Section 2(2) of the HMA, 1955. Justice Singh emphasised the need for the Uniform Civil Code (UCC) to become a reality so that young people in modern India from diverse groups, tribes, castes, or religions who marry, should not be forced to deal with complications originating from conflicting personal laws. The Court stated that the state’s objective in Article 44 of the Constitution to establish a Uniform Civil Code need not remain a mere hope. She went on to say that the Supreme Court has often emphasised the necessity for a Uniform Civil Code, as envisioned under Article 44.

Historical perspective of UCC

  • Historically, analogous codes created in European countries during the 19th century and early 20th century impacted the concept of UCC, particularly the French code of 1804 that abolished all kinds of customary or statute law and replaced them with a Uniform Code.
  • On a wider scale, it was part of a huge colonial attempt to ‘civilise’ the country after the West. However, the British were warned by the First War of Indian Independence in 1857 not to change India’s social fabric and to preserve the personal norms governing marriage, divorce, maintenance, adoption, and succession.
  • Following independence, the UCC was accommodated as a guiding principle against the backdrop of partition, which resulted in communal conflict and resistance to the removal of personal laws, as noted above.
  • Despite the fact that the framers of the Constitution sought to introduce a Hindu Code Bill in Parliament that featured progressive features like women’s equal inheritance rights, it never saw the light of day.
  • The discriminatory sections affecting property rights in the Hindu Succession Act, 1956 were eliminated on September 5, 2005, when the Hindu Succession (Amendment) Act, 2005 got assent from the President of India. In this regard, the Supreme Court has emphasised the necessity of having a UCC in various instances that need to be examined, ranging from the Shah Bano Begum case to the present issue of hijab.

Impact of the 21st Law Commission’s consultation paper on ‘Reform of family law’

In June 2016, the Law Commission of India examined specific challenges connected to the Uniform Civil Code. In 2018, the 21st Law Commission published a consultation document on ‘Reform of Family Law’ on its website for discussion. According to the Law Commission’s consultation paper, a Uniform Civil Code is not essential, nor is it desirable at this point in the country. Instead, the Commission recommended that specific marriage and divorce procedures be universally acknowledged in all personal laws. The Delhi High Court had requested the Centre’s response to BJP leader and lawyer Ashwini Kumar Upadhyay’s petition in May 2019, which sought the establishment of a judicial commission to propose the Universal Civil Code in order to promote national integration, gender justice and equality, and women’s dignity. India urgently needs a Uniform Civil Code, according to four other petitions before the court. The petitions argue that the UCC would replace personal laws, which are based on the scriptures and practices of diverse religions, with a single set of rules regulating all citizens of the country.

Debate on UCC

The Law Commission of India points out that the debates in the Constituent Assembly show a lack of unanimity on what a future Uniform Civil Code would include. While some believed the UCC would survive with personal law systems, others believed it would completely replace them. Others were concerned that the UCC would restrict religious freedom. Owing to this ambiguity, it was incorporated in the Directive Principles of State Policy rather than the Constitution’s fundamental rights chapter.

Reasons for its imminent implementation

Progressive in nature

Though some legal experts think progressive legislation is desirable, an appropriate environment must be created in which all sections of society feel safe enough to get together and select the progressive decision in the light of their own personal laws. However, an example of Hindu law can be used to answer this question. There was a lot of outrage when the Hindu Code Bill was announced, which encompasses Buddhists, Sikhs, Jains, and various Hindu religious denominations. Dr. Ambedkar, the then-Minister of Law, had stated that a codified law was required for India’s unity. In a similar vein, the UCC may be introduced, which would cover all major and minor religions practised in India, and everyone visiting India would be bound by it.

Gender equality and justice

Gender justice and equality, as provided by Articles 14 and 15 of the Constitution, and the dignity of women, as guaranteed by Article 21, could not be achieved without Article 44 of the Constitution being implemented. Every person in India is equal in the eyes of the law and the courts, according to Article 14 of the Indian Constitution. In India, however, we have personal laws based on different religions. A Muslim, for example, might marry several times without being penalised. But in the case of a Hindu, Christian, or Sikh, the court will prosecute him, which is contrary to Article 14 of the Constitution. If we desire equality, the rules governing marriage, adoption, divorce, inheritance, family, and land should all be the same. 

Reduction in religious conflicts

There are numerous discrepancies in the legal provisions with respect to personal laws, in the light of gender equality and adjudication of justice. The probability of misusing personal laws is also witnessed in a number of cases. Though people are well educated about the values of every faith, there arise unnecessary issues on these grounds which can be avoided by the implementation of the Uniform Civil Code.

Protection of vulnerable groups

Many provisions of personal laws lack in protecting children and women from prejudices, behind them. Religious laws tend to be significantly gender-biased, which is one reason why personal laws based on religion are not accepted. Over time, most major faiths acquired a prejudice towards women, seeing them as inferior. Eve was allegedly presumed to be the source of all evil in Christianity. Sati was practised in some Hindu communities for centuries until it was outlawed by the British. Dowry and mistreatment of widows are still prevalent in many parts of the world. The Triple Talaq breaches Muslim women’s rights, demonstrating injustice to Muslim women. To enable equal rights for all vulnerable groups, UCC implementation is efficient.

Reduction of burden on courts

According to the official website of e-courts, there are 5.72 million cases outstanding in high courts and 40.99 million cases pending in district courts, resulting in a delay in rendering justice. There will be less ambiguity, and less pressure on the judiciary, and matters will be resolved promptly and without delay, if there is a law or regulation for everybody. Justice will be served equitably to all people, and personal law litigation will be reduced.

Arguments against the implementation of UCC

Preservation of secularism

Expecting people from different cultures and traditions to follow the same rules based on a consistent system in India, which is a country with many languages and traditions, is a bit unrealistic. The argument is based on India’s pride in its variety while maintaining its integrity. We must accept each minority community’s particular decisions and rules in order to preserve diversity.

The impracticality of this problem stems from the fact that 14.2 per cent of Indians are Muslims, and every attempt to impose the UCC has been met with fierce resistance and condemnation from them. As a result, imposing majority Hindu ideas on them is an injustice. The founding fathers promised a secular India when they drafted the Constitution, and that is exactly what the minority wants. The government must consider the feelings of the minority community while deciding whether or not to violate the personal law.

Violation of personal laws

The Muslim community is outspoken in its opposition to the government’s initiative, claiming that the UCC will breach their personal laws significantly, causing irrevocable harm to their faith and its rules. The entire concept of merging all personal laws into a universal code will impinge on the elements of personal laws of most minority religions, according to a major argument against the implementation of the Uniform Civil Code.

Minority rights

In order to formulate a common code in a country full of diversity, some minority rights will be compromised evidently. This explains why several minority groups tend to oppose the adoption of the UCC. It is vital for the present administration to design a code that is acceptable to all communities in order to completely implement a functioning Uniform Civil Code. But this is an impossible task that should be left to the imagination. No community is ready for any interference with their own laws, no matter how little, and the government intends to abolish it entirely.

Complexity in implementation

Even though decades have passed since it was initially proposed, the adoption of the UCC would attempt to bring about a long-overdue reform and put an end to a great deal of uncertainty. However, because of some of the disadvantages it presents, it is challenging to execute it.

Critical analysis of UCC

India is a republic that is sovereign, socialist, secular, and democratic. This indicates that the government does not have its own religion. As a result, opponents have construed the UCC to indicate a single state religion, which goes against the spirit of the Preamble and the above-mentioned religious freedom. The ideology of secularism, as practised in other countries like America and Europe, does not involve the intervention of the state in religious affairs. It is important to recognise that these countries have gone through a unique evolutionary process involving renaissance, reconstruction, and enlightenment.

India, on the other hand, has not gone through these stages, and thus it is the role of the state to intervene in religious affairs in order to eliminate obstructions to state administration. There is a concept known as ‘positive secularism’ in India. The state bears the responsibility for ensuring that religion does not obstruct the Nation’s overall growth. As a result, the UCC is neither anti-secular nor will breach Articles 25, 26. Article 44 is founded on the idea that in a civilised society, there is no need for a relationship between religious and personal laws. Marriage, succession and similar issues are secular in nature. Hence, the law can govern them. According to Romila Thapar, a renowned historian, “Religion impinges on every human rights in the civil law — whether its birth, death, marriage, divorce, — the religions have laws on all of these,” India still lacks a Uniform Civil Code because, if one is created, a single set of rules will apply to all residents, regardless of religion, in areas such as marriage, divorce, adoption, property, maintenance, and inheritance, among others.

Global scenario

  • The Personal Property Security  Act (PPSA) (2009) has been established in Canada. Except for Quebec, all provinces have embraced the PPSA, which is based on the UCC’s values.
  • France’s Civil Code is one of the most well-known in the world. In 1804, the Napoleon Civil Code superseded over 300 local civil law codes in France. It supplemented both customary and existing law, and it is applied to a wide range of topics including property, commodities, usufruct easements, succession, wills, gifts, contracts, and quasi-contracts. The French Code attempted to strike a balance between rights and equality, as well as customs and legal obligations.
  • There are numerous levels of legislation in the United States that apply independently to the country, the state, and to agencies and cities, where the issue of diversity is more in line with Indian situations. States are separate legal bodies with their own Supreme Courts that follow their own set of rules and regulations. Despite the fact that there are common principles that regulate these civil laws in the United States in a uniform manner across the country. The Federal Supreme Court only hears cases that are of a federal nature or that impact the entire country, such as security, taxes, and basic legal concerns.
  • Countries like Saudi Arabia, Turkey, Pakistan, Egypt, Malaysia, Nigeria and others have a blend of civil laws based on the traditional Sharia law.

The way forward

The unification of personal laws is a complicated process owing to religious diversities. The first step should be to identify all personal laws, classify them according to religion, and then identify areas of personal law that have yet to be codified. In addition, there is a need to identify the inconsistencies in current legislation and provide alternatives to eliminate those inconsistencies. 

Due to the sheer qualities it incorporates, the Supreme Court of India has referred to Goa’s UCC as a ‘shining example’. Compulsory marriage registration, prohibition of polygamy or bigamy, uniform age of marriage for men and women, consent of both men and women to execute a marriage, consent of both men and women to achieve legal separation, and other considerations are all part of the UCC in Goa. These characteristics can be used as a foundation for adopting UCC on a widespread scale.

No empire is built overnight, and no legal process can be developed overnight by simply adopting the pending UCC bill in India’s Parliament. The following are a few recommendations in this regard:

  • Both the government and the people must work together to achieve this. Both the Indian government and those who claim that UCC would encroach on their right to religion must work together to improve laws and society.
  • This can be accomplished through discussions, polls, camps, and other methods. 
  • Furthermore, the government must raise UCC’s benefits among the general public..
  • The government should have frequent talks with those who are opposed to the implementation of UCC and investigate the root of the problem.
  • The formation of a high-level committee might be an excellent way to address the challenge of UCC Bill implementation. The committee must run public awareness campaigns and investigate the problem’s root cause.

Conclusion

According to legal experts, the Supreme Court wasted a chance to rule on the matter when it prohibited Triple Talaq in 2017 without addressing the primary question : Whether personal law practices should take precedence over the fundamental right to life, dignity, and non-discrimination? The Constitution Bench’s ruling stemmed from a two-judge Bench of the Court’s Order in October 2015 to take suo moto notice of discriminatory practices against Muslim women. This Bench noted that it had been 30 years since the Court ordered the government to establish a common code to “assist in the cause of national integration” in the Shah Bano case.

The Constitution Bench’s decision came nearly a year after the Law Commission, in an unusual step, launched a ‘questionnaire’ in October 2016 to assess public opinion on the UCC. It wanted to assess if the country was prepared for it. The Court in the Shah Bano case mourned the fact that Article 44 was still a “dead letter.” It’s possible that this will continue to be the case. The Law Commission picked personal law codification above the UCC as a solution to eradicate religious discrimination in its consultation document released. Various traditions and conventions would become ‘law’ under Article 13 of the Constitution if they were codified. According to the Law Commission, any ‘law’ that falls within Article 13 must be consistent with fundamental rights. This would also safeguard religious diversity and might be the way ahead in the future. The Law Commission has said unequivocally that the UCC is “not essential nor desirable at this time in the country.” It stated that ‘uniformity’ is not required for a united nation.

As a result, it is critical that advocacy for a Uniform Civil Code emanates from all sections of society, particularly minority populations. Everyone should extensively discuss and debate the advantages and disadvantages of the Uniform Civil Code. People belonging to an enlightened and responsible state should take the lead in promoting the need for a Uniform Civil Code among the general public and motivating them to reach a shared goal of developing a Uniform Civil Code for the whole Republic of India.

References


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