By Kartikeya Misra, Debjyoti Samaddar, Shreyasi Singh, Shubhangi Verma and Yash Bhatnagar*

Indian Secularism

We have discussed the historical context of the discourse about UCC, but we must see the idea of Indian Secularism and its separate identity, with an overview of the potential arguments from both sides of the coin – in favour and against of the UCC.

It is frequently discussed in India’s setting of widespread religious pluralism and secularism, but there is no logical connection between these three.  Religious pluralism is logically consistent with secularism, which is defined as respect for all major world religions. It is a socio-political strategy for promoting religious diversity. The question is now whether a standard civil code is necessary from a socio-political standpoint, and if so, why it shouldn’t be free of all religious restrictions.

A meaningful solution to these problems, agreeable to all concerned, requires conceptual clarity and logical analysis of the issues involved to draw out their clear-cut distinctions and interrelations. This is particularly so in the case of a uniform legal code to regulate the mundane life of all citizens of a country. This is not a matter of feeling or sentiment but of understanding the realities of life in a given situation. It is not an imposition of some pattern of living on an unwilling section of the society but a rational acceptance of the need and utility of uniformity of laws in some spheres of life.

Indian secularism has ‘almost similar’ distinct conceptions that are:

• The Principled Distance Model of Secularism
• The Communal Harmony Model

• The Principled Distance Model

The Principled Distance Model of Secularism, one of the more modern secularism theories, calls for a state that permits religions to coexist peacefully. This also entails respect for all religions on both sides.  This paradigm suggests that religion and other variables in India should be kept apart on moral grounds. Indian secularism upholds the equality of all religions and forbids the interference of political, social, or cultural elements with the people’s routine religious practices.

Not only that, but this approach even permits the state to intervene in situations where there is any form of religious discrimination. According to this, anyone who practices a religion and believes in it is free to do so without interference from others.

• The Communal Harmony Model

The true essence of religion is serving others and having moral ethics that benefit the people around us.

While this model wasn’t aimed towards a particular religion or a group of society, it laid the foundation of integrating mutual respect and regard within the different communities of people.

There are instances when the integral harmony is disturbed. And when that happens, the authorities and the state have to step in. For that to happen, the state cannot be affiliated with any particular religion but needs to be distant from everybody.

It is imperative to notice that Indian Secularism has a separate ideology and identity of itself – one must also explore how it is separated from western secularism – considering that in making of a robust law or mechanism around Indian Secularism and Religious Ideologies – we must be aware as to what not to become in lieu of attaining global recognition:

Western Secularism

Western secularism, particularly the secularism found in countries like the United States, France, and many European nations, is rooted in the Enlightenment period and the concept of separation of church and state. It emphasizes the complete separation of religion and government institutions. In this model, the state remains neutral toward religion and does not favour or endorse any particular religious beliefs or practices. Western secularism tends to prioritise individual rights, freedom of expression, and the private sphere of religious belief.

Indian secularism, on the other hand, has its roots in the diversity of religions and cultural traditions within the country. India’s approach to secularism is enshrined in its Constitution, which seeks to protect the rights of individuals to practice and profess their religion freely. Indian secularism takes a more inclusive and accommodative approach, recognizing and respecting the country’s diverse religious, linguistic, and cultural communities. The Indian state has often been involved in the affairs of religious institutions, such as providing financial support and regulating religious practices, with the intention of ensuring fairness and social harmony.

One key difference between Western and Indian secularism is the role of the state in religious matters. While Western secularism emphasises non-interference by the state in religious affairs, Indian secularism takes a more interventionist approach, with the state actively engaging in managing religious institutions and practices. Additionally, Indian secularism places a greater emphasis on social harmony and balancing the interests of various religious communities.

It is worth noting that the implementation and interpretation of secularism can vary within each country and over time. Western secularism and Indian secularism are not monolithic entities, and there can be debates and variations in their application. Both approaches aim to strike a balance between religious freedom and the need for a harmonious and inclusive society, albeit with different strategies and historical contexts.

Secularism, Gender Justice and Conformity

Another facet of the discourse on the Uniform Civil Code and its relation to Indian Secularism is the idea of national integration. We have observed a constant push for laws to be more equal in the context of the marginalised, like women, as feminist groups have made repeated calls for the same. Based on a homogeneous understanding of nationalism, the BJP and its predecessor, the Jana Sangh, championed the UCC as a means of resistance against what is framed as Muslim exceptionalism. This refers to their perceived special treatment of Muslims by giving legal sanctity to Muslim personal law and not testing its provisions on the touchstone of the Constitution. For instance, the party’s election manifesto in 1996 declared the adoption of a UCC, which would foster a single Bhartiya identity amongst all religious groups and ensure gender justice. Similarly, its 1998 manifesto declared that the party would promote the legal and economic rights of women and not subject them to debilitating personal laws. It also declared that the LC will be entrusted with formulating a UCC based on progressive practices from all traditions. This Code inter alia will give women property rights, ensure women’s right to adopt, guarantee equal guardianship rights, remove discriminatory clauses in divorce laws and prohibit polygamy. In an interview, Atal Bihari Vajpayee also justified the demand of UCC on grounds of gender equality. Vajpayee had remarked, “The personal laws as they exist in India today, are in constant conflict with the very concept of equality among sexes and form the source of continuous discrimination against women in all areas of life. This is not the place to go into specific details, but suffice it to say that a civil society cannot allow women to be discriminated against in the name of religious practices.”

Critics of the BJP have viewed the party’s stance as the imposition of a majoritarian Hindu Law in the disguise of UCC. However, the party has clarified that a UCC will not mean the universal imposition of Hindu Law, and best practices across communities will be identified. To this effect, Vajpayee remarked, “Uniform Civil Code does not mean imposing the Hindu Code on others but evolving a code based on the best traditions of every community.” Similarly, during his presidential address to the party in 1996, LK Advani had suggested setting up a Law Commission, which would study the personal laws of all communities and thereafter draft a code based on their equitable elements. This vision is reflected in the election manifestos issued by the party from time to time,40 including the latest manifesto issued in 2019. Even recently, the party spokesperson and leaders have reiterated that UCC is not a religious issue. For instance, Union Minister Rajnath Singh in 2021 remarked, “common civil code will not be against any faith or religion”. Similarly, former Union Minister Prakash Javadekar has remarked, “UCC is not a religious issue but an issue or rights, dignity and justice to women.” More recently, in response to concerns raised by the Nagaland government, the party indicated that Christians and tribal communities may be left outside the scope of the UCC. However, such statements of an inclusive UCC have been viewed with suspicion by the political opposition.

These normative justifications for the UCC, offered both by the Supreme Court as well as by the BJP, have been critiqued by the women’s movement. For instance, feminist academic and activist Nivedita Menon has argued that the packaging of the UCC as a tool for national integration is flawed. She argues that the discourse around national integration is premised on the homogenising push of the Hindu Code and overlooks the fact that the idea of the ‘nation’ itself is constructed through an assertion of voices that enjoy systematic power at the exclusion of those on the margins. She adds that contrary to perception, Hindu law was not reformed but merely codified. This codification was achieved through the erasure of a diversity of ‘Hindu’ laws and did away with several liberal customary practices that benefited women.

However, distinct from this integrationist basis for the UCC, the need to reform personal laws to undo unjust gender provisions has also been emphasised. Dr Ambedkar, who believed that it should be permissible for the State to intervene in the domain of religion to ensure social justice, argued that failing to ensure this would truncate progress. Dr Ambedkar’s politics was also reflected in his decision to resign from the cabinet in response to the Hindu Code Bill being watered down and split into four separate laws in response to stiff opposition from conservative Hindu quarters.

A need for a secular code was a critical demand of the women’s movement in the decades immediately following the enactment of the Constitution. However, the conflation of the rationale of national integration with gender justice meant that, over time, consensus on the issue amongst secular and feminist quarters became illusory. The Shah Bano decision, which became the lightning rod for the Hindu majority to take aim at the Muslim minority, marked a shift in the women’s movement. It led to a sense of unease as what was “self-evidently beneficial for women in the form of common, secular, national laws (was) also equally self-evidently articulated as a communal demand”. Several sections of the women’s movement, while agreeing on the necessity for a secular gender-just family law regime, warned against legislative reform in a communally charged climate. Recently, in light of the 22nd LC inviting comments on the UCC, it has been recommended that codifying and amending personal laws to make them gender just may be a better step than a UCC. Others argued this may not be possible as such an exercise may be opposed by community heads.

The ideas of gender justice and national integration have also been discussed, and the potential trade-off that may occur resultantly. The 21st Law Commission headed by former Supreme Court judge Balbir Singh Chauhan had come out with its ‘Consultation Paper on Reform of Family Law’ on August 31, 2018, in which it said that providing Uniform Civil Code “…is neither necessary nor desirable at this stage”.

“While diversity of Indian culture can and should be celebrated, specific groups, or weaker sections of the society must not be disprivileged in the process. Resolution of this conflict does not mean abolition of difference,” the Commission said.

It pointed out that there are significantly different attitudes towards how a union between two people is imagined in different religions. Trying to try and project one practice as better than the other would pose problems. “While in Hindu law, marriage is a sacrament, in Christian law, divorce continues to be stigmatised; in Muslim law, marriage is a contract and Parsi law registration of marriage is central to the ritual of marriage. It is important that these different attitudes are respected and not placed in hierarchy, pitting one religious attitude against another,” it said. The law panel said that while many argue that a uniform code may advance the cause of national integration, this may not necessarily be the case when cultural difference inform people’s identity and its preservation guarantees the territorial integrity of the nation. It also said, citing the legal protection provided to tribal family law, that cultural diversity cannot be compromised to the extent “that our urge for uniformity itself becomes a reason for threat to the territorial integrity of the nation”.

We know that most countries are now moving towards recognising differences, and the mere existence of difference does not imply discrimination but indicates a robust democracy. Appreciation of these differences aligns with India’s principle of “Unity in Diversity”, and this should not be disturbed.

“In the absence of any consensus on a uniform civil code, the Commission felt that the best way forward may be to preserve the diversity of personal laws but at the same time ensure that personal laws do not contradict fundamental rights guaranteed under the Constitution of India,” it said.

The Commission felt that a solution lay in codifying different personal laws rather than striving for a uniform code. It said codification of various personal laws could help one arrive at certain universal principles that prioritise equity rather than the imposition of a uniform code in the procedure, which can also discourage many from using the law altogether, given that matters of marriage and divorce can also be settled extra judicially. It said it was desirable that all personal laws relating to family matters must first be codified to the greatest extent possible, and the inequalities that have crept into codified law should be remedied by amendment. Essentially, this means an analysis of these existing codes and laws that are in contravention of the tenets of human rights, which espouse gender justice and equality, and focus on remedying those laws within the confines of these specially enacted codes instead of going forward with the UCC.

Regarding the Muslim personal law, which has been at the centre of the UCC debate, the Commission said that resorting to unilateral divorce should be penalised as per the provisions of the Protection of Women from Domestic Violence Act, 2005 and anticruelty provisions of IPC,1860, especially section 498. On the practice of Nikah Halala, it said bringing an end to triple talaq should automatically put a curb on it. It also observed that although polygamy is permitted within Islam, it is a rare practice among Indian Muslims, and, on the other hand, it is frequently misused by persons of other religions who convert to Islam solely for solemnising another marriage rather than being Muslim themselves.

Basically, there are two primary considerations that the Central government uses to justify the creation of a UCC, one, as an instrument of mitigating ‘differences’ in personal laws governed by religions and conformity under the “One Nation One Rule” principle. This also represents an idea of national integration, similar to the ‘reified religious identity’ constructed by the British. However, the idea of national integration and the nation is based in the public sphere, and communal tensions transform this uniformity into conformity into what may be described as a majoritarian civil code. Also, the resultant cacophony indicates minority religions fearing a departure from their right to practise and profess their religions as they deem fit. The UCC should equitably figure out a mechanism to uniformly look at unequal laws in matters about marriage, inheritance, guardianship, and adoption. The idea of national integration should be based on equality and inclusivity and not conformity and exclusivity. 

In a multi-cultural country like India, instead of deviating the narrative as an instrument of religious polarization, concerted efforts should be made to attain gender-just laws within religious and cultural communities, stirring the idea of ‘reforms from within’. The laws must have the intention to override personal laws to ensure the State’s protection of the safety and dignity of minorities. Religious groups may be urged to rationalise their personal laws in the backdrop of constitutional values of equity, justice and good conscience. The UCC must give primacy to secular laws over personal laws, particularly in cases of conflict between different sets of laws covering specific areas of civic exchange. A comprehensive gender-just package of legislation, even in the areas where laws do not exist, is needed. The UCC is a good idea in principle, promoting equality, gender justice, modernity, streamlining of legal processes, uniformity and fulfilling the international human rights obligations that India has.

* Kartikeya Misra, Debjyoti Samaddar, Shreyasi Singh, Shubhangi Verma and Yash Bhatnagar are members of the Kautilya Society at Dr. Ram Manohar Lohiya National Law University, Lucknow.