I. INTRODUCTION

“The JJ Act 20001 is a secular law enabling any person, irrespective of the

religion he professes, to take a child in adoption. It is akin to the Special Marriage Act

19542, which enables any person living in India to get married under that Act,

irrespective of the religion he follows. Personal beliefs and faiths, though must be

honoured, cannot dictate the operation of the provisions of an enabling statute.”3

The above observation of Supreme Court in the recent case of

Shabnam Hashmi v. Union of India4 (hereinafter Shabnam Hashmi) is being

regarded as a pivotal step in India’s struggle for Uniform Civil

Code (hereinafter UCC). The acrimonious debate over the panacea

of UCC versus religious personal laws (hereinafter RPLs) has

continued for decades. In this context, the judgment has renewed

the debate pertaining to reconciliation of inherently incongruous

RPLs with Hindu fundamentalist’s outcry for uniformity of laws

where India refuses to confront this issue under the garb of its

commitment to respect distinct religious beliefs and practices.

1 Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of2000).2 Hereinafter SMA.3 Tahir Mehmood, “Still a Question Mark”, The Indian Express, Feb. 25, 2014. 4 2014 (2) SCALE 529.

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Before embarking upon the desirability of UCC, it is pertinent to

analyze religious minority rights which rest on the proposition

of group identity and seek preferential treatment on the grounds

of language, race, religion, etc. Such rights ensure assimilation

and affirmation of culturally diverse values of all citizens. In

a multicultural society like India, this is illustrated by

following non-interventionist policies in the realm of personal

laws to accommodate religious minorities such as Muslims,

Christians, Parsis, Jews, etc.

Theoretically, embracement of such multicultural principles in

the Constitution of India (hereinafter Indian Constitution)

should have facilitated the aspirations of unity and integrity

set forth in the Preamble but in practice such objective remains

highly misplaced due to presence of factors like poverty,

illiteracy, orthodox traditions and more importantly, religious

elite’s unwillingness to forgo its privileges. This scenario

exacerbates when in case of any conflict or disjuncture, the

government fails to uphold public formal equality and rather

acquiesces to the explicitly discriminatory practices prevalent

in domain of personal law (especially, in Muslim personal laws).

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The state justifies its stance by arguing that RPLs are part of

protection of minority rights and the initiative for change must

come from within the religious community. The contentions

forwarded by the advocates of UCC at this juncture is notable,

alleging that the government has been unable to anticipate that

these communities are attempting to smuggle religion into secular

laws under the garb of religious personal laws . They further

allege that these communities’ strategies involve Trojan horses5

which might obliterate the secular constitutional values6.

Indeed, the judiciary is acutely conscious of such strategies and

in several cases has upheld constitutional guarantees of equality

and non-discrimination in conformity with the international human

rights norms. However, such principles are seldom extended to the

private sphere of RPLs particularly, in matters questioning the

constitutionality of Muslim personal laws.7 Such approach by the

5 Something or someone intended to defeat or subvert from within; ElizabethWebber, Mike Feinsilber (ed.), Merriam-Webster's Dictionary of Allusions(Merriam-Webster, 1999).

6 Andras Sajo, ‘Preliminaries to a Concept of Constitutional Secularism’ 6 Int'lJ. Const. L. 605 (2008). 7 Vrinda Narain, ‘Muslim Women’s Equality in India: Applying a Human RightsFramework’ 35HRQ 91 (2013).

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state and judiciary has led to an explicit subjugation of various

classes such as women within these communities.

This essay seeks to examine the viability of UCC in

contemporaneous society where once these religious minority

rights are granted, they become extremely difficult to withdraw

and even if actions are taken for the sake of promoting equal

treatment for all, they are met with suspicion and mistrust. 8

Also the proponents of UCC while contending such proposals need

to bear in mind that there exist variations in standards and

norms9 since people and cultures have different perceptions of

good and bad and therefore, and any initiative for change must

come from within the community as evident in the case of Parsi

and Christian communities and more recently in some groups of

Muslim communities10. But this does not imply that the state can

8 Gurpreet Mahajan, “Negotiating Cultural Diversity and Minority Rights inIndia”, in Judith Large, Reginald Austin (eds.), Democracy, Conflict and HumanSecurity: Further Readings 110 (International IDEA, 2006).9 Ishtiaq, ‘Western and Muslim Perceptions of Universal Human Rights’ 10 AfrikaFocus 29 (1994).10 Rohit De, “Personal laws: A Reality Check”, Frontline, Sep. 6, 2013; RajeevDhavan, “The Apex Court and The Personal Law”, The Hindu, Mar 14, 1997.

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completely shun external reforms which emerge from general

considerations of public policy11.

The research methodology of this essay centres on bringing out

the most feasible alternative which, without compromising India’s

commitment to uphold and protect religious minority rights can

strike a balance with basic principles of human rights. Part II

of the essay discusses the importance of religious minority

rights in a multicultural society by tracing its evolution in

Indian society and highlights the attitude of legislature and

judiciary over the past decades towards resolving conflicts

arising between basic principles of non-discrimination and RPLs.

Part III discusses the suitability of UCC as a ‘quick-fix’

solution to such conflicts. Part IV analyses the extent to which

Shabnam Hashmi has contributed to this discourse and kind of

approach taken by judiciary to delve upon such issues. And in

conclusion, Part V ends by suggesting a multistep plan for the

government to move towards the realization of the constitutional

goal enshrined in Article 44(hereinafter A.44).

11 Gerald James Larson (ed.), Religion and Personal Law in Secular India: A Call to Judgment(Indiana University Press, Bloomington, 2001).

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II. RECAPITULATING THE DEBATE

The formation of Indian law is based on liberalist and positivist

principles according to which legitimacy of law is dependent upon

universal, neutral, and abstract principles where law must entail

features of justice, equity and good conscience12. But such legal

liberalism ceases to exist in domain of RPLs, where India by

virtue of being a multicultural society has accorded minorities a

special status with a vision of assimilation.

In contemporary India, such state-legitimized status is being

repeatedly challenged as the history of these saving laws in

India illustrate that they have been selectively used as a tool

to achieve political purposes and patriarchic governance. More

importantly, they have proved to be disadvantageous to certain

sections of society, especially women. Such polemics further fuel

the criticism of multicultural societies where unequal rights to

citizens, violation of individual rights, impediments to policy

12 Maneka Gandhi v.Union of India (1978) 1 SCC 248.

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change and restriction of cultural exchange are considered to be

inevitable outcomes. The criticism has become more intense in

relation to plural family law systems13, where these group laws

to a larger extent have been unable to keep abreast of social

changes.

However, many are of the opinion that such contentions reveals a

lack of understanding of how culture, rights, law and society

operates and also that such biases are a general and universal

phenomenon rather than being peculiar to any one group. In this

sense we need to delve into the intention of our Constitution-

makers in recognizing right of minorities to follow their RPLs,

deliberate upon the extent to which such reasoning is justified

and to acknowledge the nature of conflict which India’s array of

religious freedoms are advancing.

A. Understanding Freedom of Religion and Religious Personal Law in Democratic and

Multiculturist India

13 Archana Parashar, “Gender Inequality and Religious Personal Laws in India”14 Brown J. World Aff. 103 (2008).

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While cases of religious extremism have blemished the public

image of religion, scholars believe that nations around the world

who have nurtured religious liberty have witnessed its positive

effects including harmony and stability.14 Since the potential

for animosity is greatest where differences are most profound or

where majorities dominate, freedom of religion is critical

because it allows people with differing convictions about the

deepest matters of truth to live together peacefully. 15 To most

of the individuals it is an intrinsic part of their life which

defines them and other rights emanate from it.16

It is because of such rationale that almost all democratic nation

states respect for religious freedom and allow cultural liberty.

In India, such a realization has existed from ancient times where

difference of religion between king and his subject was not a

matter of contention and such practices were prevalent at large

14 See Robert D. Putnam and David E. Campbell, American Grace: How Religion Divides andUnites Us (Simon and Schuster,UK, 2010).

15 Brian J. Grim and Roger Finke (eds.), The Price of Freedom Denied: ReligiousPersecution and Conflict in the Twenty-First Century (Cambridge University Press,Cambridge, UK, 2010).

16 Robert D. Baird, Human Religious Priorities and Indian Thought 11 J. Church &St. 221 (1969).

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scale.17 After the Independence, our Constitution–makers have

designated religious freedom the status of fundamental right

making it justifiable in Court of law. There were two-fold

reasons to such recognition: first, religious usages and beliefs

have been the core value of Indian society and; second,

recognition of the right to be distinct from the majority, which

is the central feature of a democracy. But the commitment to

protect these rights has been problematic owing to India’s

diversity which is more complex in comparison to any other

culturally diverse society existing.18 Numerical, social and

cultural inequality were deeply rooted in Indian society; there

were reasonable apprehensions that whether Independent India

would be willing to do away with these inequalities.19

Independent Indian republic was thus, faced with a daunting task,

to find a compromise between modern, western, liberal ideas of

democracy and the enormous ethnic, linguistic, cultural, and

religious diversity found in India. 20 In pursuit of which

17 Charles Drekmeier, Kingship and Community in Early India (Stanford UniversityPress, California, 1962).18 Granville Austin, Working a Democratic Constitution: The Indian Experience (OxfordUniversity Press, New Delhi, 1999).

19 Erik Reenberg, “Religious minorities in India” 2 Res. Cog. 138 (2007). 20 Id.

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certain safeguards in form minority rights on the basis of

religion, language and culture were given.21. For the purpose of

this essay we will be only dealing with religious minority rights

and the kind of discourse they have renewed in India in relation

to RPLs.

B. Religious Minority Rights and The Problem of Religious personal Laws

Minority rights and non-interventionist policy is a pre-

constitutional phenomenon tracing its genesis to colonial

encounter. Each event in the aftermath of 1857, specifically the

non-interventionist policy in religious affairs, ‘divide and rule

policy’ propagating theory of two communities i.e., Hindus and

Muslims, granting separate electorate to the Muslims & Sikhs

incentivised the cause of protecting religious minority rights.22

Ironically, such recognition of the minorities by the British was

an instrument to protect their own interest of governance and to

21 D. L. Sheth , Gurpreet Mahajan , “Minorities and the Politics ofConstitution Making in India” in D.L.Sheth (ed.), Minority Identities and the Nation-State 113 (Oxford University Press,1999).

22 Hon’ble Mr. K.G. Balakrishnan, Individual Rights in India: A perspective from the SupremeCourt Paper presented at the International Roundtable Conference, Universityof Georgia (2009).

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weaken the movement of freedom struggle by instilling communal

affiliations. Remarkably the Indian intelligentsia anticipated

the motive behind such moves and openly criticised their

policies. 23

Despite such criticisms, the damage done on communal lines could

not be undone. As already discussed, the Constitution-makers

realized that placating the fears and suspicion raised by these

groups would be pivotal to the nation-building process in pursuit

of which certain safeguards were guaranteed, for instance,

allowing various communities to preserve and practice their

personal law.24 Thus after post-Independence Indians were

governed by general territorial laws on criminal, administrative

and commercial matters to the exception of personal laws.25 The

source of these personal laws is the truncated form of traditions

of all-encompassing sacred law aspired to achieve both holiness

and spiritual progress.26 Generally, these personal laws govern

23 Sugata Bose, Ayesha Jalal, Modern South Asia: History, Culture, Political Economy(Psychology Press, UK, 2004).

24 Dinesh Kumar, “Protection of Cultural Rights Under the Indian Constitution:An Analysis” 9 Int'l Stud. J. 1 (2012).

25 Supra n.926 Id.

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the laws relating to family affairs for e.g. marriage, adoption,

succession, inheritance etc.27

In contemporary India the presence and practice of these RPLs has

come under heavy criticism. Religious movements are accused of

organizing themselves politically with the goal of challenging

secular arrangements through the façade of religious minority

rights and ultimately, undermining the neutral and universally

applicable legal provisions.28 Existence of gender biased laws

like polygamy, divorce, maintenance, etc. entail innately

discriminatory features against certain groups, specifically

women who enjoy superior significance in our constitution.

Also, one may find the existence of internal incongruity in RPLs,

questioning its very tenability such as Bohras, Khojas & Kutchi

Memons in Muslim community who follow various Hindu customs and

beliefs which are considerably different from the tenets of

Shariat law, for instance, using coconut as auspicious fruit

during wedding which is a prevalent practice in Hindu tradition

27 Supra n.1128 Supra n.4

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or following the Mitakshara succession pattern as amended by

Mayukha or local customs.29

RPLs are also accused of stagnating the evolutionary process of

minority religious cultures by successfully suppressing internal

dissent, intensifying inter-group suspicion and fostering group

identity as distinct from state.30 In such situations, if such

violative RPLs are permitted to override the provisions of

equality and equity, it shall defeat the very purpose of these

29 Rasheeduddin Khan, Composite Culture of India and National Integration 125 (IndianInstitute of Advanced Study, 1987) : The influence of Hinduism on Muslims ismore pronounced on communities like the Bohras, Kutchi Memons and Khojas whoembraced Islam relatively recently, i.e., about 200 years back. Similarityin surnames or family names amongst Indian (and Pakistani) Muslims. To gaugethe influence of Hinduism one only needs to ask a Khoja or Bohra his name.Names like Allibhai Premji, Abdul Hashim Premji, etc. occur frequently amongthe Bohras and Khojas. Hindu surnames occur more frequently among Muslims ingeneral for instance, Chowdhury, Khatri, Munshi, etc. Khoja social functionsreveal the surprising presence of Hindu customs. For instance during a Khojawedding, a coconut is used as an auspicious fruit. In Maharashtra, Muslimwomen from the Konkan region even wear the Mangal Sutra after wedding. Thewearing of flowers, (forbidden in Islam) by Muslim women is a common Hinducustom carried on by the converts. Caste amongst Indian (and Pakistani)Muslims: Muslims still refer to themselves as Rajputs Jats, Gujjars, etc.and caste considerations are present during match-making. Thus we can seethat though Islam was spread by the sword and it acted as an exorcist toredeem the newly won adherents from the influence of their originalreligions, quite a few traces of pre-Islamic culture did manage to seep intothe lifestyle and consciousness of the Indian converts to Islam.

30 Martin E. Marty, “Religious Dimensions of Human Rights” 10 Emory Int'l L. Rev. 97(1996).

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provisions since not a single law could ever be enacted to

alleviate the disadvantaged position of these communities.31

Ostensibly, under such circumstances constitutionalism appears

vulnerable to the claims of religious freedom rights with the

apparent aim of smuggling itself into the public and political

spheres behind the veil of fundamental rights and

multiculturalism. Emphasizing the obligation of the government

to duly adhere to the doctrine of ‘parens patriae’32, the sole

prerogative should be the protection of its citizens against

abhorrently discriminatory religious or social practices, as

religion cannot be deployed to sanction ‘status quo’.

C. Judicial and Legislative Approach in Case of Conflict

The Courts as a part of their judicial obligation are often

called upon to draw a balance between the conceptual triangle of

individual rights, group rights and governmental interests in

varying measures. It is precisely at this juncture where the

31 Constituent Assembly Debates, Nov. 23, 1948 (Tuesday), Vol. XVI. 32 Charanlal Sahu v. Union of India (1990) 1 SCC 613.

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Courts flounder. Upon apprehending a political thicket,

distinguished judges like Justices Chagla and Gajendragadkar

opined that reformation of law on grounds of equality was not

under the purview of judicial function since RPLs do not

constitute ‘law’ so as to attract the fundamental rights

invocations33. This view was confirmed by the Supreme Court in

198034 — even though rightly criticized by several jurists as

basically flawed. 35 This made enforcement of constitutionally

guaranteed rights for individuals a Herculean task when they were

violated by personal laws. By denying the ‘Article

13’(hereinafter A.13) remedy and abandoning personal laws as

‘law’ for equality purposes, judges averted controversy and

abdicated their role to introduce equality into dubious RPLs.36

Though, the Courts have restrained from imposing their own

interpretations of traditional religious authorities37 but

attempts have been continually made for the harmonization of RPLs

33 State of Bombay v. Narsu Appa Mali AIR 1952 Bom 84.34 Krishna Singh v. Mathura Ahir AIR 1980 SC 707. See Maharshi Avdhesh v. Union ofIndia (1994 Supp (1) SCC 713).

35 A. M. Bhattacharjee, Muslim Law and the Constitution 45 (Eastern Law House,Calcutta, 1985). 36 Id. 37 Chancia v. Mangamma 1969 CrLJ 684 (SC).

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with the secular legal provisions.38 Then followed the landmark

case of Mohammad Ahmed Khan v. Shah Bano Begum39(hereinafter Shah

Bano) which incensed the Muslim community due to the Supreme

Court disparaging Islamic law and the status of women in Islam

while holding that the Court's interpretation was in conformity

with the Shariat and urging the government to proceed towards

enacting a UCC to remove the lacuna within Muslim personal law.

The Muslim community considered a secular court interpreting

religious law as grossly inappropriate. Political uproar from the

Muslim community caused the Indian Parliament to reverse the law

in the Muslim Women (Protection of Rights on Divorce) Act, 1986

(hereinafter Act, 1986). It thus denied Muslim women the option

of exercising their rights under the provisions of secular

legislation. Thus, the Court's attempt to intervene in religious

law proved politically unacceptable and was reversed by the38 Bai Tahira v. Ali Hossein Fissati AIR 1979 SC 362 which affirmed the legality of thesecular provision of s.125 of Code of Criminal Procedure, 1973 (hereinafterCrPC) in the face of conflicting provisions in RPLs. See Shahzadi Begum v. AbdulGaffer (2002) 7 SCC 518; Sahida Begum v. Mofizul Haque AIR 1986 Gau 171; Areconciliation between CrPC and the new Act was attempted in the case of A.AAbdullah v. A.B.M. Sayeidbhaf' AIR 1988 Guj 141, where it was specifically heldthat: “The 1986 act does not degrade the Muslim women's right to takerecourse to the CrPC, as the Act is a personal law subordinate to the CrPC”.A similar reasoning was applied to uphold the Muslim women's rights in thecases of Shahnaz Bano v. Baboo Khan (1986) 1 DMC 106, Ali v. Sufaria 1988 CrLJ 197and Bashir Khan v. Jamilla Bi 1994 CrLJ 361.

39 (1985) 2 SCC 556.

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legislature who has always found an excuse to avoid legislating

on personal laws bringing them in conformity with the

Constitution for political appeasement.40

The Supreme Court was finally called upon to determine the

constitutionality of the Act, 1986 and held that the Act, 1986

had to be read in conjunction with the right to equality and to

life with dignity in the Constitution and confirmed that the lump

sum granted to a divorced Muslim woman had to be sufficient to

maintain her for life and providing Muslim women better claims to

maintenance.41

Second instance where the Supreme Court while deliberating upon

inequities within personal laws held that any usage found to be

pernicious and in derogation of the law of the land or opposed to

public policy or social decency cannot be accepted or upheld by

courts in the country.42 It has been held that the personal laws

conferring inferior status on women is anathema to equality.

40 M.A. Qureshi, Muslim Law of Marriage and Maintenance 299 (Deep and DeepPublications, New Delhi, 1995). 41 Daniel Latifi v. Union of India (2001) 7 SCC 740.42 N. Adithyan v. Travancore Devaswom Board & Ors. (2002) 8 SCC 106.

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Personal laws are derived not from the Indian Constitution but

from the religious scriptures. Thus, the laws derived must be

consistent with the Indian Constitution else they become void if

they violate fundamental rights.43 Supreme Court’s recently

reminded the immoral nature of a discrimination against a woman

under RPLs in John Vallamattom v. Union of India44 and further held that

any legislation bringing marriage, succession and the like

matters of secular character within the ambit of Articles 25 and

26 of the Indian Constitution is a ‘suspect legislation’.

It is noteworthy that Indian Divorce Act, 1869 providing grounds

for divorce for a Christian couple blatantly discriminates on the

grounds of sex when since the grounds available to a husband are

much easier and simpler as compared to a wife thereby with

additional burden accruing on the wife. Despite glaring

inequalities, the court has upheld the validity of such

provisions45 observing that it is a reasonable classification

with the object of preserving the chastity of women46. 43 Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996) 8 SCC 525. 44 (2003) 6 SCC 611.45 Dwarka Bai v. Prof. Nainan AIR 1953 Mad 792.46 It is interesting to note that The Supreme Court has time and againreiterated that even if the object of legislation is laudable, if it results

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The High Courts47 and the Supreme Court48 have in various

decisions emphasized the need for a complete reform of RPLs and

suggested the need for a UCC. Several Christian communities and

activists have endeavoured to reform the Christian personal laws

by formulating a progressive ‘Christian Marriage and Matrimonial

Cause Bill, 1990’ but in vain. The Law Commission of India in its

reports49 has stressed for the much needed reform but the

legislature has failed to take any significant initiatives in

that direction.

This brings us to the crucial problem. The basis of codifying

RPLs is to ensure justice. This can be achieved through the

Courts (the A.13 remedy) or by legislation (the A.44 solution).

The judges have refused to adopt the A.13 remedy and its

in violation of fundamental rights, it is ultra vires in Yusuf v. State AIR 1954SC 321.

47 Bombay v. Bombay Education Society AIR 1954 SC 561; R. C. Cooper v. Union of IndiaAIR 1970 SC 564. 48 Jorden Diengdeh v. S. S. Chopra AIR 1985 SC 564. 49 Law Commission of India 15th Report on Law Relating to marriage and DivorceAmongst Christians in India (August, 1960); Law Commission of India 22nd

Report on Christian Marriage and Matrimonial Causes Bill, 1961 (December,1961); Law Commission of India 90th Report on The Grounds of Divorce AmongstChristians in India: Section 10 Indian Divorce Act 1869 (May, 1983).

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reformist tendencies have been negated by the legislature (The

Act, 1986 enacted to nullify Shah Bano). Legislative apathy and

judicial oversight have continued to deny women any realistic

relief.50

III. UNIFORM CIVIL CODE; A ‘QUICK-FIX’ SOLUTION

Indian Constitution by virtue of A.44 under Directive Principle

of State Policy (hereinafter DPSP) imposes an obligation on the

government to “endeavor to secure for the citizens a uniform

civil code throughout the territory of India”51. The

implementation of such a code seeks to abrogate the dual secular-

religious system through universalisation of all RPLs.52

The Constitution-makers subsequent to the accomplishment of

independence desired to reorient the social and economic

50 Sunadri Krishna, “Personal Laws and the Constitution” 3 Stud. Adv. 45 (1991). 51 Article 37, Constitution of India, 1950 provides that the provisionscontained in the Part IV shall not be enforceable by any court, but theprinciples therein laid down are nevertheless fundamental in the governanceof the country and it shall be the duty of the State to apply theseprinciples in making laws.

52 Shalini A. Chibber, “Charting a New Path Toward Gender Equality in India:From Religious Personal Laws to a Uniform Civil Code” 83 Ind. L.J. 695 (2008).

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situation of the Indian society primarily through a collaborative

participation of all communities under the belief that

establishment of ‘a single citizenship’ would enable elimination

of communalist forces and usher in a utilitarian social order. 53

In the light of the then existing political scenario, interests

of religious minority groups could not be overlooked in order to

preserve their separate identities and prevent oppression. Most

importantly, the involvement of these groups as citizens of the

nascent nation was indispensable to instill emotions of honour

and integration in the national life. 54 A twofold purpose was

achieved through the recognition and assimilation of minority

groups while at the same time enabling the majority and minority

groups to converge into one in near future. 55 Thus, the inclusion

of A.44 as a DPSP emerged from the Constitution-makers’ yearning

to achieve national unity rather than gender equality by assuring

Muslims that their personal laws would not be offended. 56

53 Sarbani Sen, The Constitution of India: Popular Sovereignity and Democratic Transformation(Oxford University Press, New Delhi, 2007).

54 Shibanikinkar Chaube, Constituent Assembly of India: Springboard of Revolution (ManoharPublishers & Distributors, 2000).

55 Id. 56 Archana Parashar, Women and Family Law Reform in India: Uniform Civil Code and Gender

Equality 158 (Sage Publications, NY, 1992).

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A very significant observation to be acknowledged at this

juncture lies in the fact that the duty imposed under A.44 is not

contradictory to Articles 2557, 2658, 2759 and 2860 guaranteeing

right to religious freedom since the Courts have evolved a binary

classification of ‘essential practices’ and ‘secular activities’

of religious orders identifying the permissible ambit for

governmental regulation.61 Furthermore, the language of the

Constitution itself encourages questions about the proper scope

of ‘religious freedom’ by including rights relating to the

preservation of minorities’ identity and excluding personal laws

from the scope of constitutional scrutiny. Very often these

questions arise not in the context of individual or group rights

sough to be enforced against the State but in the domain of

57 This guarantees to every person the freedom of conscience and right toprofess, practise and propagate religion subject to public order, moralityand health and to the other provisions of Part III of Constitution.

58 This guarantees freedom to establish and maintain institutions forreligious and charitable purposes, to manage its own affairs in matters ofreligion, to own and acquire movable and immovable property and toadminister such property in accordance with law.

59 This provides that no person shall be compelled to pay tax for thepromotion or maintenance of any religion or religious denomination.

60 This provides that no religious instruction shall be imparted in anyeducational institution wholly maintained out of State funds but this clauseshall not apply to an educational institution which is administered by theState but was not established under any endowment or trust which requiresthat religious instruction shall be imparted in such institution.

61 Supra n.19. See Durgah Committee v. Hussain AIR 1961 SC 1402.

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relations between the religious majority and the various minority

communities. Such a framing of questions in political terms

highlights the possibilities of divergence between the idea of

‘religious liberty’ and several ‘core ideals’ of the

constitutional scheme.62 Hence, religion must necessarily be

confined to affairs strictly religious and must not smuggle into

the social, economic and political life of the people which

should be guided solely by secular considerations to strike a

balance. 63

Admittedly though, UCC since its inception has been ardently

resisted by religious elites frequently calling it as ‘Damocles

Sword’64 dangling over all religious communities by posing a

grave threat to their domination over RPLs. 65 They refer to the

immutability and sacredness of RPLs in order to counterbalance

this peril and ensure sustenance of their hegemony.66 This

62 Id. 63 P.N. Bhagwati, “Religion and Secularism Under the Indian Constitution” inRobert D. Baird (ed.) Religion and Law in Independent India (Manohar Publishers andDistributors, 2005).

64 An impending potential disaster; Elizabeth Webber, Mike Feinsilber (ed.),Merriam-Webster's Dictionary of Allusions, (Merriam-Webster, 1999).

65 Bader Sayeed, “Need for Codification”, The Hindu, Jul. 25, 2000.”66 Shimon Shetreet, “Academic Blueprint For the Implementation of a UniformCivil Code for India” 1 Utah L. Rev. 97 (2011).

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aversion to UCC assumed an aggravated form following the judgment

in Shah Bano and the subsequent ‘hyper-politicization’ of the

debate over reforming RPLs in general and the expansion of

women’s rights in particular.67

A robust secularism is the foremost prerequisite towards securing

the trust of minority communities in the neutrality of the

government, in absence of which minorities that have been

discriminated against for decades are unlikely to accede to a

relinquishment of their laws.68 The turmoil over UCC originates

from concerns over the process and who controls that process,

much more than the concept itself.69 Minority rights advocates

appear apprehensive that UCC would lead to the relinquishment of

such religious law and practices considered as the keystone of

their cultural identity by imposition of the majority Hindu law

under the garb of a UCC.70 It would resultantly allow Hindus to

legislate on Islam with probable reformation of laws. And, these67 Dinusha Panditaratne, “Towards Gender Equity in a Developing Asia:Reforming Personal Laws Within a Pluralist Framework” 32 N.Y.U. Rev. L. & Soc.Change 83 (2007).

68 Supra n.4.69 Supra n.40.70 Ainslie T. Embree, “A South Asian Dilemma: The Role of Religion in thePublic Sphere” 4 Brown J. World Aff. 137 (1997).

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fears become stronger in contemporary times when the secular

institutions are being appropriated by the Hindu fundamentalist

to further its own assimilationist propaganda of ‘Hindutva’

rather than fundamental rights. This is clearly evident in case

of Hindu Nationalists criticizing gender-unequal features of

particularly Muslim law, but ignoring the prevalence of similar

practices in Hindu law. However, religious minority groups might

be legitimate in fearing that the UCC would intrude upon their

values in the presence of a DPSP seeking to eventually prohibit

cow slaughter across India.71 Such an overtly Hindu-centric

provision in a professedly secularist constitution reduces

confidence in the democratic government's credibility to be

unbiased while formulating religious policies and laws.72

The issue of insecurity amongst minorities about their RPLs also

relates to their privileged position as minorities in a country.

Since codification would interfere with their supremacy over

interpretation of the texts, UCC would abolish most or all of the

71 Anton Cooray, “The Protection and Promotion of Religious Rights: ACommonwealth Survey” 12 Sri Lanka J. Int'l L. 153 (2000)

72 Supra n.55

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authority of Muslim religious leaders.73 It is noteworthy that

the government is not a passive actor and rather actively

legitimizes certain interpretations of a group’s culture as

opposed to other competing interpretations by absolutely granting

these religious groups dominion over personal laws. By choosing

sides in divisive religious matters, it inadvertently denies

rights to the oppressed classes and instead confers “special

privileges” on the minority.

In absence of political will, such progressive development in law

will not occur in India inspite of its strong democratic

institutions and express constitutional mandates.74 This leaves

the issue of government’s commitment to uphold gender equality

through legal reforms an unsettled question. Shah Bano’s case was

deployed against the Muslim community and the condition of Muslim

women was severely condemned while the discourse in case of Hindu

woman, Roop Kanwar75 was not as deplorable. Where Shah Bano was73 Partha S. Ghosh , Politics of Personal Laws in South Asia, Identity Nationalism and Uniform Civil

Code 89 (Routledge, New Delhi, 2012). 74 Laura Dudley Jenkins, “Diversity and The Constitution in India: What isReligious Freedom?” 57 Drake L. Rev. 913 (2008).

75 Roop Kanwar, an 18-year-old widow committed suttee in 1987. The incidentwas highly controversial, as groups throughout India either publiclydefended Kanwar’s actions or declared that she had been murdered.

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portrayed as a symbol of the oppressed Muslim women, but Roop

Kanwar was ‘dignified’ as a symbol of all that is pure and holy.

In fact, both were victimized at the hands of a prejudiced

culture. The temperament of the current government seems to be

nowhere ahead than that of the Constituent Assembly, which

prioritizes Muslims over gender equality since Muslims, and not

women are a formidable voting bloc.76

The Courts, as part of their judicial function have mostly proved

inadequate in the sphere of personal laws. Even if the religious

personal laws are made to comply with the Indian Constitution,

the piecemeal manner of assessing these diverse laws will be an

everlasting course of litigation and inefficient in dispensing

justice to women. Also, justice for all is a more sustainable way

of delivering justice as against justice from case to case.77

Indeed, this discussion over codification raises the issue of

conflict of laws.78 Unilateral pursuance of reforms to minimize76 Anik Rahman, “Religious Rights versus Women's Rights in India: A Test Casefor International Human Rights Law” 28 Colum. J. Transnat'l L. 473 (1990).

77 Frances Raday, “Culture, Religion and Gender” 1 Int. J. Const. L. 670(2003). 78 Supra n.40.

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conflicts may in turn lead to compromise of important internal

values and customs. A further conflict may arise between

contending reforms themselves owing to the uncertainty of their

impact thus, a dilemma of choice arises.

Having set out these observations, successive governments

continue to support the arguments put forth by religious

patriarchal leaders for political purposes or arising from a

misunderstanding of the words ‘religious tolerance’.79 Lastly,

Muslims in India are considered as a community “whose votes are

courted but whose interests are ignored, and sometimes

attacked.”80

Bearing in mind the objective of UCC, formulating an equitable

opt-in code would mean the Muslim traditionalists are not only

assured of their hegemony in the private domain but also

legitimizes their claim of religion being sacrosanct and

79 Ratna Kapur, Brenda Cossman (eds.), Gender Faultlines of Legal Liberalism and theAdvance of the Contemporary Right: The Case of India 117 (Sage Publishers, New Delhi,1996).

80 Srikanth Reddy, “What Would Your Founding Fathers Think? What India’sConstitution Says—And What its Framers Would Say—About the Current DebateOver A Uniform Civil” 41 The Geo. Wash. Int’l L. Rev. (2009).

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inflexible. Such a solution is unacceptable because it allows the

patriarchal norms to prevail unchallenged. Advancing the pubic-

private split, women shall continue to be perplexed with the

choices of either withdrawing from the community or ‘consenting’

to unfair patriarchal interpretations of religious law. Being

reluctant to jeopardize their community relations and denied the

privilege of making choices, such an ‘opt-in plan’ is prima facie

misleading while unjustly placing the hardship of resolving

differences upon the individual. As evidenced by the current

debate, the SMA being an opt-in secular law has been unable to

rattle the predominance of RPLs.81

Though Indian Constitution deserves acclaim for its progressive

aspirations of gender equality. However, incessant politicization

of law and identity intertwined with RPLs continue to obstruct

the achievement of UCC.

IV. WHERE ARE WE HEADING: IN LIGHT OF SHABNAM HASHMI V. UNION OF INDIA

81 Supra n.40.

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“It is emphatically the province and duty of the judicial department to say what the law

is. Those who apply the rule to particular cases, must of necessity expound and

interpret that rule. If two laws conflict with each other, the courts must decide on the

operation of each.” 82

The question of religious accommodation and the place of one’s

inalienable rights has been a perennial question in Indian

context. While the limits of public order, health and morality

seem to be fairly defined, the bright line becomes blurry when

Courts have to choose between RPLs and the core rights because

the rights accorded to the groups through RPLs create hardships

for Courts in resolving such issues.83

Religion is deployed as a shield to protect the practice of

hypocrisy, pitting faith against the claims of modernity, gender

justice and equality. In India, the Courts carefully navigate

between honouring secular tendencies to reform RPLs and

accommodating minority religions; both assimilationist and

82 Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803).83 Cyra Akila Choudhury, “Between Traditions and Progress: A ComparativePerspective on Polygamy in the United States and India” 83 Col. L. Rev. 966(2012).

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accommodationist tendencies are evident. They have been

deferential to the legislature. The Indian Courts have used an

array of interpretive moves to reach just outcomes but the. This

tension has become intractable. Nevertheless, the hope for just

code that replaces personal laws still burns albeit dimly.84

In the latest judgment delivered by the Supreme Court while

adjudicating right of adoption in the religion of Islam where the

petitioner(Shabnam Hashmi) approached the Apex court praying for

threefold reliefs: first, for legal recognition of the right to

adopt and to be adopted as a fundamental right under Part III of

the Indian Constitution; second, requesting the Court to lay

down optional guidelines enabling adoption of children by

individuals irrespective of religion, caste, creed etc. and;

third, directing the respondent to enact an optional law

primarily focusing on the child and other considerations like

religion etc. taking a hind seat.

84 Supra n.75.

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The Supreme Court held that irrespective of the constraints

imposed by their RPLs, any person can adopt a child under the JJ

Act. Further, the bench reiterated that the JJ Act, 2000 does not

prescribe any compulsive action by a prospective parent thus,

leaving such person with the liberty of being governed by the

provisions of the JJ Act if he wishes. Such a person is always

free to adopt or choose not to do so and, instead, follow what he

understands to be the dictates of religious law applicable to

him. Being an optional legislation the JJ Act does not contain an

unavoidable imperative and therefore, cannot be stultified by

principles of personal law and would always continue to govern

any person who chooses to so submit himself as such.

However, the bench did not articulate a adoption as a fundamental

right which would require ‘awaiting a dissipation of the

conflicting thought processes in this sphere of practices and

belief prevailing in the country’. The Court considered the

legislature better equipped to comprehend the mental preparedness

of the entire citizenry to think in a united and uniform manner

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on the issue which for the present expresses its view through the

enactment of the JJ Act and the same must receive due respect.

Though the goal of UCC is yet to be fulfilled, the JJ Act is a

small step further in achieving the goal aspired by A.44. The

Court emphasized that the personal beliefs and faiths, though

must be honoured, should not be allowed to override the

provisions of an enabling statute.

Prior to the judgment, there was no law governing adoption for

people belonging to communities other than Hindus, Sikhs and

Jains. Parents belonging to other religions like Muslims,

Christians, Jews and Parsis only had the power of guardianship in

which one possesses only legal right in the child till he or she

turns an adult, although the biological parents can intervene

during that period. But, adoption makes one natural parents and

the child also acquires all rights akin to a naturally born child

and can even inherit property.85

85 Shivesh C. Thakur, Religions and Social Justice 44 (Macmillan Press, NY, 1996).

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A careful analysis of the judgment reveals that howsoever,

tactfully drafted it is nothing but a ‘small step’ in recognizing

adoptions under JJ Act and also granting that Indian Muslims may

adopt children. It seems to be wholly facilitative in the sense

it does not impose any compulsive action upon the adoptive

parent. 86

The approach of the relief granted in this case is comparable

with that of SMA which places responsibility on the individual to

access the enabling provisions of the Act. Thus, a dilemma arises

where the individual member of the minority community seeks

affirmation of rights from the state against the diktats of the

community and has to choose between acceptance within the

community or enforcement of the constitutionally guaranteed

rights. For the fear of stigmatization and ostracization within

the religious community, one may rather remain silent and be

denied her rights as witnessed in the aftermath of Shah Bano

where the widow refused to comply with the decree of the Court

after ‘realizing’ that her demand for maintenance beyond the

86 Upendra Baxi, “Perils of Restraint”, The Indian Express, Feb. 26, 2014.

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stipulated time period was against the tenets of Islam. Hence, a

zero sum game is an inevitable consequence.87

On the one hand, the Court adores Article 21 (hereinafter A.21),

right to liberty and rendering of complete justice by expanding

its own jurisdiction but on the other hand, denied elevation of

the right to adopt to the status of a fundamental right

guaranteed under A.21. It can be concluded that Judicial self-

restrained stands commended; judicial activism stands

downgraded.88

It is to be noted that the Court evaded its responsibility in

furthering the realization of A.44 and stresses that the

legislature has to discharge the constitutional obligation under

A.44 and it now lies upon the future generation to draft a UCC.

The Court was not justified in ruling so when it could have

followed on the lines of historical judgment of Shah Bano even if

the public response would have been provocative.

87 Id. 88 Id.

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Lastly, the Court had failed to note that many Muslim jurists are

interpreting fiqh (jurisprudence) as distinct from the divine

Sharia when, even though Sharia remains subject to conflicting

human interpretations and is no more divine in its origin.89

It is puzzling and rather, distressing that even after 65 years

of Independence, India has been unable to undertake any step

towards actualization of A.44. The question lingers whether the

RLPs and the public’s religious sentiments are supposed to guide

and influence the state actions or the Indian Constitution which

forms the very basis of religious freedoms and right to complex

equality?90

V. THE PROCESS OF BUILDING CONSENSUS: THE ROAD TO UNIFORM CIVIL CODE

It is often quoted that in the interest of development of

secularism and national integration, UCC is a necessity. Examples

of strong countries like Israel, Japan, France and Russia who

89 Id. 90 Zoya Hasan, Ritu Menon (eds.) In a Minority Essays on Muslim Women in India (OxfordUniversity Press, Uk, Delhi, 2005).

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have successfully implemented UCC are quoted to buttress the

cause of UCC.91 Admittedly, such directive under A.44 of Indian

Constitution is desirable and might be able to accelerate

national integration but such a possibility is always rebuttable

if democracy chooses to operate the other way. Such trends in

contemporary times are common and rampant where any attempt to

bring UCC can result in ‘reactive culturalism’, where a minority

group does not merely freezes internal reform; there is actually

a concerted effort on the part of the group's leaders to move the

group backwards in time to more traditional practices.

It is therefore suggested that before resorting to any radical

actions which can be counterproductive there must be some

internal reforms in personal laws to make them more equitable and

such internal reforms must be guided by forces of

‘vernacularization’92 and gradualism93. Rather than a unitary

focus on culture, special attention should be given to structural

91 Nandini Chavan, Qutub Jehan Kidwai (eds.), Personal Law Reforms and GenderEmpowerment: A Debate on Uniform Civil Code (Hope India Publications, New Delhi,2006).

92 Supra n.5 p.111. 93 Leila P. Sayeht, Adriaen M. Morse , “Islam and the Treatment of Women: AnIncomplete Understanding of Gradualism” 30 Tex. Int'l L. J. 311 (1995).

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inequalities of wealth, power, access to education94,

employment95, and gendered poverty.96 The notion of culture must

be demystified to gain recognition of the fact that it is not

monolithic and in fact it is deeply contested, politically

contingent, actively negotiated, discursively created and

selectively reinvented. 97 This scheme could also be applied in

alleviating women’s condition in Muslim community as culture can

be strategically used to forward women’s rights campaigns.98

94 Minority Rights Group International, “Muslim Women in India” (Feb. 1990)—Literacy rate of Muslim women was found to be 21.91%– lower than even thepoor national average of 24.82%.

95 Venkitesh Ramakrishnan, “Community on the margins”, Frontline, Dec. 2, 2006;In 1983, the Gopal Singh Committee instituted by the government, declaredMuslims as a ‘backward’ community in India. A central feature of this‘backwardness’ is their exceedingly poor socio-economic status, particularlyof Muslim women. Most Muslim women remain ‘invisible’ workers in theinformal economy.

96 Rohit De, “Personal laws: A Reality Check”, Frontline, Sep 6, 2013;Newevidence suggests that gender inequality within the family bears a greatercorrelation to socio-economic conditions than the form of religious law.New areas of emphasis on family law reform address questions such asdomestic violence which cut across community identities and concerns.

97 Iris Marion Young, Justice and the Politics of Difference 18 (Princeton UniversityPress, New Jersey, 1990).98 Ratna Kapur, “Revisioning the Role of Law Rights in Women’s Human RightsStruggles” in Saladin Meckled-García, Başak Cali (eds.), The Legalization ofHuman Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law 80, 81(Psychology Press, 2006).

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International human rights conventions99 can provide helpful

insights for domestic interpretation of the constitution and can

greatly impact in reforming the constitutional position of women

other adversely affected classes.100 International human rights

law impacts women’s status through the acceptance and

incorporation of these standards by national constitutional

courts.101

Also one must understand that there can be no claim to a pure

cultural authenticity and indeed one must acknowledge hybridity

of culture and modernity of tradition.102 For instance earlier

religious texts and traditions are much more often quoted in

debates about Muslim law in comparison to India's other family

law systems which leads to an assumption that the position of

Muslim law particularly with regard to position of women have

remained static and have not changed for better. This is not the99 International Covenants on Civil and Political Rights (1966); theInternational Covenant on Economic, Social and Cultural Rights (1966); TheElimination of All forms of Racial Discrimination (1966); the Convention forthe Elimination of All Forms of Discrimination against Women (1979) ; TheConvention on the Rights of the Child (1989).

100 See Shah Bano and Sarla Mudgal. Mr. Justice S. Saghir Ahmed and Mr. Justice R.P. Sethi in Sarla Mudgal: “This court had not laid down any new law butonly interpreted the existing law which was in force.”

101 In case of principles related to women; Application of Principle ofConvention on Elimination of Discrimination of Women (CEDAW) andInternational Covenant of Cultural and Political Right (ICCPR).

102 Supra n.6 p.93.

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case as Islam was the first document which recognized ‘rights of

man’ quite earlier than Magna Carta in 1215. 103 Also, in India

Muslim women had greater rights to control shares of ancestral

property than Hindu women until Hindu inheritance law was changed

in 2006104 where the Hindu daughters were given rights to greater

shares of their parents "self-earned" property than Muslim

daughters. These internal discourses by using their own culture

as an instrument can largely facilitate internal changes. But at

last, we need to understand that changes in social practice and

public opinion do not determine legal change because of the

fluctuating influence of groups and opinions.

Legal change depends specifically on legal mobilization, the

patterns of litigation associated with these movements especially

by women's organizations and other rights organizations for

women's rights and cultural pluralism and more importantly policy

makers' orientations toward the regulation of family life, their

understanding of group norms and group initiatives, their

103 Muhammad Watt, R. B. Serjeant, “The Constitution of Medina” 8 Isl.Quarterly 4 (1964). 104 Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005).

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normative vision of family life, etc. Thus any reform in personal

laws aftermath of Shah Bano requires greater external

intervention by the legislature.

The legislature in order to address reactive culturalism and

internal dissent occurring in the Muslim community must proceed

in stages which will serve two fold purpose first it will keep

religious groups involved in the process and the second ultimate

objective of enacting a uniform

civil code will be on board105. The central aim of the legislature

should be to provide all religious communities a long, but

defined, period of time in which they are required to reform

their own personal laws and contributes towards the creation of a

uniform civil code.106 However, constitutional gender equality

should be the substantive component of all RPLs.

By involving both men and women of the different religious groups

in the discussion and final outcome, the plan seeks to encourage

internal reform and to dilute the majority- minority tensions by

105 Supra n.54 p.712. 106 Id.

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making each group responsible for its own reform and equally a

part of drafting the uniform civil code107. If successful, India

will achieve its goal of promoting a secular state where various

cultural diversity and rights of individual will co-exist

together rather than on altar of each other.

107 Martha C. Nussbaum, Women and Human Development: The Capabilities Approach 717(Cambridge University Press, Cambridge, 2001).

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