THE ISSUE OF UNIFORM CIVIL CODE IN

MULTICULTURAL INDIA

Dissertation submitted in part fulfillment for the requirement of the

Degree of

LL.M

Submitted by Supervised by

AKHILENDRA PRATAP SINGH DR. NIRAJ KUMAR

NATIONAL LAW UNIVERSITY

DELHI (INDIA)

2016

1
 DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “The Issue of Uniform Civil Code in
Multicultural India”submitted at National Law University, Delhiis the outcome of my
own work carried out under the supervision of Dr. Niraj Kumar, Assistant Professor,
National Law University, Delhi.

I further declare that to the best of my knowledge, the dissertation does not contain any
part of work, which has not been submitted for the award of any degree either in this
University or in any other institution without proper citation.

Akhilendra Pratap Singh

Roll No. 04 LLM 15

National Law University, Delhi

New Delhi

May 30, 2016

2
 CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M dissertation entitled “The Issue of
Uniform Civil Code in Multicultural India” submitted by Akhilendra Pratap Singh at
National Law University, Delhi is a bona fide record of his original work carried out
under my supervision. To the best of my knowledge and belief, the dissertation: (i)
embodied the work of candidate himself; (ii) has been duly completed; and (iii) is up to
the standard, both in respect of content and language, for being referred to the examiner.

Dr. Niraj Kumar

Assistant Professor,

National Law University, Delhi

New Delhi

May 30, 2016

3
 ACKNOWLEDGMENT

I would like to express my sincere gratitude to all who guided and supported me in the
completion of this work.

Foremost, I am grateful to my supervisor, Dr. Niraj Kumar for his continuous guidance,
patience and support throughout the work. It was for his immense knowledge and
expertise on the law and jurisprudence that provided due direction to this work, and
enabled me to understand and appreciate the topic efficiently. I would also like to express
my gratitude to both, Prof. Mahendra Pal Singh and Dr. Niraj Kumar for their insights on
the issue of the dissertation during the comparative law course.

Furthermore, I would like to thank my father and elder brothers for their continuous
support and generosity throughout the year. I am also grateful to my peers, Aishwarya
Singh, Abhay Kumar and Jitamanyu Sahoo for their delightful company throughout this
year. Thanks are also due to the Prof. (Dr.) Ranbir Singh and Prof. (Dr.) G. S. Bajpai for
providing an excellent academic environment in NLU, Delhifor legal study and research.

Akhilendra Pratap Singh

4
 LIST OF ACRONYMS AND ABBREVIATIONS

& And

AIR All India Reports

Anr. Another

Ariz. J. Int’l & Comp. L. Arizona Journal of International and Comparative Law

CAD Constituent Assembly Debates

Drake L. Rev. Drake Law Review

ed(s.) Editors

edn. Edition

et. al. and others

Econ. Polit. Wkly Economic and Political Weekly

German LJ German Law Journal

Harv. LR Harvard Law Review

Id Idem

i.e. That is

Ind. LJ Indiana Law Journal

J Journal

J. Contemp. Legal Issues Journal of Contemporary Legal Issues

J Indian Soc. Journal of Indian Law and Society

MP Madhya Pradesh

5
Notre Dame L. Rev. Notre Dame Law Review

No. Number

Ors. Others

OUP Oxford University Press

P&H Punjab and Haryana

Pat. Patna

Polit. Theory Political Theory

p. Page

pp. Pages

SC Supreme Court

SCC Supreme Court Cases

Supra see above

UCC Uniform Civil Code

v. Versus

Vol. Volume

6
The Constitution of India (1950)

LIST OF STATUTES

The Code of Criminal Procedure (1898).

The Code of Criminal Procedure (1973).
The Dissolution of Muslim Marriage Act, 1939.
The Hindu Adoption & Maintenance Act, 1956.
The Hindu Marriage Act (1955).
The Hindu Succession Act, 1956.
The Prohibition of Child Marriage Act, 2006.

7
 LIST OF CASES

1. Abdul Fata Mohammad Ishak v. RusomoyDhurChowdhary, (1894) 22 I.A. 76

2. Ahmedabad Women Action Group v. Union of India, (1997) 3 SCC 573.

3. BaiTahira v. Ali Hussain, AIR 1979 SC 362.

4. Daniel Latifi&Anr. v. Union of India, 2001 (7)SCC 740.
5. Fazlunbi v. K. KhaderVali, AIR 1980 SC 1730.
6. Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, 1981 AIR
746.
7. Gaya Prasad v. Bhagwat, AIR 1966 MP 212.
8. JordenDiengdeh v. S.S. Chopra, AIR 1985 SC 935.
9. Mohd. Ahmad Khan vs. Shah Bano Begum &Ors., AIR 1985 SC 945.
10. Nalini v. State of Bihar, AIR 1977 Pat. 171.
11. Smt. SarlaMudgal, President, Kalyani&Ors. v. Union of India &Ors., AIR 1995
SC 1531.
12. SurinderKaur v. Gardeep Singh, AIR 1973, P&H 134.

8
 TABLE OF CONTENTS

S. No PAGE
TITLE
NO.

COVER PAGE
Declaration by the Candidate i
Certificate of Supervisor ii
Acknowledgment iii
List of Acronyms and Abbreviations iv - v
List of Statutes vi
List of Cases vii

CHAPTER 1 INTRODUCTION 1 - 13
1.1 INTRODUCTION 1-4
1.2 CONCEPTUAL FRAMEWORK 4–9
1.2.1 Review of Literature 4–9
1.3 RESEARCH METHOD 9 – 12
1.3.1 Statement of Research Problem 9 – 11
1.3.2 Objectives 11
1.3.3 Scope of the Study 11
1.3.4 Hypotheses 12
1.3.5 Research Methodology 12
1.4 CHAPTERIZATION 12 - 13

CHAPTER 2 MULTICULTURALISM 14 - 28
2.1 MULTICULTURAL THEORY: DEBATING 15 – 21
RIGHTS

9
 2.1.1 Multiculturalism and the issue of Equality 16 – 20
2.1.1.1 Status Inequality from an Inter-group perspective 17 – 18
2.1.1.2 Status Inequality from an Intra-group perspective 18 – 20
2.1.2 Multiculturalism and the issue of Individual Freedom 20 – 21
& Liberty
2.2 NEW CHALLENGES TO MULTICULTURALISM 21 – 22
2.3 MULTICULTURALISM IN INDIA 22 – 28
2.3.1 Historical Background 23
2.3.2 Politics of Multiculturalism in the CAD 23 – 26
2.3.3 Indian Constitution: A multicultural approach 26 – 2
2.4 CONCLUSION 28

CHAPTER 3 RELIGION & RIGHT TO RELIGIOUS 29 – 47

FREEDOM
3.1 RELIGIOUS FREEDOM: GROUP OR INDIVIDUAL 30 – 35
RIGHT?
3.1.1 Difference between Group Right and Individual Right 30 – 32
3.1.2 Religious freedom as group right: Justifications and 32 – 35
Rebuttal
3.2 RELIGIOUS FREEDOM AND ISSUES OF 35 – 39
EQUALITY AND DIGNITY
3.2.1 Relationship between Right to Equality and Religious 36 – 38
freedom
3.2.1.1 Equality amongst Religious Groups 36
3.2.1.2 Equality within Religious Groups 37 – 38
3.2.2 Relationship between Liberty and Religious Freedom 38 – 39
3.3 RELIGION: A PRIVATE AFFAIR? 39 – 42
3.4 RELIGION AND RELIGIOUS FREEDOM IN INDIA 42 – 47
3.4.1 Historical Background 42 – 43
3.4.2 Framework of Religious Freedom under Indian 43 – 45

10
 Constitution
3.4.3 Indian Secularism 45 – 46
3.5 CONCLUSION 46 – 47

CHAPTER 4 LEGAL PLURALISM VIS-À-VIS 48 – 65

PERSONAL LAWS IN INDIA
4.1 HISTORICAL BACKGROUND OF PERSONAL 49 – 52
LAWS
4.1.1 Personal Laws in Ancient India 49 – 50
4.1.2 Personal Laws in Medieval India 50 – 52
4.2 PERSONAL LAWS IN COLONIAL PERIOD 52 – 58
4.2.1 Codification of Laws in Colonial India 54 – 56
4.2.2 Legislation Codifying the Personal Laws 56 – 58
4.3 PERSONAL LAWS IN POST-COLONIAL ERA 58 – 64
4.3.1 Personal Laws and the issue of UCC in CAD 58 – 60
4.3.2 Codification of Hindu Personal Laws 61 – 62
4.3.3 Non- interference & Muslim Personal Laws 62 – 64
4.4 CONCLUSION 64 – 65

CHAPTER 5 THE ISSUE OF UNIFORM CIVIL CODE 66 – 70

IN INDIA
5.1 THE BASES OF THE DEMAND FOR UCC: 67 – 71
CONSTITUTIONAL VALUES AND PERSONAL
LAWS
5.1.1 Basis of Equality 67 – 70
5.1.2 Basis of Dignity 70 – 71
5.1.3 Legal v. Social Reality: Hindu Law Reforms 71 – 73
5.2 COMPARING HINDU & MUSLIM PERSONAL 74 – 86
LAWS IN CONTEMPORARY INDIA

11
 5.2.1 Marriage 74 – 76
5.2.2 Divorce 76 – 80
5.2.3 Succession 81 – 84
5.2.4 Maintenance 84 – 86
5.3 CONVERGENCE OF HINDU AND MUSLIM 86 – 87
PERSONAL LAWS
5.4 INDIAN JUDICIARY AND THE ISSUE OF UCC 87 – 90

CHAPTER 6 CONCLUSION AND SUGGESTIONS 91 - 94

BIBLIOGRAPHY viii - xiv

12
 CHAPTER 1

INTRODUCTION

“The increasing tendency towards seeing people in terms of one dominant ‘identity’
(‘this is your duty as an American’, ‘you must commit these acts as a Muslim’, or ‘as a
Chinese you should give priority to this national engagement’) is not only an imposition
of an external and arbitrary priority, but also the denial of an important liberty of a
person who can decide on their respective loyalties to different groups (to all of which he
or she belongs).”

― Amartya Sen1

1.1 Introduction

The collective wisdom of the Constituent Assembly left the task of enforcing a Uniform
Civil Code to the futuristic democratic rulers of India by mentioning it as a Directive
Principle of State policy. This seemed a balanced decision in light of the communally
charged environment which resulted in the partition of the country. It seemed overly
prudent in the sense that it provided confidence to the minorities that their identity shall
be protected and respected in the newly independent ‘state’ of ours. It also seemed
democratically prudent decision for the state which was dreamt to become a nation,
which could only have been possible via willful integration of people rather than forceful
compliance to a regime. Hence, the decision hit two birds with one stone. On one hand,
being both non-justiciable and a directive to state, it ensured that issue of Uniform Civil
Code acted as constant reminder to the state as to its unfinished task, while on the other,
it ensured that the same should be implemented when the situation seems to be apt for it.
The arrival of such an “appropriate/apt time” seems to be perpetually elusive.

The idea of having a Uniform Civil Code in a country seems to make good administrative
sense. It is why the countriesthroughout the world have had this uniformity in varying
degrees. A uniform code may not seem that relevant a topic to be discussed upon in

1
AMARTYASEN, THE IDEA OF JUSTICE (Harvard University Press 2011),p. 246-47.

13
highly homogenized societies. However, such idea becomes a highly contested one when
one makes a deeper analysis of the rights; it directly and indirectly impinges upon.
Harmonization of issues connected with it seems impossible. For instance, what is the
interplay between religious and customary personal laws on one hand and general state-
made laws on the other? To what extent should a state-made law allow or restrain,
religious and socio-cultural diversity, so that it does not end up jeopardizing one common
national identity? To what extent does a state actually have power and legitimacy to
decree and enforce legal uniformity? There seem to be many more issues at play here like
“group rights” v. “individual rights”, “religion or culture” v. “law”, or “legal pluralism”
v. “legal uniformity”, or “integration” v. “assimilation”, other than the central issue of
legal authority.2

Presently, the world has changed a lot from what it was before the wave of globalization.
The ideals that were desirable then, seem ludicrous or irrelevant today. While the reverse
also exists, this is to say that, ideals which were inconceivable then seem urgently
required today. So at the outset itself, the relevance of a Uniform Code can be contested
by one stream of thought. However, the desire for the same also seems quite relevant.
Hence, having established the contested relevance of the idea itself, I would instead like
to focus upon the utility and shortcomings of having a Uniform Civil Code in the 21 st
century. In the age of globalization where diversity seems a celebrated phenomenon, the
idea of a Uniform code is akin to having a “one size fits all” approach, with utter
disregard to the uniqueness of one. Owing to heightened migration, countries continue to
become more pluralistic for the simple reason that with migrating people migrate their
distinct personal laws. An easy way out, for any state, to deal with a multitude of
differing personal laws is to enforce a common civil code. But, doing the same might
result in forcing an individual or a group of individuals to give up their religious/cultural
identity.

With each modern state aspiring to become a unified nation, the devise employed was
either integration or assimilation. Of the two, the former seemed to be more aligned to

2
Werner Menski, Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda,
The, 9 GER. LJ 211 (2008).

14
democratic ideal, and hence became the guiding tool, where every inhabitant of a
territory, irrespective of his or her race, religion, or culture was considered as a citizen of
a nation. Identity of an individual was first identified with his or her nationality and then
with other socio-cultural attributes. Today, integration is often criticized as a mere
euphemism for subjugation of diversity and is often rejected as having been used as a veil
for assimilation. Moreover, it’s being seen as a signal of the triumph of the dominant
identities (majority identity) over the minority identities, having a rich socio-cultural
heritage of their own.3 This denial of identity and history, of disadvantaged /subordinated
racial, gender, sexual, ethno-religious cultural groups, owing to the ruthless integration
and mindless duplication, has brought forth the issue of protection of religious/cultural
identity of individuals as well as groups.

Today, as the 21st century is approaching towards its youth, the rising assertiveness of
ethno-cultural and other social groups world-wide can be witnessed throughout the world.
These groups are demanding, now with ever-more increasing intensity, recognition of
their indigenous religious and cultural traditions, and along with the same, opportunities
to develop and maintain the socio-economic and political institutions necessary to
preserve them. These past and contemporary developments in the area of political theory
and philosophy have brought forth the scholars and policy-makers, the issue of
multiculturalism.

India, generally referred to as the “land of diversity” too, has persistently faced the pulls
and pressures of being a multicultural society, and continues to grapple with same.
Historically, it has been the land which has accommodated, along with its social and
cultural development, a number of religions and cultures within it.4Undoubtedly,
existence of diversity and culture in Indian society with respect to religion and culture
accords diversity in the perceptions and convictions with respect to same in the minds of
Indians. No matter, whether these perceptions and convictions are genuine or pseudo. It
has nevertheless given Indians an image of religious and spiritual people. Therefore, the

3
AUSTIN SARAT & THOMAS R. KEARNS, RESPONDING TO THE DEMANDS OF DIFFERENCE:
AN INTRODUCTION, CULT. PLUR.IDENTITY POLIT. LAW 1 (1999).
4
For instance, religions like Hinduism, Buddhism, Jainism and Sikhism were native to the country, and
others like Islam, Christianity, Jewish etc. migrated from foreign lands and are now well accommodated,
and are flourishing in India.

15
tendency to accord preference to religious and cultural tenets over positive law is still
visible in the India of 21st century. Since Independence and sometime before it, this
feature of diversity embedded in the Indian society and the religious bent of Indian
citizens has become a vexed issue for the country mainly due to the issue of Uniform
Civil Code.In this dissertation, I have made an attempt to take up the long disputed issue
of Uniform Civil Code from a multicultural perspective. I shall attempt to make an
argument for/against the implementation of the said code through a right-based discourse
within the constitutional and legal framework in the country and in the light of
contemporary philosophical development in the field of political science.

1.2 Conceptual Framework

The general framework of this dissertation is the theory of rights in a liberal framework
discussed from a legal perspective. I place reliance on existing constitutional design,
basic rights and statutory legal framework to articulate arguments in favor or in against of
the issue of religious identityand Uniform Civil Codein India. As multiculturalism is
essentially an issue of political theory and philosophy, I also rely on scholarship within
political science, particularly on contemporary political philosophy. Thus, my work is
majorly reflective of legal studies, but is perhaps better described as an inter-disciplinary
engagement with the issue of Uniform Civil Code in the light of right to religious
freedom and multicultural theory.

1.2.1 Review of Literature

Multiculturalism

In many parts of the world, ‘identity studies’ or ‘minority studies’ is a distinct field of
study. The scholarly discourse on the issue of identity in the west in the late 20th century
was mainly done in the context of multiculturalism with special focus on group rights. In
these discourses, the groups referred to as minorities were both, the immigrants groups
and the groups of indigenous peoples and ethno-cultural, religious and racial sects.5
Another feature of these debates were that the term ‘minority rights’ referred to cultural

5
WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY: AN INTRODUCTION (Oxford: Oxford
University Press 2002).

16
rights of minorities, which they claim on the basis of their distinct ethnic, racial, religious
or cultural identity.6 The objective of these discourses as can be inferred from the above
was protection of minority cultures from being oppressed and persecuted by the majority
culture through assimilation into national culture.

The process of assimilation is disadvantageous to minorities as its attempt is to unite the

heterogeneous groups within its territory into some form of national culture. This national
culture projected to be as secular or neutral, is in reality largely reflective of the culture
and customs of the dominant religion or cultural community of the territory. 7 Thus,
minorities argued that national culture of the state is an attempt to erode their religious or
cultural identity. The requirement to conform to the norms of the state, which would in
majority of cases a copy of norms of dominant groups, discriminates against them. These
insisted for a certain degree of acceptance and recognition of their language, customary
practices, and identities.8 The discourse was, thus, focused upon the equal respect to be
accorded to all human religions and cultures as these defined and constituted an
individuals’ identity. Therefore, even a liberal and democratic state may be justified when
it actively engages itself to protect and conserve endangered cultures and religions.
Moreover, further defense of the protection of minority culture emanates from the liberal
theory that diverse cultures provide individuals with opportunities in the form of different
form of life from among which they can effectively choose.9

At some epoch, the discussion regarding citizenship intercepted with these debates as the
recognition of distinct minority groups has serious effects on the understanding of what
constitutes the idea of a ‘citizen’.10 Presently, it is well-accepted that a common set of
first generation rights for all citizens is not sufficient as the needs of the minority groups
are not addressed by this. Some scholars take the view that such notion of citizenship
which is founded primarily with focus upon individual rights, with secondary or without

6
ROWENA ROBINSON, MINORITY STUDIES (Oxford University Press 2012).
7
Will Kymlicka, The Rights of Minority Cultures: Reply to Kukathas, 20 POLIT. THEORY 140 (1992).
8
KYMLICKA, supra note 5.
9
Charles Taylor, The Politics of Recognition, 98 NEW CONTEXTS CAN. CRIT. (1997).
10
TH Marshall, “Citizenship and Social Class”, in TH Marshall, Class, Citizenship, and Social
Development.Essays by TH Marshall. New York: Anchor Books (1965). See also, WILL KYMLICKA&
WAYNE NORMAN, CITIZENSHIP IN DIVERSE SOCIETIES (Oxford University Press 2000).

17
reference to group identities, would be unjust because it marginalizes such minority
groups.11 Without any doubt, the arguments put forth by the scholars who favor providing
group rights by basing them within liberal multicultural theory seem relevant and
justified. But, there are some difficulties which they need to deal with. Firstly, the fact
that minorities are often not constituted democratically internally, 12 and secondly, the
communities/groups should be more liberal in assessing their internal inconsistencies.
This would be helpful in engendering a common secular outcome.13

This rigidity of minority groups towards principles of liberalism has led to plurality of
concerns, foremost amongst them being the issue of gender justice and socio-political
instability.14 They are often so blindly bent towards enforcement of collective group
norms which are often antithetic to the rights of individual members of such groups. In
particular, traditional or religious communities often discriminate against women by
imposing norms of marriage and divorce that leave no freedom of expression or choice. 15
The past and present scholarly discourse on the issue of multiculturalism, mainly, has
been discussed around the idea of group rights as against individual rights. But, this is not
to imply that the debate has been stagnant. It is evolving continuously through being
discussed in varying theoretical contexts.16 The claim that minority rights, although not
inherently unjust, make it more difficult to generate and sustain social cohesion is still to
be delved more seriously. As to the present position, there isn’t any actual evidence that
countries pursuing liberal multiculturalism experience greater social or political
instability. In fact, the research suggests quite the opposite.17

In India, the issue of identity generally revolves around, and is thought of as religious
identity. It is true to a great extent that recent discourses on multiculturalism in India have
11
Iris Marion Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, 99
ETHICS 250 (1989).
12
KYMLICKA, supra note 5.
13
AkeelBilgrami, Secular Liberalism and Moral Psychology of Identity, ECON.POLIT. WKLY. 2527 (1997).
14
MONICA MOOKHERJEE, MULTICULTURALISM IN ISSUES IN POLITICAL THEORY (ED.) CATRIONA
MCKINNON (Oxford University Press, first ed. 2008). See also, Duncan Ivison, Introduction:
Multiculturalism as a Public Ideal, INTROD. ASHGATE RES. COMPANION MULTICULT. ED IVISON SURREY
ASHGATE 1 (2010).
15
Martha Nussbaum & Susan Moller Okin, A Plea for Difficulty, MULTICULT. BAD WOMEN (1999).
16
Duncan Ivison, Introduction: Multiculturalism as a Public Ideal, INTROD. ASHGATE RES. COMPANION
MULTICULT. ED IVISON SURREY ASHGATE 1 (2010).
17
KYMLICKA, supra note 5.

18
been done with references to western discourse on the issue. But, in reality, the Indian
practice on multiculturalism and attention to minorities has been in place for long.
Historically, the understanding of India in terms of ‘majority-minority’ dichotomy was
introduced in context of religion by British colonial rulers. This divide became more
broad and clear with passage of time and development of politics in the country,
ultimately resulting into partition.18 By the time of Independence and the Constituent
Assembly Debates, the categories of ‘majority’ and ‘minority’ were pretty much clear
and visible. On one hand, the framers of the Constitution were still haunted by the ghosts
of Partition, while, on the other hand they were also aware of the need to protect and
defend the interests of the minorities in the country. 19

Historians, with their slightly nuanced perspectives and ideologies, have accorded the
view India’s partition was an act propelled by, the political desires of the Indian National
Congress and Muslim League, and at the same time, equally backed by religious
sentiments of the Hindu and Muslim community . With such historical context in mind,
the Constituent Assembly started the work of framing the Constitution for India with the
motto of ‘unity in diversity’. The institutionalization of minority rights in India was,
therefore, coterminous with the Constitution of the country. Extension of such rights at
the time of Independence affirms that the framers of the Constitution took seriously the
place of religion in the lives of people and accepted the importance of religious and
cultural identity. Despite, the Constitution expressly providing for and recognizing the
religious and cultural identity, the path henceforth has not been smooth mainly due to
post-colonial politics on religion and personal laws.20

Right to Religious Freedom

In order to contextualize the issue of religious identity in the multicultural theory in

Indian diaspora, it is pertinent to first contextualize the understanding of the right to
religious freedom in general and in Indian context. The issues which arise with respect to
the latter right in context of multiculturalism are numerous. But, my concern here is to

18
ROBINSON, supra note 6.
19
CHRISTOPHE JAFFRELOT, RELIGION, CASTE, AND POLITICS IN INDIA (Primus Books 2010).
20
RINAVERMA WILLIAMS, POSTCOLONIAL POLITICS AND PERSONAL LAWS: COLONIAL LEGAL LEGACIES
AND THE INDIAN STATE (Oxford University Press, USA 2006).

19
focus upon two fundamental concerns regarding the same which are intricately related to
the idea on which multiculturalism is debated over. These are, primarily, that whether
religion should be seen as a public or private affair , and secondary, whether right to
religious freedom is a group right or individual right?

There seems a divide between the scholars throughout the world with respect to the issue
of religion being a private or public affair. On one hand are libertarian philosophers who
view religion as a matter of private affair. John Rawls through his concept of
‘comprehensive doctrine’ favors the view that religion should primarily be seen as a
private issue. Though, he argues that, there shall be harmonization of such
‘comprehensive doctrines’ of which religious belief is a part, so that it is fair to all the
citizenry. Moreover, he argues that the state should remain neutral to these views. 21
Others like Marshall take a more extreme stance against religion being a public affair.
He, by referring to what he calls, ‘the dark side’ of religion, argues that if religion is
made public then it would result into divisiveness, violence and persecution.22 On the
other hand, the communitarians argue that religious beliefs are intricately related to
individuals’ respect and dignity in the society. Hence, it should be treated as a public
affair.23

Religion is intertwined with state in several aspects, andmoreover, the relationship

between state and religion is dynamic. Religious changes can cause constitutional
changes, and changes of regime can use religion to power the political and constitutional
change. With the arrival of new religious groups, through immigration or mass
conversion, states that before had only to determine their legal relationship with a
predominant religion, now have to do so with several religions, which may serve for their
members as competing sources of authority with the state. Therefore, the right to
religious freedom becomes a disputed issue, and moreover, an issue of the clash between
individual claims and group claims.24 Further, the understanding that groups have the

21
JOHN RAWLS, POLITICAL LIBERALISM (Columbia University Press 2005).
22
William P. Marshall, Other Side of Religion, The, 44 HASTINGS LJ 843 (1992).
23
KYMLICKA, supra note 5.
24
ANATSCOLNICOV, THE RIGHT TO RELIGIOUS FREEDOM IN INTERNATIONAL LAW: BETWEEN GROUP
RIGHTS AND INDIVIDUAL RIGHTS (Routledge 2011). See also, REX AHDAR& IAN LEIGH, RELIGIOUS
FREEDOM IN THE LIBERAL STATE (Oxford University Press 2005)

20
power to exercise rights, which override rights of individuals, is antithetic to the whole
idea of rights.25

Uniform Civil Code

The idea of Uniform Civil Code has been debated in India since independence and has
passed through various phases which have been largely grounded in national
consolidation, equality and uniformity of laws, and now gender justice.26 This debate has
created an intellectual divide, wherein some scholars basing their arguments on one or
more of the afore-mentioned grounds are of the view that a Uniform code should be
implemented in India.27 While some by basing their arguments on the same grounds, and
some other socio-historical and legal realities and developments have opposed the idea of
Uniform Civil Code.28 There is a third category of scholars also who have left the
question open.29 In this dissertation, I intend to analyze the suitability of a uniform civil
code in India from the context of concept of multiculturalism and basic human rights
discourse.

1.3 Research Method

1.3.1 Statement of Research Problem

The diversity of India with respect to religions, faiths, and customs is immense and far
more than of any other country in the world. Theoretically, the idea of a nation and the
right to equality demands that the law should be the same for every citizen of the country.
But, the practicability of this idea of nation stands immensely disputed with respect to a
diverse country like India. The issue that, whether the country should have a uniform
civil code or space is to be given to religious and cultural sensibilities of various groups,

25
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Harvard University Press 1978). See also, JEREMY
WALDRON, LIBERAL RIGHTS: COLLECTED PAPERS 1981-1991 (Cambridge University Press 1993).
26
Peter Ronald deSouza, Politics of the Uniform Civil Code in India, 50 ECON.POLIT. WKLY. 51 (2015).
27
Shalina A. Chibber, Charting a New Path Toward Gender Equality in India: From Religious Personal
Laws to a Uniform Civil Code, 83 IND LJ 695 (2008).
28
Werner Menski, Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda,
The, 9 GER. LJ 211 (2008). See also, Flavia Agnes, Liberating Hindu Women, 50ECON. POLIT. WKLY. 15
(2015).M.P. Singh, On Uniform Civil Code, Legal Pluralism and the Constitution of India, 5 J INDIAN SOC
V (2014).
29
INDRA DEVA, SOCIOLOGY OF LAW (Oxford University Press, USA 2005).

21
has been fiercely debated one. This controversy is far from being settled and has in
contemporary India become a serious socio-political issue.30

This is a complex conundrum, and any non-serious engagement or solution is unlikely to

be acceptable. The Indian state does recognize and approves certain kinds of cultural
identities but the same are not absolute, rather they are reasonably restricted. It is on one
hand, untenable, to insist that in accordance with the idea of nation state only one law
should prevail all over the country for all religious and cultural groups. On the other
hand, some customs and provisions of various communitarian laws which constitute a
violation of basic rights of human beings. Hence, they seem to be in complete opposition
to the basic tenets of justice, and therefore must not be left alone on the pretext of ethnic
or religious identity.31

Since the independence of the country and along with the process of constitution-making,
the idea of a uniform civil code was hugely mooted in the Constituent Assembly. This
idea was, with wide acceptance and partial dissent, embodied as a directive principle in
India’s Constitution.32 Of course, being a directive principle it is not enforceable in any
court of law but it puts an obligation upon the state to adopt it as one of the principles for
administration, and hence, the state is expected to enact laws in its furtherance. The
underlying objective of this idea was to establish and build a united India with a national
identity, the need of which was felt due to then prevailing historical situations.

The two facets of the issue with respect to India or for that matter any other country make
it ever more complex. On one hand, it seems that personal laws of a community contain
certain inherent beliefs of the religious or cultural tenets followed by it which is
important and meaningful to the members of the community. Moreover, the same
meaningful beliefs cannot be provided by the citizenship of a state. On the other hand, it
can be argued that such sectarian laws are oppressive on individuals being in direct
conflict with individual autonomy. My attempt in this dissertation is to look upon this
issue of uniform civil code through a right-based perspective that is provided within a

30
Id, at 154.
31
Id, at 155.
32
The Constitution of India (1950),Art. 44.

22
progressive and liberal framework of Indian Constitution and other statutes. I intend to
delve on this issue within the broad perspectives provided by the multicultural theory.

1.3.2 Objectives of the Study

The present study is undertaken in light of the issue of multiculturalism, and keeping in
view the following broad objects:

1. To analyze and determine the suitability of the idea of Uniform Civil Code in a
multicultural country like India.
2. To study the effect of multicultural theory on group and individual rights.
3. To determine that whether the right to religious freedom is primarily a group right
or individual right.
4. To highlight the history of legal pluralism with respect to personal laws in India.
5. To determine the divergence/convergence between personal laws of Hindus and
Muslims in contemporary India.

1.3.3 Scope of the Study

The basic aim of this academic venture is to highlight the seriousness of the problem of
religious identity and Uniform Civil Code in a multicultural country like India. The study
after a right-based discourse around the issue of multiculturalism suggests that denial of
group rights amounts to denial and non-recognition of collective identityof groups.
Moving forth from this backdrop, the study has tried to show that right to religious
freedom is both, an individual as well as a group right. In the light of these two
observations, the discussion in the study approaching to the central issue of this work
which is that of suitability of a Uniform Civil Code in India concludes after analyzing the
present legal framework in the country that the same is undesirable in India. It seems
pertinent to declare at the outset that presence of deep diversity in India has forced to
keep the scope of the study limited to the analyzing of Hindu and Muslim personal laws
only.

1.3.4 Hypotheses

I posit the following hypotheses to guide my research:

23
 1. The rise of liberalism made individuals sole repository of rights and denied group
rights. The basis for the same has been that they are a threat to basic human rights
of equality, dignity and freedom. This has caused injustice to minority groups.
Furtherance of group rights rather being contrary to basic human rights of
equality, dignity and freedom would help in promoting and broadening the scopes
of the same. Hence, these minority groups should be advanced special and
differentiated rights in order to safeguard their identity.
2. The personal laws of different religious communities prevalent in India are not
only deeply rooted in their religious texts rather it is also intricately linked with
their socio-cultural practices. Anything having such deep and long roots cannot be
simply cut-off from its origins by a statute, nor could its influence that permeates
the entire socio-legal Indian field be made oblivion. Hence, the idea of Uniform
Civil Code promoted for the purpose of national integration and communal
harmony would if implemented result into contrary.

1.3.5 Research Methodology

In the completion of this work, doctrinal method of research was adopted. The work does
not involve any field or empirical study as relevant material is available in the printed
form. For the purpose of this work, extensive survey of textual materials, articles,
newspapers and write-ups was done and the same formthe basis of preliminary study
which was then expanded to cover a deeper survey of the literature. Constituent
Assembly Debates, relevant statutes and landmark decisions have been scanned and
analyzed in a systematic manner. The present work is thus based on the above referred
material and is an original contribution to the problem studied.

1.4 Chapterisation

The work has a fairly straightforward structure. Chapter 1 gives a general introduction of
the problem which is to be dealt in with. Chapter 2 gives an introduction to the concept of
multiculturalism keeping in view the recent developments in the field of law and political
philosophy regarding the same. The basic idea which furthers the inclusion of this chapter
is to discuss group rights as against individual rights. It further includes the discussion

24
about the liberal multicultural theory and its effect on the basic human rights. Finally, the
chapter focuses on the idea of multiculturalism as discussed in the Constituent Assembly
Debates of India and as embodied within the Indian Constitution.

Chapter 3 discusses the importance of religion and religious freedom as a fundamental

right. Moving forth from the stage set in by the preceding chapter, this chapter argues that
right to religious freedom is primarily a individual right. It further discusses the
framework of right to religious freedom as provided within the Indian Constitutional
framework. Chapter 4 has been entirely devoted to the practice of legal pluralism as
followed in India. It is argued that the policy of non-interference in religious laws has
been the state policy of Indian governments from long. Chapter 5 is the most important
chapter of this work as it directly refers to the problem of Uniform Civil Code which is
the primary objective of this research work. It discusses the grounds over which the
demand for Uniform Civil Code has been furthered in the Indian socio-political diaspora.
Further, the chapter analyzes the Hindu and Muslim Personal laws in contemporary India
in order to highlight the difference and similarities between the two. Finally, Chapter 6
which concludes this work ends with the note that an explicit Uniform Civil Code would
be undesirable for a plural and diverse country like India. The Chapter ends with
providing suggestions as to how a Uniform Civil Code, if desired in future, should be
implemented.

25
 CHAPTER 2

MULTICULTURALISM

The world today is more accommodative of socio-cultural differences as compared to the

past, this makes it an easy place to travel, live and settle. The result of this easy
acceptability within diverse cultures is heightened global migration which is both,
permanent and temporary. With these migrating humans, migrate their religion and
culture.1 Also, there are often present in all societies, some groups which are
marginalized or excluded on basis of their race, sex, caste, religion or culture. 2 This
necessitates for accommodation of these religious, cultural and other groups and helps
them flourish on an equal footing as with the receiving or majority culture, as the case
may be.3 It is this acknowledgement of the parallel existence of multiple cultures, which
provides the bedrock for multiculturalism. Generally, as Ivison puts forth,
“multiculturalism refers to a broad array of theories, attitudes, norms, practices and
policies which are directed towards providing public recognition of and support for
accommodation of non-dominant ethno-cultural groups”.4

The need for multiculturalismarose mainly because of following three reasons; firstly, the
idea of commonnational culture5 embodied within itself the necessity of oneness in issues
of national or local religion, ethnicity or culture. This idea of common national culture
was always thought of to have a shadow of the majority culture of any nation and thus it
excluded to take care of the cultural and other rights of the minorities groups present in
the nation-state. Secondly, the concept of secularism added more to the grievances of

1
MONICA MOOKHERJEE, MULTICULTURALSIM IN ISSUES IN POLITICAL THEORY (ED.) CATRIONA MCKINNON
(Oxford University Press, first ed. 2008) at p. 218.
2
Blacks in USA, Dalits in India and Womens in almost all societies are examples of such groups which
though belong to the same nation but have in the past and still in the present are facing marginalization.
3
Keith Banting& Will Kymlicka, Canadian Multiculturalism: Global Anxieties and Local Debates, 23
BRITISH JOURNAL OF CANADIAN STUDIES (2010).
4
Duncan Ivison, Introduction: Multiculturalism as a Public Ideal, INTRODUCTION. THE ASHGATE
RESEARCH COMPANION TO MULTICULTURALISM. ED. IVISON. SURREY: ASHGATE 1 (2010).
5
I have used this term ‘common national culture’ to refer to the modern western concept of a State which
recognizes a common culture manufactured through citizenship. Such common culture is based on the
concept of basic human rights, democracy, secularism, etc.

26
these religious minorities by looking at them with the same lens as that of majorities. 6
Treating minoritieson an equal footing as the dominant majority in any country conforms
to the corollary of equality which states that ‘inequality is, treating unequal equally’.
Lastly, the final nail in the coffin of the rights of such excluded groups was through the
development of the idea of individual liberty and freedom which recognized individuals
as the repository of rights.7

As of now, the multicultural theory which had started its journey in the arena of
contemporary political philosophy as a debate between Communitarian and
Individualistics has moved to the realm of libertarian political philosophy. I commence
this chapter by highlighting the basis of development of the multicultural theory and to
locate the issues on which present scholarly discourse is held within the area of
multiculturalism and to engage with the issues raised for and against it from the
perspective of basic human values. Next, I intend to highlight, through a right-based
discourse, the effects of multiculturalism on basic human values of equality, liberty and
individual freedom (Section 2.1). Henceforth, the chapter moves to highlight the recent
challenges posed against the concept of multiculturalism (Section 2.2). Next, I
contextualize the issue of multiculturalism in Indian diaspora by focusing on the CAD
and Indian constitutional framework (Section 2.3).

2.1 Multicultural theory: Debating Rights.

As the 21st century is moving towards its youth, the rising assertiveness of racial, ethnic,
religious-cultural, and other social groups can be witnessed world-wide. These excluded
groups are demanding, now with a greater intensity, recognition of their indigenous
religious and cultural traditions as well as opportunities to develop and maintain socio-
economic and political institutions necessary to preserve them. 8 The development of this

6
AKEELBILGRAMI, SECULARISM, IDENTITY, AND ENCHANTMENT (Harvard University Press 2014). He
argues that the concept of Secularism is insensitive to cultural minorities therefore the idea of
multiculturalism has evolved to fill in the lacuna created by the former. Further, he is of the view that in the
last decade or more, the concepts of multiculturalism and secularism rather than being supplementary to
each other, have become a tension for each other.
7
Id, at 44.
8
Adeno Addis, Individualism, Communitarianism, and the Rights of Ethnic Minorities, 67 NOTRE DAME L.
REV. 615 (1991).

27
latter notion of identity has given rise to what Taylor terms ‘politics of difference’9 or as
others have termed it as ‘politics of recognition’.10 These demands of recognition of
identity have further complexed the debate about multiculturalism, which now involves
deeper claims not only about the vexed issues of culture and religion, but also about basic
human values like equality, dignity, freedom, democracy and justice. As mentioned, the
term multiculturalism encompasses a range of very different issues 11; therefore, my
attempt here is to deal with the same independently under different heads. Also, it seems
pertinent at the outset to highlight that these issues are so intermingled with each other,
that they tend to go hand in hand. Thus, it is obvious that they shall overlap when being
discussed under different human values.

2.1.1 Multiculturalism and the issue of Equality.

The history of human civilization and evolution is marked with struggle for equality. 12 In
the past this struggle for equality was concerned only with economic equality. But
presently, in modern societies, prevalence of two types of inequalities can be witnessed,
one of which is the past long-driven struggle for economic equality, and the other one
which is comparatively younger owes its genesis to the above-mentioned ‘politics of
difference/recognition’ is termed as status inequality.13 The basis of the multicultural
theory is in this newer version of inequality. The multicultural theory/approach has been
grounded on the idea of group/collective rights which has been evolved to fill in the
lacuna developed by individual rights. I attempt here to discuss this status inequality
through the idea of group and individual rights and in the light of development of
multicultural theory by bifurcating them under two different heads which I term as
‘Inter-group’ and ‘Intra-group’ status inequality.
9
Charles Taylor, The Politics of Recognition, 98 NEW CONTEXTS OF CANADIAN CRITICISM (1997).
10
Nancy Fraser, Social Justice in the Age of Identity Politics, 72 GEOGRAPHIC THOUGHT: A PRAXIS
PERSPECTIVE (2008). See also, Austin Sarat and Thomas R. Kearns, ‘Responding to the Demands of
Difference’ in Cultural Pluralism, Identity Politics and the Law, published in USA by The University Of
Michigan Press, 2002.
11
Ivison, supra note 4. The prospect for multiculturalism both, in theory and practice, varies from place to
place. This is because of differing contextual problems.
12
Karl Marx divides history on economic basis and goes on to argue that human history has been the
history of class struggle. Thus, there has always been a quest for equality, especially from the weak
economic classes of the society.
13
WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY: AN INTRODUCTION (Oxford: Oxford
University Press 2002).

28
2.2.1.1 Status inequality from an Inter-group perspective

The traditional model of “citizenship as rights” provided all with equal rights. 14
Marshall’s idea was that common national culture15 would eventually help in integrating
people through a common thread and was intended to be beneficial for both, the State as
it would be easier to govern a society which is more uniform and has more common
elements, and the excluded groups as they could have an equal set of social rights as that
of non-excluded groups.16 Marshalls’ conception of achieving this common national
culture failed as they stressed more on economic inequality and overlooked to greater
extent the social inequality. Before this model of ‘citizenship-as-rights’ was disputed, it
had already made some ground in most of the western and other national States. Lately,
this idea of common culture was taken as a threat by the minority groups to their religious
and cultural identity17 as it has ultimately resulted into ‘assimilation’ into the national
culture (which most often has to have a glimpse of majority culture) rather than
‘integration’ (which is accommodating different religious-cultural groups equally in the
nation, while still having their cultural differences).18 The multicultural theorists have
argued that the common rights of citizenship cannot answer the needs of these groups.
Another fact is that these minorities have to struggle harder to match the level of
majority, especially in the case of the former’s societal status. The reason for the same is
that they risk a ‘stable cultural structure’.19 Therefore, justice would be done only when
something more is done for the minorities rather than simply providing with the same
rights as citizens belonging to the majority group. Also, another claim made by the
defenders of group rights from the perspective of right to equality is that when these

14
Id, at 343-347.
15
Marshall’s idea of common national culture referred to some basic common social & economic rights
which would be available to all the citizens in any Nation-State. For more, see, TH Marshall, “Citizenship
and Social Class”, in TH Marshall, Class, Citizenship, and Social Development.Essays by TH Marshall.
New York: Anchor Books (1965).
16
KYMLICKA, supra note 13, p. 327.
17
Id, at 327.
18
MONICA MOOKHERJEE, supra note 1.
19
WILL KYMLICKA, LIBERALISM, COMMUNITY, AND CULTURE (Oxford University Press 1991). According
to him, cultural structure is an inherited set of values and customs, and is necessary for developing personal
autonomy or the capacity of meaningful choices. See also,Joseph Raz, Multiculturalism: A Liberal
Perspective, DISSENT-NEW YORK- 67 (1994).

29
majority groups have the right to their culture then why they should be denied the same.
It is for these reasons that these excluded groups demand for ‘differentiated citizenship’.20

The thrust behind these arguments in favor of multiculturalism is the idea of

‘collective/group rights’ and ‘special and differentiated status’ of the minorities. The
counter for the above conception is obvious to come from libertarians who give utmost
primacy to individual liberty. These have argued, firstly, that not all cultural groups have
liberal norms, thus, if cultural autonomy is given to different cultural norms, then there
would be another problem of how to react if a group’s beliefs and practices are
illiberal.21Secondly, the other set of problem arise from within a liberal framework and
the foremost argument made here is that if these minority groups adhere to the principles
of liberalism, why do they need such ‘special or differentiated rights’? The first counter-
claim brings the debate to the realm of Intra-group status inequality.

2.2.1.2 Status inequality from an Intra-group perspective

The question of intra-group status inequality is raised in opposition to multicultural

theories by arguments based on two grounds, one is individual autonomy and the other is
gender equality. It is pertinent here to mention that these issues fall within the liberal
framework of multicultural theory.

With respect to individual autonomy, firstly, libertarians insist that individuals should be
free to decide their own conception of good and should not be made to follow the
principles of good life as followed in the culture to which they belong. 22 They are of the
view that individual comes before the community. On the contrary, the defenders of
‘collective rights’ keeping themselves in opposite position argue that individuals are the
product of group choices. Secondly, the argument for individual autonomy is further
substantiated by offering the view that if any individual chooses to attach himself with
any particular culture then it is them who should be held responsible for their choices,
and not expect others to subsidize their choice. This argument has been disputed again by

20
Iris Marion Young, Polity and Group Difference: A Critique of the Ideal of Universal Citizenship, 99
ETHICS 250 (1989). He has termed this demand for recognition by minorities as differentiated citizenship.
21
MONICA MOOKHERJEE, supra note 1.
22
KYMLICKA, supra note 13.

30
the multiculturalist scholars by putting forth the rationale that the culture in which people
are raised in should not be seen as their voluntary choice rather it is their undesired
circumstance.23

With respect to the issue of minority groups adhering to the principles of liberalism, the
libertarians argue that if they do so, then why is there a need for such ‘special or
differentiated rights’? The answer to this claim made by libertarians can be better
explained in the light of “liberal multicultural theory”. 24 This theory argues that “an
individual’s choice and ability to make good choices is intimately tied up with access to
their culture, with the prosperity and flourishing oftheir culture, and with respect
accorded to their culture by others”.25Multiculturalism promotes this cultural flourishing
and mutual respect. Going by this rationale and the problem of ‘stable cultural structure’
faced by the minorities, providing them with ‘differentiated/special rights’ seems
justified. Also, if the minorities are compelled to abandon their culture and adhere to
‘common culture’ (which will substantially deviate from minority culture and is expected
to resemble the majority culture), then it shall be an unjust sacrifice to be made by
minorities as the majorities do not have to do so.26

Another issue related to equality in the multicultural theory is that of gender equality.
Cultures as shown above, provide many benefits such as the sense of belonging, while at
the same time it can be oppressive.27 Thus, the worry for multiculturalists is that they are
accused of supporting injustices done against groups which lack power. 28 Women as a
group are one of them. Okin in this respect raises an important question that, Is

23
Id, at 339.
24
Id,at338-343. He divides the development of multicultural theory in three different stages, the first stage
engages the debate around ‘collective rights vs. individual rights’, see the discussion in this perspective
under the head ‘Status inequality from an Inter-group perspective’, the second stage as described by him
is the debate over multiculturalism in a liberal framework and the third and final stage is ‘multiculturalism
as a response to nation-building’.
25
Id, at 339.
26
Id, at 340. He argues that it is unreasonable to expect minorities to bear this cost of losing their culture
and identity, when members of the majority face no comparable sacrifice.
27
Martha Nussbaum & Susan Moller Okin, A Plea for Difficulty, IS MULTICULTURALISM BAD FOR WOMEN?
(1999).
28
MONICA MOOKHERJEE, supra note 1.

31
Multiculturalism bad for women?29 Therefore, the problem that is raised for liberal
multicultural theorist is that how to react if a groups’ culture and its belief and practices
are illiberal. An efficient solution for this problem is given by Kymlicka, giving cultural
groups‘differentiated/special rights’ does not imply that these rights should be unlimited.
Therefore, distinction is to be made between ‘external protection’ (protecting a minority
cultural society from the policies of majority culture) and ‘internal protection’ (group
rights that limit the individual liberty of people within a culture).30

2.2.2 Multiculturalism and the issue of Individual Freedom and Liberty

As stated at the outset, the questions regarding multiculturalism are so complex and inter-
related that it is obvious for them to overlap. Therefore, the arguments as to the issues
may remain same. It is only the way they are answered, changes the perspective.

The multicultural theory which has its ground in the concept of ‘group rights’ is at times
accused for being anathema to the concept of ‘individual liberty and freedom’. As
mentioned earlier, libertarians insist that individuals should be free to decide their own
conception of good and should not be made to follow the principles of good life as
followed in the culture to which they belong. Kymlicka, basing his arguments on the
same premises of individual liberty, goes on to defend “group rights”. He argues that,
freedom is usually understood to require, firstly, the absence of external interference
which he terms as ‘external protection’ and, secondly, the presence of certain enabling
conditions (e.g. a guaranteed level of education and material welfare). Kymlicka argues
that beyond these two requirements, individual freedom also requires a settled framework
of meaningful choices and life-options, which, in turn, requires that individuals have
access to a societal culture with which they identify as an expression of who they are.31
Such a societal culture-shared language, institutions, customs, traditions, etc., is required
in order to provide its members with a framework of such a shared life-world of common
culture and membership. On these grounds, Kymlicka argues that liberal freedom always

29
LetiVolpp, Talking“ culture”: Gender, Race, Nation, and the Politics of Multiculturalism, 96 COLUMBIA
LAW REVIEW 1573 (1996).
30
KYMLICKA, supra note 13.
31
WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS (Cambridge
Univ Press 1995), pp 83-90.

32
requires access to 'one's own' societal culture, and, furthermore, that the liberal ideal of
equality also requires that such access be equal access to one's societal culture.32 Such
equal access implies that a cultural minority facing unequal access would constitute
unequal freedom and thus violate liberal ideals. Group rights are thus necessary to
provide cultural minorities with both the freedom and equality of freedom that are central
to liberalism.33Further, he also argues that this august right to individual freedom and
liberty need not to be worried about, as long as everyone has the right to exit- that is, the
freedom to leave their culture if they are dissatisfied by it.

So far, I have attempted to show by highlighting the scholarly discourse that the idea of
multiculturalism which was thought of being harmful to human values like equality and
individual liberty and freedom has contrarily promoted the same. Therefore, the idea of
multiculturalism is not an envious form of discrimination rather it is a compensatory
policy for past discrimination done against these minorities and excluded groups.

2.2 New Challenges to Multiculturalism.

The critics of multiculturalism argue that it is unjust for any State to ascribe rights on the
basis of membership in any group which creates stratification among citizens. Thus,
according to them, justice is done only when the State policies are neutral. This view has
been refuted by multiculturalists in two ways. Firstly, that State institutions are not
indifferent to religion and cultural identities, but are tilted towards the national (majority)
culture. Secondly, certain interests like identity, language, culture have been ignored by
liberal theories of justice which needs to be answered now. And thereby claim that the
multicultural theory is consistent with the ideals of justice.34

Now as this argument of critics of multiculturalism alleging the concept of being against
the ideals of justice has failed. They have identified for themselves a new ground for
opposition which is that of social and political unity. This new criteria for opposing
focuses not on the issues of justice rather on the way that multicultural approach tends to

32
Id, at109-10.
33
Gerald Doppelt, Illiberal Cultures and Group Rights: A Critique of Multiculturalism in Kymlicka, Taylor,
and Nussbaum, 12 J. CONTEMP. LEGAL ISSUES 661 (2001).
34
KYMLICKA, supra note 13, p. 365.

33
damage the long held social and political unity. The underlying rationale for the same is
that multiculturalism involves ‘politics of difference’, and any measures which tend to
increase divide are bad for public life.35 This argument has been also given an economic
tint by some scholars. These have argued that emphasizing too much on cultural
differences will have a negative effect on the struggle for economic equality. 36Kymlicka,
on the contrary has argued that, if the claims of critics of multiculturalism of the same
being harmful to social unity is unacceptable as it is not supported by any kind of
empirical evidence. He goes further to argue that even if the latter hypothesis is accepted
then there can be counter-hypothesis that absence of multiculturalism also loosens the
bonds of social unity. He bases this argument by citing the examples from Canada and
Australia.37

With respect to the issue of political unity, the claims of some of national minorities in
some countries for having self-government, building separate institutions and identity,
conform to the phenomenon of competing nationalism within a single state. Dealing with
this seems to be a herculean task for any state. Therefore, concluding that
multiculturalism is dangerous to social or political stability or vice-versa is disputed.

2.3 Multiculturalism in India.

As mentioned earlier, the prospects for multiculturalism both, in theory and practice,
varies from place to place, the reason being differing contextual differences. In India, the
problem of multiculturalism arises, particularly arises because of religious diversities. In
this part, my focus shall be to highlight on the multiculturalist model adopted by India
through the Constitution. Therefore, my starting point in this part shall be from the
Partition of India into two separate nations. I shall mostly rely on the Constitutional
Assembly debates for this purpose and then go on to determine that whether model of
multiculturalism adopted by the Indian Constitution is in true sense multicultural or not.

35
Id, at 366.
36
See, BRIAN BARRY, CULTURE AND EQUALITY: AN EGALITARIAN CRITIQUE OF MULTICULTURALISM
(Harvard University Press 2002).
37
KYMLICKA, supra note 13, p. 367.

34
2.3.1 Historical Background

The history of Indian sub-continent is evident of the fact of its religious and cultural
diversity.38 It is the land which has accommodated along with its historical, social and
cultural development, a number of religions and cultures within it. This latter feature of
the Indian sub-continent has proved both, enriching and fatal, for the same. Enriching, in
the sense that, it has given to the totality of Indian culture a deep level of diversity, for
example, the art, architecture, tradition and culture of India has seen a widespread
diversity because of historic presence of different religions and cultures which brought
with them their own set of cultural heritages.39 Fatal because, this diversity has led to the
creation of various social strata on different basis, these stratifications are both, inter-
religion and intra-religion.40 These latter stratifications have been and still are dominant
in the Indian diaspora, and have been since long, for time and again, been raised as a
controversial socio-political issue. The inter-religion stratification became more
controversial as the major Muslim population in India migrated to Pakistan and East
Pakistan (present Bangladesh), which was a country built on Islamic religious identity.
The leftover Muslims in India, therefore, became a minority religious group after the
Independence of India. The core problem for multiculturalism in India is thus with
respect to religious diversity.

2.3.2 Politics of Multiculturalism in the Constitutional Assembly Debates.

In 1947, two very important events left inevitable marks in Indian history, these were,
India’s Independence from British rule and its Partition. The constitutional assembly was
given the task of devising a framework for future nation-building by writing a
Constitution for India which was to deal with all aspects of public life. Each and every
player in the political scene which had evolved over the colonial period played their part

38
A.L. BASHAM, A CULTURAL HISTORY OF INDIA (Oxford University Press, Tenth Impression, 2006. ed.
1983).
39
Id.
40
For more discussion on casteism in India, See GHANSHYAM SHAH, CASTE AND DEMOCRATIC POLITICS IN
INDIA (Orient Blackswan 2004). Creation of various social strata, both intra-religion and inter-religion were
not so significant in Indian sub-continent before the advent of Britishers barring the exception in Hinduism.
Intra-religion strata’s, prominently known as caste system was peculiar only to Hindu religion. Further, this
is not to argue that there was total harmony before theBritishers gained power in India.

35
during the debate. The key players, therefore, were proponents of Universalist
nationalism, the Hindu traditionalist and other minority representative groups.41 Though
all the members gave primacy to national unity and identity but they were suggestive of
different approaches to achieve the same. The Universalists led under Nehru, deviating
from Gandhi’s view of multiculturalist India, were of the opposite view of a nation based
on ethnic feelings or with religious communities having separated identity. The same can
be discerned from this extract:

“The general Muslim outlook was thus one of Muslim nationalism or Muslim
internationalism, and not of true nationalism. For the moment the conflict between the
two was not apparent.

On the other hand, the Hindu idea of nationalism was definitely one of Hindu
nationalism. It was not easy in this case (as was not in the case of Muslims) to draw a
sharp line between this Hindu nationalism and true nationalism. The two overlapped
each other as India is the only home to Hindus and they form a majority there. It was
thus easier for the Hindus to appear as full-blooded nationalists than for the Muslims,
although each other stood for his own particular brand of nationalism.

Third, there was what might be called real or Indian nationalism, which was something
quite apart from these two religious and communal varieties and, strictly speaking, was
the only form which could be called nationalism in the modern sense of the word. In this
third group there were both Hindus and Muslims and others.”42

This Universalist and individual-centric view of Congressmen was discernible from

speeches of number of Congressmen. To exemplify this view, following is an excerpt
from G.B. Pant’s speech before the Constitutional Assembly:

“ The individual citizen who is really the backbone of the State, the pivot, the cardinal
center of all social activity, and whose happiness and satisfaction should be the goal of
every social mechanism, has been lost here in that indiscriminate body known as the
community. We have forgotten that a citizen exists as such. There is the unwholesome,

41
CHRISTOPHE JAFFRELOT, RELIGION, CASTE, AND POLITICS IN INDIA (Primus Books 2010).
42
Jawaharlal Nehru, The Discovery of India. 1946, DELHI: OXFORD UP (1989).

36
and to some extent a degrading habit of thinking in terms of communities and never in
terms of citizens”.43

Conforming on the same vein, B.R. Ambedkar who was the chairperson of constituent
assembly, declared that:

“Our difficulty is how to make the heterogeneous mass that we have today, take a
decision in common and march on the way which leads us to unity”. Ambedkar called for
equality and individualistic principles in the western sense. Thus, recognizing an
undifferentiated individual as being the basis for the nation obviously implied an idea of
culturally uniform nation.

This stance of Universalists was contrary to the view of Hindu traditionalists or other
religious minority groups, particularly Muslim representatives. These too had their focus
on national unity but along with focused on collective/group rights. The Hindu
traditionalists did not oppose this conception with a great force as they opined that their
being in majority would obviously make the Indian national culture a reflection of Hindu
culture and tradition. But, the Muslim representatives argued that their community should
be provided special rights as they chose to remain in India rather than go to Pakistan.
Their basis for such demands was that they had suffered greatly from the post-partition
riots and thus were looking for institutional protection from the overwhelming majority
of the Hindus.44

In response to these demands, the Congressmen who were both, the Universalists and the
Hindu traditionalists, requested the Muslims to forget about their religious identity.
Pant’s request to Muslims representatives was: “Your safety lies in making yourselves an
integral part of the organic whole which forms the real genuine State”.45 This view
corresponds closely to that of the Hindu traditionalists. For instance, K.M. Munshi, an
influential member of Constituent Assembly and a Hindu traditionalists believed that the
Partition was a foregone conclusion and declared that “We have now a homogeneous

43
Constituent Assembly Debates, 1989, Vol. I: 332.
44
JAFFRELOT, supra note 41.
45
Constituent Assembly Debates, 1989, Vol. V: 223.

37
country…...”46Sardar Patel who headed the Minority Committee expressed that: “those
who want that kind of thing have a place in Pakistan, not here. Here, we are building a
nation and we are laying the foundation for One Nation, and those who choose to divide
again and sow the seeds of disruption will have no place, no quarter, here, and I must say
that plainly enough”.47 It was not only that such speeches of stressing on unity and One
Nation were only made by Hindus. Unexpectedly, some support also came from Muslim
representatives also who favored to the prospect of building a new nation along secular
lines.48 But during all these, they were ignorant about the socio-political reality and that
the Partition had left the Muslim community in a bad situation.

These debates show that how limited Indian multiculturalism was, particularly because
the Muslims had lost privileges which they had enjoyed for decades in terms of political
representation on behalf of the nation-making process. The restrictions placed on
multiculturalism were largely because of the rejection of communities in institutional
framework, on the one hand, by the Hindu traditionalists who considered ‘communities’
to be synonymous with religious minorities, and on the other, by the supporters of the
universalist approach who stressed upon individual as the basis of the nation. There was a
definite tilting of the scales in the favor of unity. Though, on other issues like national
language, the civil code, nationality and the national symbols, cultural diversity was
given protection.49

2.3.3 Indian Constitution: A Multicultural approach

During the process of drafting of Indian Constitution, the Constitution-makers had before
them three models to deal with the vast diversity of the country. First model had its basis
in strict liberal form of nation-state. It relied on the logic of democracy, industrialization
and judicious public policies to assimilate minorities into a cohesive nation-state. The
second model was that, India could have pursued a corporatist strategy where different
communities had autonomous status and ran the state as a partnership. Third was a model
which was to combineliberalism and pluralism, and superimposing a liberal state on
46
SUPRA NOTE 44, Vol. I: 546.
47
Id, at 271
48
JAFFRELOT, supra note 41.
49
Id, at 11.

38
relatively autonomous religious communities. The drafters of the Constitution adopted
the third model and thus,India became one of the first major democracies in the world
which recognized and provided for the right of cultural collectivities which formed a part
of the country. Ensuring individual as well as group rights in the constitutional
framework, accentuated cultural diversity and the even treatment of all Indian citizens
were declared to be the goals of the new republic.50

The Constitution of India establishes an institutional structure and principles that would
allow diverse people to live together as citizens of India. The Indian state is based on a
Constitution whose secular character has been re-affirmed by an amendment to its
Preamble.51 Confronted with an array of demands coming from various groups of the
Indian society, the Constitution articulates a manifold response to define the constituent
elements of multiculturalism. First, the principle of religious freedom, which provides
every citizen the right to freedom of conscience and the right to profess, practice and
propagate religion.52 Second, the Constitution does not give special status to any religion
in the state.Third, the principle of non-discrimination on grounds of caste, place of birth,
residence or religion guarantees equal citizenship.53Moreover, further protection is given
for the protection of minorities in the sense that they have a fundamental right to
conserve their distinct language, script or culture.54 This means that if a cultural minority
wants to preserve its own language and culture, the state cannot by law impose on it any
other culture belonging to the local majority. Both religious and linguistic minorities are
protected by this provision. The Constitution further bestowsa positive, directional role
upon the state in this respect by directing that every stateis to provide adequate facilities
for instruction in the mother tongue at the primary stage of education of

50
ZoyaHasan, Gender, Religion and Democratic Politics in India, 31 THIRD WORLD QUARTERLY 939
(2010).
51
The 42nd Amendment Act of the Constitution of India, 1976 included socialist and secular as basic
charactestics of the Indian State.
52
The Constitution Of India (1950).
53
Id, See Arts.15 & 16.
54
Id, Art. 29(1).

39
childrenbelonging to linguistic minority groups, and empowers the President to issue
proper direction to any state.55

2.4 Conclusion

The rise of liberalism, on one hand, promoted the cause of individual rights around the
globe. While, on the other, it denied group/collective rights. Primary reason for the same
was that whole idea of rights was to curb down the power of collectivism. The
multicultural discourse has again brought forth the worldly societies, the issue of group
rights (minority rights). It is now debated by scholars that providing group rights would,
rather than curbing basic human rights, promote the same. In this chapter, I have through
a right-based discourse tried to argue that, nevertheless the group rights are important for
protecting ones’ identity but at the same time, it is also important that individual rights of
members of various communities should be duly protected. In the next chapter, I deal
with the issue of religion and religious freedom as religious identity is one of the issues
around which the idea of multiculturalism has been debated. Moreover, it is the issue of
religious identity around which the multicultural debate has been discussed around in
India.

55
Id, See Art. 350 A & B.

40
 CHAPTER 3

RELIGION AND RELIGIOUS FREEDOM

The preceding chapter discussed in the light of multicultural theory that group rights
which have been ignored to a great extent now need to focused upon. The reason being
that minority groups have to face greater challenges within a territory in comparison to
majority groups. Moving forth from this backdrop in this chapter, I discuss the
importance of religion and right to religious freedom. Religion as a socio-political issue is
comparable to none as on the one hand it is something of deep reverence and on the other
it is at the focus of severe criticism. It has been, for some, a path to salvation or a light for
mankind to attain eternal bliss and for others it has been an opiate. 1 Without skepticism,
perspectives and viewpoints regarding religion may vary profoundly, oscillating between
atheism and theism, but there seems to be a universal human tendency towards having a
viewpoint towards religion. So, it goes without saying that the role of religion in
individuals’ life and society is unique and important at the same time. Therefore, the right
to religious freedom is of utmost importance and it is the reason why it finds a place for
itself in the realm of basic human rights. It is because of this that religion occupies a
place in law distinct from other civic organizations, and guaranteeing its freedom is a
more complex legal matter than ensuring other freedoms.

The law on freedom of religion should be seen in the light of the unique role which
religion plays as a source of authority independent of and at the same time, competing
with state authority. A state might deal with religion as a competing source of authority in
one of two ways. First, it may view religion as a threat to itself that must be curtailed and
second, it may co-opt religion for its own needs. Religion may serve an important part in
the formation of national identity and its unity and integrity. This continuing struggle and
engagement of religion and state is reflected, in different ways, in almost all modern
constitutions.2This chapter is aimed towards exploring the justifications of religious

1
M. FRANCIS ABRAHAM, CONTEMPORARY SOCIOLOGY: AN INTRODUCTION TO CONCEPTS AND THEORY
(OUP India 2006).
2
ANATSCOLNICOV, THE RIGHT TO RELIGIOUS FREEDOM IN INTERNATIONAL LAW: BETWEEN GROUP RIGHTS
AND INDIVIDUAL RIGHTS (Routledge 2011).

41
freedom. Understanding the reasons for the recognition of freedom of religion as a human
right is necessary for the resolution of legal conflicts surrounding the application of this
right. First, the difference between a group right and an individual right is explained.
Next, I argue that though there are justifications for recognizing religious freedom as a
group right, but the same are not of the stature that they may justify the group rights to
supersede individual rights (section 3.1). I have also attempted to depict the relationship
amongst right to religion to that of right to equality and liberty, respectively, and as
manifested in the legal protection accorded to this right by exploring the underpinnings in
liberal theory for protecting religious freedom (section 3.2). Further, I have discussed this
whole issue of religion and religious freedom in respect to India (section 3.3).

3.1 Freedom of Religion: Group Right or Individual Right?

It is the individual who is the sole repository of human rights not the group or community
to which he/she belongs. The right to freedom of religion or belief should be understood
and protected primarily as an individual right and only in furtherance of the same,
itshould be protected as a group right. Group dominance over individuals, like state
dominatingover individuals, may be justified in certain cases by other reasons, but not by
assertion of rights. The exercise of rights depends on recognizable decisions by
autonomous individuals.3Arguing that what will be recognized is whatever the group
decides concerning its membership and procedures is similar to solving a circular
reasoning. Rights cannot be accorded to groups because there is no single and
unchallenged way in which the bearer of the right (the group) may exercise the right
though this argument is not undisputed.4Therefore, it is argued alternativelythat even if
rights, including religious freedom, can be attributed to groups, rights of groups to
religious freedom should not be allowed to override individual rights.

3.1.1 Difference between Group Rights and Individual Rights

Religion is deemed to be a social institution.Hence, its existence implies the presence of

plurality of individuals. A single person can hold a belief, but not a religion.
3
Id, at25.
4
As I have tried to show in Chapter 2 dealing with Multiculturalism that group rights are equally important
as individual rights but this conception is not true with all human rights.

42
Therefore,the argument that right to freedom of religion is a group right even if the right
of freedom of belief is an individual right seems to be based on an ambiguous
understanding of the distinction between an individual right and a group right. The mere
fact that more than one person is needed for the exercise of a given right is not a
sufficient condition for making that right a group right. For example, freedom of
association is a right provided to individuals but it cannot be practiced alone. On similar
veins, freedom of expression is also an individual right but the same cannot be
meaningfully practiced alone.The conception of a group right means something more
than aggregate sum of individual rights; it means a right of the group as such. A group
right would be a consequence of rights of individuals but would not be reducible to an
aggregate of individual rights.5An example of the same can be following: a group right is
a right of the group that, by its nature, must override the rights of the group’s individual
members. For example, KhapPanchayats in India, particularly in the state of Haryana
have a right to decide over internal legal disputes and hence make a distinct legal system
for a specified community (In the case of KhapPanchayats, the community governed is
Jats).Such a legal system, in order to operate, must override the freedoms of its litigants
in that they must accept its verdict. The right to a legal system is therefore a right of the
groupwhich is not reducible to rights of individuals within it. So it is these types of rights
that belong to the group as a whole and whose exercise may impact individuals within the
group, that must be justified by those arguing for recognition of group rights.

While such rights might be accorded to the groups by states, however, there is no
justification for considering them to be rights as such. As Waldron points out: “if the
whole point of rights for individuals is to place limits on the pursuit of some communal
goal, it will hardly do to characterize that goal as a community right which may then
conflict with, and possibly override, the rights of individuals.”6 Rights are promoted as a
way to counter the defects of utilitarianism,7 but providing the group the power to
exercise rights, which would override individual choices, is itself utilitarian. It is on the
face of it unreasonable to set up rights as a response to a communal goal, and then define
5
SCOLNICOV, supra note 2, p. 25.
6
JEREMY WALDRON, LIBERAL RIGHTS: COLLECTED PAPERS 1981-1991 (Cambridge University Press 1993),
p. 364.
7
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Harvard University Press 1978).

43
the communal goal as a right. Another issue that stems up from considering the right of
religious freedom as a group right is that of identification of such groups and the criteria
to identify them. Scolnicov identifies three criteria for recognition of groups: First, the
self-identification approach but he argues that if this approach is followed then the
supremacy of individual right over group right is an implied consequence. Second, a
different possible principle is that of definition of the group by the group itself.But this
would again be problematic as it may lead in further inequalities which are intra-group.
Third approach he suggests to the definition of group membership is that of external
definition by means of objective criteria. Undoubtedly, such criteria of defining a
religious group will be controversial because a religion, by its nature, is always defined
from within rather than from outside. Thus, any imposition of external criteria can itself
be perceived as an infringement of religious freedom.8Thus, the very first step of
decision-makingas to who belongs to a group and who does not is highly controversial,
subjective and open to manipulation. Hence, a disputed platform upon which rights can
be distributed.

3.1.2 Religious Freedom as Group Right: Justifications and Rebuttal

While the idea of recognition of group rights seems problematic but if we do not
recognize group rights, including religious group rights, are we not being unjust? Can one
deny the acceptability of group rights without rejecting the legitimacy of states?9
According to this line of argument, the state itself exercises collective rights which may
override individual liberties (such as through the powers exercised by the state to
effectuate the criminal justice system). However, this argument for group rights must be
rejected. Historically, rights were defined as rights of the citizens against the state. The
liberal concept of rights was developed primarily as a defense of the individual against
the exercise of state power.10 State sovereignty and the justification of the state’s

8
SCOLNICOV, supra note 2, p. 26-28.
9
Christopher Heath Wellman, Liberalism, Communitarianism, and Group Rights, 18 LAW PHILOS. 13
(1999).
10
J. Locke, Two Treatises of Government, Ed. M. Goldie, Rutland, VT: Tuttle, 1992; J. Locke, SOME
THOUGHTS EDUC.

44
legitimacy in wielding power against its citizens are not rights-based.11 While the concept
of rights has been broadened as presently it rights can be enforced against private parties,
but still using it to mean the anathema of its original meaning nullifies and renders it
void. This leads to the issue that whether the right to religious freedom can be justified as
a group right or if the same is considered as group right then should it supersede the
individual right to religious freedom? In the light of above-mentioned objections to the
possibility of recognition of group rights, the question that can group rights ever be
recognized, becomes important.

It has been suggested by some scholars that some concerns of groups are not addressed
by the classic formulations of human rights and therefore merit recognition as group
rights.12 The justifications provided in defense of group rights can be clubbed as follows:

i. Compensating for historical wrongs is a valid consideration that may be taken

into account when interpreting and according right of religious freedom as group
rights. In such cases it can be argued that the right in question can only be
accorded to the groups which have suffered in the past. Such a right based on
historical considerations can only be attributed to a community, not an individual.
This makes such rights a communitarian right against a state and not a right
against individuals, and hence is not in conflict with the rights of individuals
within the community.13
ii. If the groups are not provided with religious and cultural rights then there is a
fear of them being assimilated in the national culture or religion and will be
forced to lose their distinct identity. Undoubtedly, this may be the case but
another problem that may arise from considering right to religious freedom as
group right may be that of Intra-group violation of rights.14 The justification of
survival of the community is aptly applicable to the right of religious freedom as
religious laws are often essential to the survival of the religion in question.

11
On the contrary the idea of state power is built on the conception of collective will and social contract.
See for this, the social contract theory of Hobbes and Rousseau.
12
See, WILL KYMLICKA, CONTEMPORARY POLITICAL PHILOSOPHY: AN INTRODUCTION (Oxford: Oxford
University Press 2002).
13
SCOLNICOV, supra note 90.
14
See under the head ‘Status Inequality from an Intra-group perspective’ in Chapter 2.

45
 Indeed, they are an inherent component of some religions. However, the counter-
argument that this justification should not override individual rights would also
apply to religious groups. The reason being that religious laws often do not
adhere to liberal conception of rights.15
iii. The most crucial argument which is put forth as a justification is that particular
rights which go beyond the rights of individuals, like administrative autonomy
and special forms of participation in public decision making, are essential for
protection of minorities.16 Now if such rights are accorded to religious groups, it
would give them an enhanced position in the law-making sphere, either over its
own members or in the formation of law over all citizens. For instance,
administrative autonomy if given in realm of matrimonial cases, it is to be in
conflict with individual rights, particularly the rights of dissenting groups and
other marginalized groups within the broader religious group. Further, providing
special forms of participation in public decision making to religions is also a
breach of political rights of individuals.
To this problem, Waldron suggests a solution, according to which group rights
may be asserted externally (against claims from outside the group) but not
internally (when there is a direct conflict between group and individual).17
However, Waldron’s solution may be satisfactory regarding other rights, it is not
so in the case of the right of religious freedom. The reason for this being that
substantial demands made by religious group aremostly directed internally.
Religions, by definition, mostly address themselves and their precepts to their
members. Recognizing religious group rights except when directed internally
takes out a large part of what having a group right means for religious groups.
The position of religious groups can be contrasted with that of other groups, such
as racial or ethnic groups. Precepts directing how members must behave are not
an inherent part of racial or ethnic groups, but are part and parcel of religious
groups. The suggestion of limiting recognition of group rights to external rights
would solve some of the problems associated with group rights. However, even if

15
SCOLNICOV, supra note 2.
16
See, Peter Leuprecht, Minority Rights Revisited: New Glimpses of an Old Issue (2001).
17
WALDRON, supra note 6, p. 366.

46
 a compromise recognizing externally directed group rights is be a useful solution
for recognizing the rights of other groups, it is certainly not so for religious
groups.18

Going by the above discussion with regards to right to religious freedom as being group
rights suggests that though it seems giving such rights to the groups is anathema to the
idea of rights which were developed in the first place to limit collective right. Hence, not
only is such conception of right to religious freedom incoherent to the concept of
individual right, it also is disputed as to how to identify such groups upon whom such
rights could be bestowed upon and to what extent. Therefore, it is not inappropriate to
conclude that right to religious freedom is primarily an individual right and secondarily a
group right.

3.2 Right to Religious Freedom and the Issues of Equality and Liberty.

Right to religious freedom is in itself a unique right as it possesses two facets of religion.
First, it is an individualistic perception of religion and is related to the liberal view. This
entails freedom of religion to individuals.The second conception isrelated to a
communitarian view which focuses upon the identity aspect of religion. This entails
equality between religions, and relates religion to groups. An individual’s right to change
religion is protected, but so is his right to keep his religion. Religion is as much a part of
identity, of personhood, as race or nationality.19 Religion is therefore, both, a subject of
liberty and a subject of equality. The reason for the same being thatit is not only an issue
of identity but also an activity of thought. It is because religious freedom has these two
equally important aspects, religion as activity of thought and religion as identity, it has
achieved itself a distinct and important position in present legal debate. In this section,
my attempt is to focus on the right to religious freedom from the perspectives of right to
equality and liberty.

18
SCOLNICOV, supra note 2, p. 30.
19
Id, at 31.

47
3.2.1 Relationship between Right to Equality and Right to Religious Freedom.

The discourse of rights show that the rights are inter-related to each other and they cannot
exist completely secluded from each other. Thus, it is obvious for them to overlap.
Similar is the case with right to religious freedom. Talking of the same from the
perspective of right to equality brings forth the crucial issue of individual rights and
group rights, again, to the center-stage. As discussed above that the communitarian
conceptions of right to religious freedom considers the same as a question of identity and
hence demands an equal right to religious freedom in this sense. Therefore, I attempt here
to summarize the arguments which are both, for and against such conception of equality
regarding religious freedom. I argue here that equality between various religious groups
is to practice their religion is a necessary but at the same time it is problematic for various
groups especially women forming part of any broad religious group. I argue that well-
demarcated limits should be placed while providing religious autonomy to various
religious groups so that they behind the veil of their right to religious freedom do not
engage into practices which curtail individual autonomy.

3.2.1.1 Equality amongst religious groups.

The concept of equality entails within itself the right to religious equality also, which
further provides that all the religious groups should be given equal freedom to manage
their religious practices and institutions. Undoubtedly, if any religious group is not given
an equal right to practice their religion, it is seen by them as a threat to their religious
identity. Each religious group should be free to propagate its ideas and principles so as to
make their religion flourish. If these equal rights are denied to any group then it would in
all cases, either lead to communal strife or group tensions between different religious
groups present in any state, or will result in persecution or assimilation or disappearance
of the group which is denied equal status. This argument put forth from the perspective of
a group agrees to sacrifice equality of religion as an individual right in order to achieve
equality between religious groups. No doubt, this conception of religious freedom is
intended to achieve a worthwhile cause of ending conflict and establishing a just peace
between religious communities.

48
3.2.1.2 Equality within religious groups

In one sense, the above-discussedconception of right to religious freedom furthers inter-

group equality by treating members of all religious communities equal. Contrarily, if seen
from the point of view of an individual, the individual equality is sacrificed in order to
achieve group equality. As individuals, who participate in religious communities as its
members; do not give off their rights in the hands of the community. Religious freedom
ensures the right to participate in religious community activities along with basic human
rights such as freedom of expression, equality, and freedom of religious belief and
practice. Merely because religion is part of an individual’s socio-religious identity, he/she
should not be made to choose between participation in religious affairs, institutions and
basic rights.20

To support this argument, I put forth a recent instance from the State of Maharashtra of
India. There is a religious shrine of Haji Ali which was firstly open to all,
notwithstanding their religion, caste or sex. But, lately through resolution passed by the
shrine’s trust, women have been banned from entering the premise of the shrine. 21 This
incidence shows that giving unlimited rights to such religious groups which undermine
individual rights could also result to be problematic. Therefore, this viewpoint of equality
amongst religious groups is antithetic and is in constant conflict with the idea of equality
of religious freedom that individuals of the religious group possess.22 This, in turn,
defeats the very idea of freedom of religion, as argued above, that requirement for any
religion to flourish is plurality of individuals. It further implies that in the first place, it is
the individuals who possess religious freedom and it is only then that they constitute a
group which could then go on asking for an equal status as that of other religious groups.
Therefore, it is not to say that any religious groups in any country should not be given an
equal status to that of any other religious groups in the same country. But, at the same
time the question of individual equality within religious groups also should not be left

20
Id, at 85.
21
ZeeshanShaikh, Women and the Right to Worship: The “controlled” Access at Haji Ali Dargah, INDIAN
EXPRESS, Feb. 11, 2016.
22
SCOLNICOV, supra note 2.

49
unanswered. This reconciliation of individual group and equality,in and amongst
religious groups, is a question which needs to be emphasized and addressed.

3.2.2 Relationship between Right to Religious Freedom and Liberty.

The right to religious freedom is not merely one human right among others, rather, it is
the most fundamental, since the dignity of every person has its first source in his essential
relationship with God the Creator and Father, in whose image and likeness he was
created. This is the reason why religious liberty canbe defined in plurality of ways by
different individuals but in simple words it includes the inherent right of any individual to
worship in public or in private according to his/her understanding or desire, to practice
and propagate one's faith, and to change one's religion without any kind of external
hindrance.23 The libertarians primarily base their argument for religious liberty on the
principles of rationality and personal autonomy which according to them makes the
foundational ground for liberalism.

Arguing from the perspectives of rationality, the libertarians primarily view religion as
the province of subjectivism, emotion, and superstition which often fails to pass the test
of rationality. According to them, the autonomous individual makes choices on rational
grounds. Such persons, in the liberal conception, are suspicious of and feel nervous in the
presence of, feelings and emotions, especially those that are deep and powerful and not
fully comprehensible to reason.24

With respect to the issue of personal autonomy, the libertarians place individuals over the
groups. This can be discerned from the following: “rights-based liberalism begins with
the claim we are separate, individual persons, each with our own aims, interests and
conceptions of the good, and seeks a framework of rights that will enable us to realize
our capacity as free moral agents, consistent with a similar liberty for others...The
priority of the self over its ends means I am never defined by my aims and attachments,
but always capable of standing back to survey and assess and possibly to revise them.

23
James E. Wood, Editorial: Religion and Religious Liberty, 33 J. CHURCH STATE 225 (1991).
24
REX AHDAR& IAN LEIGH, RELIGIOUS FREEDOM IN THE LIBERAL STATE (OUP Oxford 2013), p. 41.

50
This is what it means to be a free and independent self, capable of choice.”25 This view
of individual autonomy and freedom accords that groups and communities, according to
the libertarians, are valuable only to the extent they represent the aggregation of
individual choices and desires. Religion being one of a number of conceptions of ‘the
good life’ which an individual may adopt, brings to the debate on religious freedom
another disputed feature of liberty, which is that of individual freedom. This attribute of
individualism inter-twined with freedom, stresses upon the individualistic conceptions of
what constitutes a good or worthwhile life.This brings them in direct conflict with the
conception of religious freedom as group right. As, if religious freedom is seen as a group
right, then the individual freedom of deciding as to what is good is undermined.26

Of course, religion and the necessary obligation which one needs to undertake in order to
be a part of any religion are decided by concerned religious group does not necessarily
makes right to religious freedom a group right. Also, it does not imply that an individual
in order to keep his/her religious identity is necessitated to give up one’s basic human
rights. Liberty, freedom and conscience of any human being is one such right which
cannot and should not be taken away from any individual under the garb of religious
freedom. This conception of religious freedom leads us to a somewhat vague conclusion
of freedom of religion primarily being an individual right and only then, a group right.
But the dispute remains unsettled as being circumscribed and affected by numerous other
debatable issues, one of which is that whether religion is a private or public affair?

3.3 Religion: A Private Affair?

The right to religious freedom is further debated from the perspective of religion being a
public or private affair. Conceptualizing religion as a public affair, and hence, an issue of
and for politics, bents the scale in the favor of communities/groups making freedom of
religion, a group right. Whereas, the private conception of religion supports the view that
religious freedom is an issue of individual right. The former view is supported by
communitarians while the latter is the stance of libertarians. In this part of this section, I

25
MICHAEL J. SANDEL, LIBERALISM AND ITS CRITICS (New York University Press 1984), p. 4-5.
26
SCOLNICOV, supra note 2.

51
defend the claim that religion should be regarded as a private matter. For this purpose,
mainly, I draw support from the ideas of Marshall and Rawls.

There are pluralities of arguments for the desirability of treating religion as a private
matter. One of such arguments is purely pragmatic in nature and focuses on the dangers
that ought to be an outcome of treating religion as a public matter. On this view, though
religion has many social benefits, it has also what W.P. Marshall calls a ‘dark side’- a
side that he describes as ‘inherently intolerant and persecutory’.27 He argues that dark
side of religion justifies placing special constraints on religion’s participation in the
political process. As for instance, if religious believers feel themselves to be subject to no
restraints in seeking to influence political decisions, the intolerant are likely to treat
public space as a battleground as a forum of debate. This in turn may encourage
dangerous divisiveness among different religions as well as movements of hate, violence
and persecution. If, by contrast, religion is seen as a private matter, this may quiet
religious fervor.28

Another version of presenting this argument is that which is given by Rawls is on the
need to find a way in which people who have different religious beliefs may live together
in a way which is fair to all of them. Rawls’s view on religion and politics are based on a
connected distinction between views which everyone can reasonably be expected to
endorse and views which are not of this kind.29 He commences with the concept of a
‘comprehensive doctrine’, which according to him includes conception of what is of
value in human life , and ideals of personal character, as well as ideals of friendship and
of familial and associational relationships, and much else that is to inform our conduct,
and in the limit of our life as a whole.30 He believes that in modern democratic societies
there is a diversity of incompatible comprehensive doctrines and conception of the good.
This is primarily because of the reason that achieving general agreement on such
doctrines is not practically possible, primarily, because every individual has different

27
William P. Marshall, Other Side of Religion, The, 44 HASTINGS LJ 843 (1992).
28
PETER CANE ET AL., LAW AND RELIGION IN THEORETICAL AND HISTORICAL CONTEXT (Cambridge
University Press 2008), p. 46.
29
Id.
30
JOHN RAWLS, POLITICAL LIBERALISM (Columbia University Press 2005), p. 13.

52
‘comprehensive doctrines’.31 Religious beliefs are one example of such comprehensive
doctrines. He, further, argues that there are basic political principles which all reasonable
people can be expected to endorse, and which would be fair to all of them despite of their
diverse religious and moral views. One of such political principles according to him is
neutrality of state towards religion. A neutral state, according to him, regards all
‘comprehensive doctrines’ as a private matter and not as a matter for the state, and its
laws and policies do not take side on what kind of life should be lead.32 He says: ‘the state
is not to do anything intended to favor or promote any particular comprehensive doctrine
rather than another or to give greater assistance or those who pursue it’.33 Therefore,
when the state is neutral on matters of religion, minorities’ right of religious freedom will
not be curtailed or restricted just because it does not match with the ‘just and good’
conception of majority. Hence, everyone will be free to pursue their own religious goals
subject to others’ enjoying similar freedom. Moreover, this would also help in promotion
of the idea of secularism.

This individualistic conception of religious freedom which owes its foundation to

reasonable individuals’ conception of good which is fair and in consonance with others is
disputed, particularly by, communitarians. They argue that, self is not independent rather
it is embedded or situated in existing social practices from which it cannot detach itself
but which it must accept as setting the parameters for its choices.34According to them,
value of individualism and free choice would be bad to many as many reasonable people
reject the idea of individuals choosing their religious convictions for themselves.
Contrarily, Rawls views such conception of the good as particular, sectarian and which is
not universally endorsed. He claims that any such attempt would be illegitimate and
oppressive.35

Therefore, disagreement between on religious matters among reasonable persons in a

society is inevitable. Drawing on the work of Rawls and Marshall in this section, I have

31
CANE ET AL., supra note 28, p. 47.
32
Id.
33
RAWLS, supra note 30, p. 193.
34
Michael J. Sandel, Political Liberalism, 107 HARV REV 1765 (1993).
35
RAWLS, supra note 30, p. 37.

53
tried to defend the view that religion should be a matter of private affair if everyone is to
be treated with mutual respect. Furthermore, the state power should be justified in terms
of shared reasons in order to promote equality. Thus, state should refrain from preferring
any religious views and citizens on the other hand should refrain from pressing purely
religious arguments in the public domain.

3.4 Religion and Religious Freedom in India.

3.4.1 Historical Background

There probably never has existed, and there certainly does not now exist, another country
where there is such heterogeneous collection of peoples as in India.36It is the land of
religions, and the same has been and is a revered and sensitive issue for Indians. This is
primarily for the reason that, the two majority religions of the country, i.e. Hinduism and
Islam are not simply religions, but they deal and provide for each and every aspect of
human life. Historically, religion was one of the foundational bases of life of people in
the country. All societal and familial relationships, primarily existed through the
mechanisms provided by different religion prevailing and being practiced in the country.
Throughout the modern history of the country, which witnessed foreign rule for majority
period, the issue of religion was left non-interfered with. This policy of non-interference
followed for a long period of time, with respect to religion and religious laws, depicts the
importance of religion and religious tenets in the lives of Indians. Although, the Indian
society as a whole has developed in all aspects, but still, the place held by religion in the
lives of majority of people in the country, is crucial and important.

In the early 20th century, the ‘divide and rule policy’ of Britishers created a huge rift
between the two major religions of the country and led to serious socio-political problems
within the territory.37 This rift can be witnessed throughout the period in which the
freedom struggle was ongoing in the country. One of the major consequences of this was
the Partition of the country on religious lines. Therefore, religion and religious freedom

36
George Trumbull Ladd, Present Religious Tendencies in India, 5 AM. J. THEOL. 217 (1901).
37
This rift can be witnessed throughout the period of freedom struggle of the nation. For more discussion,
See, BIPAN CHANDRA, INDIA’S STRUGGLE FOR INDEPENDENCE, 1857-1947 (Penguin Books India 1989),
ch. 31 & 33.

54
was a task that could not have been taken non-seriously by the drafters of the
Constitution as they were well-versed with the Indian society and the crucial position
held by religion in it. Thus, freedom of religion was an issue which was hugely debated
in the Constituent Assembly.

3.4.2 Framework of Religious Freedom under the Indian Constitution

The Preamble to the Constitution contain within it: “Liberty of thought, expression,
belief, faith, and worship”.38The Preamble shows that one of the main concerns of the
Constitution is to provide for the liberty of belief, faith, and worship, which seems to
encompass the fundamental right to freedom of religion. The Constitution of India,
though generally, takes a secular stance but at the same time it also provides for religious
freedom. On a plain reading of language of the relevant article,39 it is clear that a person
is free to profess, practice, and propagate his/her religion except when concerns for
public order, morality, or health dictate otherwise. Further, the Constitution provides this
right of religious freedom in a broader perspective to both, individuals as well as to
groups. The latter categorization of the right to religious freedom between individuals
and groups in a broader perspective can be deciphered through the following provisions:

(i) Individual Rights

Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all

persons’ within the following parameters:

38
The Constitution Of India (1950), See, preamble.
39
Id, Art 25.The article runs as follows:
25. Freedom of conscience and free profession, practice and propagation of religion.
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making
any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be
associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.
Explanation I-The wearing and carrying of kirpans shall be deemed to be included in the profession of the
Sikh religion.
Explanation II- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.

55
 1. All persons are equally entitled to freedom of conscience and the right freely to
profess, practice and propagate religion.40
2. There shall be freedom as to payment of taxes for promotion of any particular
religion by virtue of which no person shall be compelled to pay any taxes the
proceeds of which are specifically appropriated in payment of expenses for the
promotion or maintenance of any particular religious denomination.41
3. No religious instruction is to be provided in the schools wholly maintained by
State funding; and those attending any State recognized or State-aided school
cannot be required to take part in any religious instruction or services without
their (or if they are minor their guardian's) consent.42

(ii) Group Rights

Freedom of religion is guaranteed by the Constitution of India as a group right in the

following ways:

1. Every religious denomination or any section thereof has the right to manage its
religious affairs; establish and maintain institutions for religious and charitable
purposes; and own, acquire and administer properties of all kinds.43
2. Any section of the citizens having a distinct language, script or culture of its own
shall have the right to conserve the same.44
3. Religious and linguistic minorities are free to establish and administer educational
institutions of their choice, which shall not be discriminated against by the State
in the matter of giving aid or compensation in the event of acquisition.45

Moreover, the fundamental right to religious freedom embodied in the Indian

Constitution is not an absolute right. There are limitations within which these rights can

40
Id.
41
Id, Art. 27.
42
Id, Art. 28.
43
Id, Art. 26.
44
Id, Art. 29.
45
Id, Art. 30.

56
be exercised, as also lawful restrictions which can be imposed by the State on such rights,
as detailed below:

i. The right to freedom of religion is, in general, subject to public order, morality,
health and the other provisions of the Constitution.46

ii. Despite the right to religious freedom, the State can pass laws providing for social
welfare and reform and also to regulate or restrict any secular activity - economic,
financial, and political, etc. even though it may be traditionally associated with
religion.47

iii. Despite the minorities' right to establish and maintain educational institutions, no
citizen can be kept away from any State-aided or State- maintained educational
institution only on religious grounds.48

3.4.3 Indian Secularism

An amendment done in 1976 added the word secular to the preamble of India’s
Constitution. The Constitution's opening phrase now begins: “We, the People of India,
having solemnly resolved to constitute India into a Sovereign Socialist Secular
DemocraticRepublic.”49 The preamble goes on to commit India to “Justice... Liberty of
thought, expression, belief, faith and worship [,]... Equality [,] ... [and] Fraternity.”50 The
original mention of religious liberty and the later addition of the term secular signal
India’s commitment to maintaining a government that is autonomous from religious
leaders, yet responsive to the concerns of minorities in India's incredibly diverse society.
Two types of secularism are in tension in India. One is a liberal or Western secularism,
which emphasizes separation of religion and the state, a vision embraced by the first
Prime Minister, Jawaharlal Nehru. The other, which arguably is the dominant strain of
secularism, emphasizes equal respect for different religions, a vision associated with

46
Id, Art. 25.
47
Id, Art.25(2).
48
Id, Art.29(2).
49
Id, See preamble.
50
Id.

57
nationalist leader Mohandas Gandhi.51 The latter approach involves some state support
for various religious endeavors, including, for example, financial support for religious
educational institutions operated by minority religions and recognition of different
religious civil laws-Hindu, Muslim, Christian, and others-in Indian courts in certain types
of cases involving persons of those religions.52

Secularism in India is about symmetry rather than complete separation between the state
and religion. In the words of AmartyaSen, the “dominant approach” to secularism in
India has been “a basic symmetry of treatment” of various religious communities rather
than a “demand that the state must stay clear of any association with any religious matter
whatsoever.” Defining secularism as symmetrical treatment and equal respect means that
the government may take an active role in promoting religious freedom, as long as this is
done for all. In other words, in India “working hard for religious freedom does not breach
the principle of secularism.” Nevertheless, in a society of diverse religions and
ideologies, even the relationship between secularism and religious freedom is contested:
“Interpreted as alternatively freedom or coercion, tolerance or intolerance ... secularism
in India has been a divisive issue.”53

3.5 Conclusion

In this chapter, I have argued that religion is primarily a private issue and hence right to
religious freedom is primarily an individual right. The arguments forwarded in order to
construe religion and religious freedom as group rights are, though acceptable, but they
are not of the standard which justifies them to be treated primarily as a group right.
Further, the problems which float with respect to religious freedom, if the same is treated
as group right, are also highlighted. I have, further, discussed the place of religion and
religious freedom in India in light of the Indian Constitution. At the end of this chapter,
the issue of secularism has been discussed which suggests the uniqueness with which the
concept has been applied in the Indian Constitution by its drafters. In the next chapter, I

51
Laura Dudley Jenkins, Diversity and the Constitution in India: What is Religious Freedom, 57 DRAKE REV
913 (2008).
52
Id, at 917-19.
53
Jenkins, supra note 139.

58
take up the issue of personal laws with respect to Indian diaspora which furthers the
discussion of religious freedom as dealt in this chapter.

59
 CHAPTER 4

LEGAL PLURALISM VIS-À-VIS PERSONAL LAWS IN

INDIA

The preceding chapter discussed that ancient worldly societies had their foundational
basis in religion and traditions. Hence, the starting point ofmost legal regimes has been as
personal law regimes. The connecting thread, between an individual and the set of rules
that apply to him and his social transactions, was traditionally ‘personal’, such as through
a kin or status group, tribe or religion, or guild or other association. 1 This is suggestive of
the fact that, historically, identity of an individual was intricately inter-twined with
religion, culture and traditions. While traversing various phases of social development of
worldly societies, an important observation which can be discerned is that, some societies
have shifted from these historical foundational bases to endorse modern political
concepts as basis of social organization (for e.g. most of the western societies), while
others have not been as successful as those (for e.g. societies in South-east Asia and
Middle East).2 In these latter societies, which continue to recognize religion and cultural
as basis of society, and where the identity of an individual is dependent on the same
(religion), the issue of religion and religious identity is of utmost importance. Hence,
personal laws become a sensitive and complex socio-political as well as legal issue in
these societies.

India, with its myriad of religious, cultural and legal traditions, is a country with
unparalleled diversities and continues to defy time and space.3 Originating from ancient
times, the governance of country’s society has experienced plurality of legal traditions. In
this chapter, my focus is to trace the historical background and development of personal
laws in India in the backdrop of Hindu, Muslim and British legal systems. I shall try to
highlight the impact of the same on personal laws of the country (sec. 4.2). Next, I have
1
SubrataMitra& Alexander Fischer, Sacred Laws and the Secular State: An Analytical Narrative of the
Controversy over Personal Laws in India, 1 INDIA REV. 99 (2002).
2
This is not to say that these societies have completely done off with the historical bases or have been
following the same in their entirety.
3
3 STANLEY NIDER KATZ, THE OXFORD INTERNATIONAL ENCYCLOPEDIA OF LEGAL HISTORY (Oxford
University Press 2009), p. 215.

60
tried to highlight the development in the personal laws of the country in the post-
constitutional regime (sec. 4.3).

4.1 Historical background of Personal laws in India

Since ancient times, religion has regulated almost every aspect of human life both public
and personal in India. It has been the guiding and driving force behind all laws including
personal matters as well as public matters. History of personal laws in India with respect
to time-period is somewhat similar to general history of the country. It can be divided
into four majority periods, viz. ancient era, medieval era, British era and lastly the post-
constitutional era. In this section, I have tried to deal with the status and development of
personal laws in different phases of history of the country.

4.1.1 Personal laws in Ancient India

The laws governing the societal and familial transactions in ancient India had their origin
in sacred and spiritual texts. Over the centuries, legal experts on law devised the vast and
impressive dharmasastra jurisprudence (‘science of righteousness’), centered on the
concepts of rita(cosmic order) and dharma (‘righteous conduct’) to govern all aspects of
life.4 The main sources of law were the ‘Vedas’, the ‘Puranas’, the ‘Upanishads’, and the
‘Brahmanas’. The Vedas are thought of to be as revealed texts and divinely inspired.
Theyare also referred to as ‘Shruti’ meaning ‘what is heard’. Like any other revealed
texts, the Vedas contains many titles of positive law and are considered as the first
amongst the primary sources of Hindu Law. It is believed that the Rishis or sages of
immemorial antiquity heard it and transmitted it to next generation.5The rules laid down
by these sacred texts formed the basis of societal organization and transactions. In
addition to their religious duties they also served as a code of ethics and morality, and at
the same time provided for governing of social matters and matters relating to politics
and government.But, these made no clear-cut distinction between civil laws and religious
and social laws. Thinking on similar veins, Sir Henry Maine makes the following remark:

4
Id, at 215.
5
For more discussion on the sources of Hindu Law. See, DINSHAHFARDUNJIMULLA&SATYAJEET A. DESAI,
PRINCIPLES OF HINDU LAW. (Butterworths India, 21st ed. 2010), pp. 99-108.

61
“There is no system of recorded law from China to Peru, which when it first emerges into
notice, is not seen to be entangled with religious ritual and observances”.6

The ‘Smritis’ which means traditions or ‘what is remembered’ are the second most
important source of Hindu Law. These are different from Shruti’s as they are not a direct
perception of the divine precepts but are an indirect perception founded on memory.7
These later developments in Hindu texts recognized the distinction between law and
religion by dealing separately with them. In YajnavalkyaSmriti, the subject-matter of law
(dharma) is dealt-in through three separate heads, viz.Achara, Vyavahara and
Prayaschita. The second one ‘vyavahara’ is devoted to civil law, and the first and the last
of these relate to rules of religious observances and expiation. Manu Smriti may also be
put in the same category. Manu is regarded as the first law giver or exponent of the law.
The code of Manu is divided into twelve chapters, eight of which state rules on various
subjects of law both civil and criminal. Other chapters deal with religious sacraments and
prescribe moral rules. Other treatises like, NaradSmriti and BrihaspatiSmriti etc. which in
their entirety are devoted to the discussion of civil law and which are posterior to the
Manu Smriti.8

It is, however, submitted that it would be an over simplification to contend that the
Hindus regarded the law as an integral part of their religion. Indeed, religion had its vital
role to play in controlling and guiding the behavior of the people, yet local customs and
approved usages had also acquired the force of law.

4.1.2 Personal Laws in Medieval India.

Medieval Indian history marks the advent and flourishing of Islam in the country.
Majority part of northern and some parts of Western India came to be ruled by Muslim
rulers. They brought with them, a culture and tradition which was unknown to the
country, and along with, brought a new legal system and increased the plurality of India’s
law. Islamic law, also known as Sharia, owesits origin in the sacred text of ‘Quran’.
6
HENRY SUMNER MAINE, DISSERTATIONS ON EARLY LAW AND CUSTOM: CHIEFLY SELECTED FROM
LECTURES DELIVERED AT OXFORD (J. Murray 1883), p. 5.
7
MULLA& DESAI, supra note 5.
8
8 UC SARKAR, EPOCHS IN HINDU LEGAL HISTORY (Vishveshvaranand Vedic Research Institute 1958), p.
23.

62
Quran consists of very words of God revealed to the Prophet Mohammad. The Quran is
in the form of addresses which continued till the Prophet completed his task of a society
fully organized, well integrated and patterned with all the basic institutions. Islamic
jurisprudence is an excellent example of complete union of law and religion. In Islam,
says James Bryce, ‘Law is religion and religion is law’ being both content in the divine
revelation.9The other sources of Islamic law are Hadith, Ijma, andQiyas.

In India, the Muslim rulers applied Islamic law principles for public matters like criminal
law and other administrative policies, but in the matters falling in the domain of private
law, all Non-Muslims were free to follow their own religious laws and customs. In actual
practice, Muslim rulers did not exactly enforce in many places, the Islamic private law
even for the Muslims.10 They did not prohibit the religious practices like Sati and
DevDasi which were practiced by Hindus at large. Hindu religious law and customs were
placed by the Muslim rulers of India at par with the Islamic religious Law.11 On the
contrary, Mahmood argues that: “It is an indisputable historical fact that Hindu law in
fact reached the heights of scholarly development during the Muslim rule in the country.
Before what is commonly called Muslim rule in the country, all law was derived from
what is now known as Hindu religion and its injunctions and precepts as found in the
Srutis and Smritis including the Holy Vedas, Dharmashastras, and Dharmasutras. Legal
treatise like the Manusmirti, YagnavalkyaSmriti and Kautilya'sArthashastra, were legal
codes of their respective times based on Vedic and Dharmic foundations. The law given
by these ancient Indian codes is now called Hindu law. Development of this law did not
stop after the advent of Islam in India. Muslim rulers of the country did not interfere with
it and left the process wholly free from state intervention. Vijyaneswhara's Mitakshara
(11th century) and Jimutavahan'sDayabhaga (12th century) both were produced after the
advent of Islam and were accepted and acted upon as veritable codes of Hindu law - (the
latter in eastern India and the former in the rest of the country) - during the reign of the
succeeding Muslim rulers. Devanna'sSmritiChandrika, the Dravida code of Hindu law,
9
2 JAMES BRYCE BRYCE, STUDIES IN HISTORY AND JURISPRUDENCE (Oxford University Press, American
Branch 1901), p. 237.
10
TAHIRMAHMOOD, UNIFORM CIVIL CODE: FICTIONS AND FACTS (India and Islam Research Council 1995),
p. 43.
11
SYED TAHIRMAHMOOD, MUSLIM PERSONAL LAW: ROLE OF THE STATE IN THE SUBCONTINENT (Vikas
Publishing House Private 1977), pp. 1-2.

63
was also produced in South India towards the end of 12th century A.D. In North
India,Vachaspati Mishra's VivadaChintamani and Mitramishra'sViramitrodaya appeared
in the 15th and 17th centuries respectively the latter during the Mughal rule. At the peak
of Mughal authority in the country Western India witnessed emergence of
Nikhanata'sVyavharmayukha (17th century). All these work were legal codes of their
ages based on Hindu religious sources however taking into account the exigencies of the
time. These works eventually gave birth to the four sub schools of Mitakshara - (Madras,
Mithila, Banaras, Bombay) schools. This development of Hindu law during the so called
‘Muslim rule’ in India confirms the historical fact of an absolute non-interference by the
state at that time in the juristic evolution of indigenous law”.12 This following excerpt
also depicts this attitude of exemption towards personal laws from the purview of statein
Mughal judicial system: “Not much litigation came before the Kazis because of the
existence of village panchayats, and also because civil causes among the Hindus were
decided by their own elders or Brahmins. The practice of the Mughal government seems
to have been to leave the Hindus free to decide their cases as best as they could”.13

Hence, during Muslim rule too, the law was not very much segregated from the religion
but the policy of non-interference was duly followed. Therefore, all Non-Muslims were
governed in matters of their personal laws by their own traditional and customary laws. It
can, hence, be concluded that in the medieval India, the policy of legal pluralism with
respect to personal laws was adopted by the Muslim rulers of the time.

4.2 Personal Laws in Colonial India

Prior to Britishers, it was generally the criminal law which was applied commonly on
Indian citizenry during the Muslim rule. Though the Britishers too, did not meddle
extensively with the personal laws of the citizens but the changes brought about by them
in legal system of the country, left some marks on the personal law systems. In this part
of this section, I intend to highlight the policies adopted by Britishers with respect to the
personal laws in India.
12
SYED TAHIRMAHMOOD, STATUTE-LAW RELATING TO MUSLIMS IN INDIA: A STUDY IN CONSTITUTIONAL
& ISLAMIC PERSPECTIVES (Institute of Objective Studies 1995), p. 8.
13
MAHABIRPRASHAD JAIN, OUTLINES OF INDIAN LEGAL & CONSTITUTIONAL HISTORY (Wadhwa and
Company, 6th ed. 2008), p. 31.

64
The Britishers came to India primarily as traders with an aim of furthering the British
commercial interests in overseas countries. As the Mughal Empire was weak and
unstable at the time, therefore, slowly the BritishEast India Company started to usurp
power, and became the forerunners of British rule in India. As mentioned that the primary
objective of the British East India Company and the later British rule was economic,
hence, they were primarily concerned with regulation of laws relating to trade and
commerce.14 Thus, as a matter of policy, it was politically expedient for theBritishers to
not to interfere with existing personal laws in so far as they related to family and
inheritance rights alone. Hence, even after establishing their hegemony over India, they
more or less continued the Muslim pattern of judicial administration and followed the
policy of non-interference.15 This policy of non-interference can be observed in the
Judicial Plan of 1772. It provided for the application of law of the ‘Quran’ with respect to
the Muslims and those of the ‘Shastra’ with regard to the Hindus.16

The Britishers, though, did not directly interfere in the personal laws of Hindus and
Muslims, but their judicial mechanism considerably influenced the same. The origin of
this change can be traced back to judicial plan of 1772. The latter placed the
administration of justice in the hands of English judges. This change, though not
substantial, tended to alter the traditional concepts prevalent in personal laws of the
people through various ways. Firstly, the English judges consulted the ‘Pandits’ and
‘Maulvis’ in matters relating to personal laws of Hindus and Muslims. But nonetheless,
being a foreigner having no contextual background, he could only make his judgment
confirming to what he could understand of the law. Moreover, his principal task was to
search out a legal solution. Secondly, the role of judges in the pre-British system was
understood as resolution of dispute brought before them, with solutions’ having no
binding legal authority over each other. But, when the administration of justice fell into
the hands of British, the doctrine of stare decisis was introduced. Thus, the law which
hitherto had potentially existed in scriptural work and treatises now came to be fixed in
the case law of these new courts. Before the advent of the British judicial system, the
14
KATZ, supra note 3, p. 215.
15
RINAVERMA WILLIAMS, POSTCOLONIAL POLITICS AND PERSONAL LAWS: COLONIAL LEGAL LEGACIES
AND THE INDIAN STATE (Oxford University Press, USA 2006), p.14.
16
See, Art. 27 of the Judicial Plan of 1772.

65
Hindu law was developed by commentaries and digests written by Hindu jurist. It is they
who interpreted the scriptural law. But with the growth of case law this source began to
dry up.17 Another way in which English notions were introduced in Hindu and Muslim
personal laws was by using the common law principle of “justice, equity and good
conscience”. This maxim has enjoyed a continued existence and has been repeatedly laid
down in a number of laws passed by the British. In fact, it is presently taken to be one of
the modern sources of personal laws in the country.18

4.2.1 Codification of Laws in British India

The Britishers largely followed the policy of non-interference with respect to personal
laws in India.19 They made some minor attempts towards reformation and codification of
personal laws.20 As mentioned before, the British rulers had reserved the personal laws of
the communities in certain areas; however, they realized that the general law of the
country required change. The foremost reason for this change was that legal system of
India in the early 19th century was abundantly confusing as well as chaotic. Different
laws were applied by village, district and provincial courts. While in many matters of
civil laws, Hindus and Muslims were governed by their own laws on the one hand. While
on the other, non-Hindus and non-Muslims had their own set of governing laws. The
Muslim criminal law which was applied to the public at large had become obsolete. Thus,
uncertainty of law in India posited several administrative problems for them.21

The primary purpose of codification was to achieve certainty and uniformity. In

furtherance of this policy of codification, Lord Macaulay was appointed as Commissioner
of the Board of Control for India in 1832. At the same time, he was also a member of the
House of Commons when the Charter Bill of 1833 was being debated in the British
Parliament. During the course of discussion, he made a strong plea for a codification of
Indian laws.This is clear from the following remark made by him: “We must know that

17
JAIN, supra note 13, pp. 530-550.
18
DHIRENDRA KUMAR SRIVASTAVA, RELIGIOUS FREEDOM IN INDIA: A HISTORICAL AND CONSTITUTIONAL
STUDY (Deep & Deep Publications 1982), p. 231.
19
This is not to say that they followed this policy in its entirety.
20
John Duncan Martin Derrett, The Codification of Personal Law in India: Hindu Law, 189 6INDIAN YEAR
BOOK OF INTERNATIONAL AFFAIRS (1957), p. 189.
21
WILLIAMS, supra note 15, p. 11. See also, SARKAR, supra note 8, p. 348-49.

66
respect must be paid to the feelings generated by differences of religion, of nation and
caste. Much, I am persuaded, may be done to assimilate the different system of laws
without wounding those feelings. We propose no rash innovation; we wish to give no
shock to the prejudices of any part of our subjects... Our principle is simply to ascertain
Uniformity where you can have it- diversity where you must have – but in all cases
certainty”.22As a result thereof, he was made the law member and subsequently the
Chairman of the First Law Commission of India set up in 1833. Though, no furtherance
of this policy of codification was made on the part of Britishers due to two reasons.
Firstly, they saw personal laws as intimately tied up to the religion, therefore, preserving
them confirmed to their policy of neutrality in native religious affairs. Secondly, they
considered it too potentially dangerous to tamper with the same due to fear of religious
and communal protests.23Through the Charter Act of 1853, the Second Law Commission
put forward polices and principles of future codification in India. In 1861 another Law
Commission was appointed for the preparation of draft code regarding Civil Law in
India. On February 11, 1879, the Fourth Law Commission was appointed with goal of
codifying all the substantive law prevailing in British India. By the efforts of various Law
Commissions, Criminal Laws were codified by 1898 and came into force and became
applicable to thewhole of India irrespective of their religious belief. But, there was no
Uniform Civil Code.24 A number of statutes were passed to achieve the objective
underlined by Macaulay.25

These codifications had some diluting effect, and they limited the operation of the Hindu
and Muslim laws to some extent. For example, the Caste Disabilities Removal Act, 1850
abrogated the Hindu and Muslim Law26 of property in regard to apostates. Before this
Act, under both, the Hindu and Muslim law, if a Hindu or Muslim as the case may be,

22
BANKEYBIHARIMISRA, THE ADMINISTRATIVE HISTORY OF INDIA, 1834-1947: GENERAL ADMINISTRATION
(Oxford University Press 1970), pp. 527-28.
23
WILLIAMS, supra note 15, p. 6.
24
Prabodh Kumar Garg, Muslim Personal Law, Uniform Civil Code and Judicial Activism- A Critical
Study. (2014) (University of Lucknow).
25
Some of the important legislations were the Caste Disabilities Removal Act, 1850, the Indian Contract
Act, 1872, the Transfer of the Property Act, 1882, the Indian Evidence Act, 1872, the Indian Succession
Act, 1865, and the Child Marriage Restraint Act, 1928. These applied to all the people irrespective of their
religious belief.
26
Asaf AA Fyzee,Outlines of Mohammedan Law, OUP (1964), pp. 169-70.

67
renounced his religion or was excluded from the communion of the religion or was
deprived of caste, such renunciation, exclusion or deprivation resulted in the forfeiture or
his right and properties. After this Act, these consequences ceased to be enforced as a law
in the courts of British India.27 The right of the succession under the Hindu law in many
cases exclusively depended upon the right to perform funeral obligations. It is by virtue
of such a last rite, which could only be performed by Hindu sons and near kinsmen
became entitled to the property of the deceased. Moreover, the codification of Criminal
law had the effect of repealing the then prevailing Hindu and Muslim law of crimes.
When the British took over the administration from the Muslims, they, to a large extent,
continued to apply the Muslim criminal law to the natives, in the provinces of Bengal and
Bihar. From 1823 onwards, the Muslim law, however, ceased to apply compulsorily to
non-Muslims. In Bombay, until 1823 the Hindu Criminal law was applied to Hindu and
the Muslim Criminal law was applied to Muslims.28 The Indian Penal Code made
punishable certain inhuman practices which were perpetuated in the name of religion,for
example, the practice of Sati.29 Further, the Indian Contract Act of 1872 abridged the
Hindu and Muslim law in respect of matters governed by the Act. Before the passing of
this Act, the Hindu law of Contract applied to Hindus and Muslim Law of Contract
applied to the Muslims. Even today in the cases not provided for by the Act or any other
legislation, the Hindu law of contract applies to Hindu and the Muslim law of contract
applies to Muslim.30

4.2.2 Legislations Codifying the Personal Laws

(i) Codifications in Hindu Personal Laws

Numerous legislations were passed to introduce reforms in the then prevailing Hindu law.
The study of Hindu law discloses that in most of the cases, the innovating Acts had the
support of the enlightened and progressive sections of Hindus, but the conservative and
orthodox Hindus viewed the same as encroachment on their religious practices. For
27
SARKAR, supra note 8, pp. 367-68.
28
RATANLALRANCHHODDAS ET AL., RATANLAL&DHIRAJLAL’S THE INDIAN PENAL CODE (ACT XLV OF
1860).(Wadhwa& Company 2007), p. viii.
29
Sati was a religious practice whereby a Hindu widow burnt herself to death upon the funeral pyre of her
husband.
30
JH DALAL, MULLA ON THE INDIAN CONTRACT ACT (Tripathi 1972), pp. 1-2.

68
instance, in 1856, the Hindu Widows’ Remarriage Act legalizing remarriage of Hindu
widows was passed which was considered tobe against theShastricinjunctions.31 Further,
the Hindu Women's Right to Property Act, 1937 conferring on Hindu Women better
rights of property than they had previously. This Act made revolutionary changes in the
area of Hindu law of joint family, coparcenary, partition, inheritance etc. The Indian
Majority Act, 1875, fixed the age of majority on completion of the eighteenth year. This
applied to Hindu in all matters except marriage, divorce and adoption. In 1929, Child
Marriage Restraint Act was passed to discourage the practice of existing child marriages.
The minimum marriage age of marriage for male was fixed at eighteen years whereas for
a female it was fifteen years.32 In 1946, the Hindu Married Women's Rights to Separate
Residence and Maintenance Act was enacted enabling a Hindu woman to claim separate
residence and maintenance from the husband under certain circumstances mentioned in
the Act even without dissolving the marriage.33 Numerous other Acts34 made considerable
inroads on the principles of succession and inheritance.

(ii) Codifications in Muslim Personal Law

The legislative activity concerning Muslim personal law in India during the British
regime was less as comparable to Hindu personal law. The attitude of non-interference
adopted by the British administrators was followed more strictly in the case of Muslims.
Only a few changes through legislation were made in Muslim law due to the misleading
belief that Muslim law is totally opposed to changes and is entirely devoid of flexibility
and dynamism. Three Acts which affected Muslim and the Hindus both were the Caste
Disabilities Removal Act, 1850, the Child Marriage Restraint Act, 1929, and Dowry
Prohibition Act, 1961. The three central statutes passed during the British period in
relation to Muslim personal laws were; The Wakf (Validating) Act, 1913; the Muslim
Personal Law (Shariat) Application, 1937, and the Dissolution of Muslim Marriage Act,
1939.

31
Although, in ancient India widow remarriage were permitted in special cases and were even prevalent
amongst certain classes of people of certain localities.
32
RANCHHODDAS ET AL., supra note 28, p. 352.
33
Id.
34
For example, The Hindu Inheritance (Removal of Disabilities) Act, 1928 and The Hindu Law of
Inheritance (Amendment) Act, 1929.

69
Further, certain Acts were passed in relation to Muslim personal laws. For example, an
alteration was effectuated in Muslim personal law in 1913 by enacting the
MussalmanWakf (Validating) Act. This was done to undo the effect of the Privy Council
ruling in the famous case Abdul Fata Mohammad Ishak v. RusomoyDhurChowdhary.35
Moreover, the communities like Khojas, Boharas, and Memons had become converts
from Hinduism to the Muslim religion. Though they had renounced the Hindu religion,
but they did not renounce the Hindu customs and continued to observe the Hindu law of
inheritance and succession as customary law. The orthodox Muslim opinion did not relish
this situation. Therefore, in 1937, the Muslim Personal Law (Shariat) Application Act
was passed with a view to abrogate these customs and bring these communities under the
Muslim law.36Another legislation enacted was the Dissolution of the Muslim Marriage
Act, 1939 which gave the Muslim wife the right of judicial separation from her husband
in certain circumstances.

4.3 Personal Laws in Post-Colonial Era.

As colonial rulers, the British were not accountable to their Indian subjects. Hence,
colonial legal policy vis-à-vis the personal laws served to consolidate and centralize the
power of colonial state.37 In this section of this chapter, I attempt to underline the policies
of Indian government in post-colonial period. It is my aim to find that whether the
Independent Indian governments have continued to follow substantially the same
approach towards the personal laws, operating with the same discursive and conceptual
parameters, as the British had done in the colonial period. Moreover, I also intend to
bring in the discussion with regard to the issue of uniform civil code in the country.

4.3.1 Personal laws and the issue of Uniform Civil Code in the CAD

India’s Constitutional Assembly was given the task of drafting the Constitution for
Independent India. As the same was intended to deal with socio-political, legal and
economic aspects of the nation, hence, some debate about what extent of constitutional
protection was to be given to personal laws, and about establishment of uniform civil
35
(1894) 22 I.A. 76 at pp. 86-7.
36
WILLIAMS, supra note 162. 83-7.
37
Id, p. 89.

70
code for all Indians regardless of religion was also done. The first draft of the
Constitution included an article38 that called upon the state to “endeavor to secure for the
citizens a uniform civil code throughout the territory of India”. 39The Article was a
directive principle meaning it could not be enforced in a court of law. Neither did it
provide any time span for its establishment, nor any guidelines as to how could it be
established, nor as to what would be the content of such law. It merely was laid out as a
matter of state policy.40

Supporters of the Article in the Constituent Assembly, including Prime Minister Nehru,
felt it was important to include the principle of a uniform code for the sake of national
unity. AlladiKrishnaswamiAyyar held that ‘differential systems of law would contribute
to the differences among the different peoples of the country’.41Though, the article was
not mandatory, some representatives in the assembly, particularly Muslims, opposed its
inclusion in the Constitution. Mahboob Ali Beg demanded that the personal laws should
be given constitutional protection and argued: “as far as Muslims are considered their
laws of succession, inheritance, marriage, and divorce are completely dependent upon
their religion”.42Further, Mohamad Ismail Sahib denied that uniform laws were
necessary to generate a sense of national unity and asserted that: “… people want a
uniform civil code… to secure harmony through uniformity, but such regimentation will
bring discontentment and harmony will be affected”.43 The opponents further denied that
uniform code was not only a concern for minorities rather also for majority community.
B. PockerSahebBahadur argued that: “… there are ever so many sections of the Hindu
community who are rebelling against this and who voice forth their feelings in much
stronger language than I am using. If the framers of this article say that even majority
community is uniform in support of this, I would challenge them to say so”.44During the
discourse, the imperial policy of non-interference was also referred to. Bahadur further

38
Art. 35 of First Draft of Indian Constitution.
39
The Constitution Of India (1950).
40
WILLIAMS, supra note 15, pp. 99-100.
41
CONSTITUENT ASSEMBLY DEBATES, VOL. VII, p. 549. This argument of national unity is in accordance of
the western idea of nationalism as discussed in Chapter 2 “Multiculturalism” of this dissertation.
42
Id, at 543.
43
CONSTITUTIONAL ASSEMBLY DEBATES, supra note 182.541.
44
Id, at 545.

71
argued that: “…one of the reasons why the British… has been able to carry on the
administration in the country for the last 150 years and over that was that they gave a
guarantee of following their own personal laws to each of the various communities in the
country”.45Naziruddin Ahmed argued that several piecemeal legislations were made by
the British, but suggested that these had been imposed gradually rather than all at once.
Thus, suggesting that: “… the goal should be a uniform civil code but it should be
gradual and with the consent of the people concerned”.46

Supporters, on the other hand, denied the assumption that uniform civil code would
violate any religion and argued that personal laws had nothing to do with the religion.
K.M. Munshi held that the “attitude of mind perpetuated under the British rule that
personal law is part of religion has been fostered by British and their courts. We must,
therefore, outgrow it”.47Moreover, they argued that Britishers had themselves effectuated
the idea of uniformity. Ayyar asserted that: “…greatest contribution of British
jurisprudence has been to bring about uniformity in these matters. We only go a step
further than the British…why should you distrust much more a national indigenous
Government than a foreign Government?”48 Dr. Ambedkar, country’s first Law Minister
and the chief architect of the Constitution, assured the minorities that the government
would not forcibly impose upon them a uniform civil code without their consent. He
sought to “give them an assurance…I think they have read rather too much in the
Article… it does not say that after the code is framed the state shall enforce it upon all
citizens merely because they are citizens”.49Nehru, as mentioned earlier, was himself in
favor of uniform civil code but he was caught between the arguments from the two sides.
Though, he understood the fact that ‘personal laws are supposed to be part of religion and
hence, no change could be imposed from the top’.50 In the end, Article 44 pertaining to
uniform civil code was inserted in the Constitution as a non-enforceable directive
principle, and the personal laws were also retained, although with reasonable restrictions.

45
Id.
46
Id,at 542.
47
Id,at548.
48
Id,at548.
49
Id,at551.
50
Reba Som, Jawaharlal Nehru and the Hindu Code: A Victory of Symbol over Substance?, 28 MOD.
ASIAN STUD.165 (1994). 168.

72
4.3.2 Codification of Hindu Personal Law

After independence, Nehru sent the 2nd Rau Committee’s draft of Hindu Code51 to the
Law Ministry for consideration and revision. Henceforth, it was referred to a Select
Committee under the Chairmanship of Ambedkar in 1948. The Ambedkar Committee
submitted its report and a revised version of the code in August 1948. 52 Soon after the
first general elections in the country in 195153, Nehru turned to the issue of reforming and
codifying the personal laws of Hindus. Before introducing the new Hindu Code Bill
(HCB) into Parliament, Nehru broke the single HCB into four constituent bills.54

Nehru’s primary reason for advocating HCB was his desire to begin the process of
modernization and the forging of Indian national unity. He believed that the codification
and reform of Hindu personal laws were the first steps towards a uniform civil code.
Supporters of HCB agreed that unifying the Hindu community was the first step towards
unifying the nation.55 In doing so, they linked Indian national unity with religion,
community, and law. On the contrary, the opponents who were largely men and from the
Congress party itself, argued that these reforms were too radical and cut away at the
foundation of Hindu social order. Moreover, they referred to the HCB as the imposition
and furtherance of the progressive ideas of a small, if not microscopic minority on the
vast majority of Hindu India.56 To get past the accusation of interference, HCB
proponents, led by Nehru, had to interpret Hindu public opinion selectively. 57 Still, there
was massive hue and cry against the HCB and hence, numerous substantive and
procedural concessions were made in the original Bill in order to balance out the
demands of the opponents on the one hand and to reform and codify the Hindu personal
laws on the other.

51
Rau Committee was abandoned by the Britishers in 1944.
52
WILLIAMS, supra note 15, p. 102.
53
Hindu Code Bill was made a central theme of election campaign in the first general elections of India.
54
Single Hindu Code Bill was split into the Hindu Marriage & Divorce Bill, the Hindu Succession Bill, the
Hindu Minority and Guardianship Bill and the Hindu Adoption And Maintenance Bill.
55
These arguments reflected the assumptions of classical western theories of nationalism, national identity
and secularism.
56
Som, supra note 50, p. 175. For a better description of the politics over codification of Hindu personal
laws, see WILLIAMS, supra note 15, p. 107-13.
57
They argued that even though the Bills did face opposition, the impetus for social reforms had to come
from a progressive and enlightened minority of Hindus.

73
Once the HCB was passed, the belief that that Hindu personal law had been reformed was
constructed.58 Moreover, it not only polarized the Hindu community into two but at the
same time it heated up the issue of uniform civil code. Hence, the demand to reform and
codify the Muslim personal laws also found air. To this, then Law Minister C.C. Biswas
asserted that ‘legislation to codify and reform Muslim personal law was not being
pursued simultaneously with those of Hindu personal laws because there was no popular
demand from the Muslim community’.59 This policy of non-interference with the Muslim
personal laws had two-fold consequences: firstly, it perpetuated the image of Indian
Muslims as ‘conservative and resistant to change’60, and secondly, it served to tie the
Muslims even more closely to their personal laws as a crucial marker of their religious
identity, and as separate in the context of Indian identity that was supposed to be
secular.61

4.3.3 Non-interference and Muslim Personal Law

The issue of Muslim personal laws returned to the center-stage of Indian political
diaspora in 1980’s after being in a partially dormant phase for around twenty years. The
issue arose mainly due to the judgment of the Indian Supreme Court in the Shah Bano
case, and resulted in ever more heating debate over uniform civil code in the country
again. Moreover, it lead to tension between Hindus and Muslims directly over the
personal laws, and involved issues of national integration, women’s rights, and freedom
of religion. The issue acquired added significance when considered in the context of
historical evolution of state policy on the personal laws. Since, the main reason of this
controversy over Muslim personal law was Shah Bano judgment; hence, I find it
pertinent to discuss it instantly.

The Shah Bano Controversy

This controversial judgment was the outcome of events that took place about a decade
ago. In 1973, the Criminal Procedure Code (Cr.P.C) of India was amended. One

58
Even though the final code as passed by the legislature was largely different from the original draft.
59
WILLIAMS, supra note 15, p. 116.
60
The opinion of Indian Muslims regarding their personal laws was not even tested.
61
WILLIAMS, supra note 15, p. 117.

74
provision62 which provided for maintenance of destitute or abandoned wives and parents
from their husbands and children was also amended. The purpose of this section was to
prevent vagrancy. However, some Muslim men, when faced problem with an order to
provide for maintenance, they tended to avoid it. As according to the interpretation of
Muslim personal on this matter, the husband was to provide support to a divorced wife
only for three months after the divorce or during the iddat period. After this period, he
was under no obligation to provide for the divorced wife. To avert this practice, the
definition of ‘wife’ was amended in the new code63 to include any woman who had been
divorced and not remarried. The inclusion of this section was hugely opposed by the
Muslim Parliamentarians of the time as interference in their personal laws. Hence, to
address these concerns, another section64 of the Cr.P.C was amended to allow an order for
maintenance to be cancelled if a judge was satisfied that the divorce had received ‘the
whole sum which, under any customary or personal law applicable to parties, was
payable on such divorce.

With this new amended in force, a divorced wife could claim maintenance under section
125 of Cr.P.C which was subject to discretion of the judge as provided under Section 127
of the new code. After this amendment, two cases came before the SC for adjudication
with respect to maintenance of a divorced Muslim wife. In both cases, the lower court
had granted maintenance to a divorced Muslim woman beyond what she had received
under Muslim law, on the grounds that the amount had to be adequate to support her. In
BaiTahira v Ali Hussain65, the SC ruled that the amendment to Section 127 did not
completely exempt a husband from paying maintenance to a destitute ex-wife, if the
amount paid to her was not adequate enough to support her. One year later, in 1980, the
SC in Fazlunbi v K. KhaderVali66 reached the same conclusion. These judgments did not
raise a mass level controversy but it they also didn’t go unnoticed in the Muslim
community.67 Full-scale controversy over Muslim Personal law broke out in 1985 in the

62
The Code of Criminal Procedure, § 488 (1898).
63
The Code of Criminal Procedure (1973).
64
Id, sec. 127(3)b.
65
AIR 1979 SC 362.
66
AIR 1980 SC 1730.
67
WILLIAMS, supra note 15, p. 130.

75
case of Mohd Ahmad Khan v Shah Bano Begum.68The brief facts of the case are as
follows: Shah Bano was married to Mohammad Ahmad Khan in 1932. In 1975, Khan
drove her out of their home, and in April 1978 she filed a petition for maintenance under
section 125 of Cr.P.C. In November 1978, Khan divorced her, and paid her ₹ 3000 to
cover the amount he claimed he owed her under Muslim personal law. After various
appeals, state High Court granted her ₹ 179.20 per month as maintenance. Khan appealed
this decision to the SC and argued that he had already paid her the amount he owed her
under their personal law. The SC disagreed, and upheld the award of maintenance to her.

This judgment caused unrest in almost entire Muslim community of India. In furtherance
of the same huge pressure was built on the then Indian government to introduce a law that
would nullify the Shah Bano judgment and to prevent any similar kind of judgment in the
future. Succumbing to the pressures of the Muslim community, the then Prime Minister
Rajiv Gandhi passed Muslim Women (Protection of Rights on Divorce) Bill in 1986.
This bill restored the pre-Shah Bano position with respect to maintenance under Muslim
personal law. The effect of these incidents was sudden and grave as the Hindu
nationalists organizations began mobilizing people to support the SC judgment and began
calling for the reform in Muslim personal law and the immediate establishment of
uniform civil code.69

4.4 Conclusion

The plurality of legal traditions through which India has undergone is clearly depicted in
the case of personal laws too. Though, in ancient India, the predominant religion was that
of Hinduism70, but still there was plurality of laws by which different sections of Hindus
were governed. Moreover, the influence of Islamic jurisprudence in medieval India made
the legal system in the country more pluralistic. But, this plurality of personal laws did
not create tensions in the private sphere of citizens as each community followed its
personal laws. The Muslim rulers largely adopted the policy of non-interference with
respect to other personal laws in order to avoid social tension. Hence, legal pluralism vis-

68
AIR 1985 SC 945.
69
WILLIAMS, supra note 15, p. 132.
70
Other religions like Buddhism and Jainism emerged out of Hinduism.

76
à-vis personal laws were practiced in India from ancient times. Further, the advent of
Britishers in the country added more plurality to the legal system of India but they did not
make substantial attempts to bring uniformity with respect to personal laws of the
country. Though, the underlying reason for their policy of non-interference was different
from that of Muslim rulers, and was majorly economic and political. Hence, it can be
aptly concluded that there was legal pluralism vis-à-vis the personal laws in India till the
time of India’s independence.

During the drafting of Indian Constitution, this issue of legal pluralism with respect to
personal laws was hugely debated. Some progressive members supported the idea of
uniform civil code but ultimately it was added as a directive principle and hence the
policy of legal pluralism vis-à-vis personal laws was retained by the Indian Constitution
but with reasonable restrictions. Though, there have been instances of the state interfering
with the personal laws (like the Hindu Code Bill and Muslim Women Bill of 1986) but
this have been only with respect to personal laws of Hindus. This approach taken by the
government with respect to personal laws of Hindus has been taken by the Hindu
traditionalists as an encroachment on their personal laws and moreover as being biased
against them.71 Hence, they have been constantly raising the demand for a uniform civil
code. Moreover, the opposite approach taken by another government in case of reforms
in Muslim personal law added more to this and made uniform civil code a serious socio-
political and legal issue in India.

Commencing with this backdrop, I intend to deal with the issue of uniform civil code in
India in the next chapter. I shall attempt to analyze the constitutional protection that has
been provided in the Indian Constitution in the form religious freedom. Moreover, I
intend to analyze the personal laws of Hindus and Muslims dealing with various aspects
of family law so as to highlight the differences between the two. I shall also try to analyze
that to what extent they comply with the framework of fundamental rights of individuals
as provided in the Indian Constitution.

71
Though, the underlying objective behind this approach was claimed to be reformatory.

77
 CHAPTER 5

THE ISSUE OF UNIFORM CIVIL CODE IN INDIA

In preceding chapter I had discussed that the policy of legal pluralism with respect to
personal laws has been practiced in India since medieval period of Indian history. This
policy of non-interference was one of the many reasons that the constitution-makers did
not compulsorily call for a uniform civil code for all citizens, and included it as a non-
enforceable and optional directive principle to be adopted in future.1 Though, in the early
years of post-independence era, the codification of Hindu personal law by Indian
government so as to reform the Hindu personal laws reinvigorated the issue of uniform
civil code in the country. Main focus of these reforms in Hindu personal laws were to
transform sacramental Hindu marriages into contractual obligations by introducing
divorce and other matrimonial remedies along the lines of the English laws and to grant
women equal inheritance rights.2This reformative wind through which Hindu personal
laws had passed, gave the Hindus a conception that their personal laws were now
reformed and progressive.3 Hence, they along with the advocates of militant secularism 4
called for a uniform civil code so that the personal laws of other religious communities,
especially the Muslims, could be reformed and brought in lines with the constitutional
mandate.

It is against this backdrop that I begin this chapter by discussing some of the underlying
values embodied and set forth within the constitutional framework of the country and
their interplay with the religious personal laws. My aim in doing this exercise is to
highlight the issues over which the demand for a uniform civil code has been furthered in
the Indian socio-political diaspora. I have also attempted to discuss that whether the
reforms in Hindu personal laws have had long-lasting effects or they are merely serving

1
Werner Menski, Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda,
The, 9 GER. LJ 211 (2008).
2
Flavia Agnes, Liberating Hindu Women, 50 ECON.POLIT. WKLY. 15 (2015).
3
RINAVERMA WILLIAMS, POSTCOLONIAL POLITICS AND PERSONAL LAWS: COLONIAL LEGAL LEGACIES AND
THE INDIAN STATE (Oxford University Press, USA 2006).
4
For different models of secularism, See generally, Rajeev Bhargava, Religion, State, and Secularism,
HANDB. COMMUN.ETHICS 401 (2010).

78
as a legal mandate (Section 5.1). Next, I have attempted to highlight the differences
between the religious personal laws of Hindus and Muslims in contemporary India with
regard to marriage, divorce, succession, maintenance and adoption (Section 5.2). Next, I
intend to discuss the judicial approach vis-à-vis the issue of uniform civil code in the
country (Section 5.3). In light of this discussion, I argue that the idea of uniform civil
code would not be an appropriate approach for a multicultural country like India which
has multiple religions present within it and where religious identity is a sensitive issue.

5.1 The Bases of the Demand for Uniform Civil Code: Constitutional
Values and the Personal Laws

The Indian Constitution being a modern development has been written comprehensively
so as to include and address almost all socio-political and economic issues which could
be thought of at that epoch of time. Being drafted in the age of human rights, the
Constitution of India embodies within its framework basic human values and guarantees
the same to all its citizens. These human values are provided in the form of fundamental
rights of the citizens. Some of these values like equality, freedom and human dignity
which are referred to in the Constitution are also intricately linked with the religious
personal laws, and hence at times are found to be in conflict with the constitutional
mandate. In this section, I stress upon the two above-mentioned values of equality and
human dignity as found in the Indian Constitution and highlight their interplay with
religious personal laws as the demand for a uniform civil code has been furthered in the
country on the basis of the same.

5.1.1 Basis of Equality

Equality has now been one of the most celebrated human values since long. It has secured
itself a place amidst basic human rights and hence can be found in the legal framework of
every nation-state. India too embodies the concept of equality in its broadest sense. The
Indian Constitution provides that “the State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India.”5Article 15 and
16 reinforce this, providing that “the State shall not discriminate against any citizen on

5
The Constitution of India (1950), Art. 14.

79
grounds only of religion, race, caste, sex, place of birth or any of them.”6 These equality
provisions read together with right to religious freedom7 enable all the individuals and
religious communities in the country to practice their religion and provide the religious
groups autonomy in their religious affairs.8 On their face, Articles 14, 15 and 16 appear to
guarantee equality to all individuals irrespective of their religion, race, caste, sex, place of
birth, descent or any of them. Hence, through a bare reading of these constitutional texts,
it can be argued that inter-group inequality has been duly protected in the country.
Therefore, the question which remains to be answered is that of the protection of intra-
group inequality.

This question of intra-group inequality has become complex in the Indian socio-legal
diaspora because of the presence of different religious personal laws in the country.
These groups are internally divided on various bases; foremost amongst them are gender
and caste. It is the gender inequality within religious groups that is relevant for my
purpose as it is one of the grounds over which the adoption of a uniform civil code is
being advocated.

Gender Inequality and the role of personal laws

Religious personal laws in India determine which law will apply to an individual
regarding marriage, divorce, maintenance, guardianship, adoption, inheritance, and
succession,9 a common thread woven through all of India’s religious personal law
systems is the patriarchal dominance of men and the unequal treatment of women.10 This
discriminating feature prevalent in the religious personal laws, particularly in the personal
laws of Hindus and Muslims, has resulted in gender inequality.11 The constitution-makers
being aware of this societal menace, took this aspect of inequality into due consideration
while drafting the Indian Constitution and provided protection against the same. One can

6
Id, Arts.15(1) & 16(1).
7
Id, Art.25 (1).
8
Id, Art. 26.
9
Laura Dudley Jenkins, Personal Law and Reservations: Violation and Revision in Contemporary India,
RELIGION AND PERSONAL LAW IN SECULAR INDIA: A CALL TO JUDGMENT 112 (2001), p. 104.
10
Shalina A. Chibber, Charting a New Path Toward Gender Equality in India: From Religious Personal
Laws to a Uniform Civil Code, 83 IND LJ 695 (2008).
11
ArachanaParashar, Gender Inequality and Religious Personal Laws in India, 14 BROWN J WORLD AFF
103 (2008).

80
easily identify the protection against gender inequality by reading the above mentioned
equality provisions12 with Article 13. The latter provision states that all “laws in force” in
India at the commencement of the Constitution, “in so far as they are inconsistent with
the provisions of this Part, shall, to the extent of such inconsistency, be void”. Hence, on
their face article 13, 14, 15 and 16 appear to guarantee women’s equality with men and
render religious personal laws, which were in force at the time of the Constitution’s
commencement, void to the extent that they are inconsistent with the equality
provisions.13 Moreover, the right to religious freedom is also not absolute and has been
subjected to four reasonable restrictions which are health, morality, public order and
other fundamental rights.14 This restriction in the form of other fundamental rights are
suggestive of the fact that the religious groups can enjoy the autonomy of managing their
religious affairs to the extent to which they do not affect the fundamental rights of
individuals.

Going by the above discussion, it can be discerned that though Indian constitutional
framework has established due protection against gender inequality but the prevalence of
religious personal laws has diluted the same. Moreover, the constitutional status of
religious personal laws has not been as clear cut for Indian courts. The Indian Supreme
Court has never directly addressed the issue, while lower courts are split on the
Constitution’s applicability to religious personal laws.15 Plethora of litigation dealing
with gender discrimination have been brought to the notice of the courts in the country,
but the courts seem convinced that Part III of the Constitution does not hit religious
personal laws, and hence, are generally found resistant in interpreting the same. For
instance, in Nalini v. State of Bihar,16 the Patna High Court held that the rule that
daughters cannot be coparceners is not affected by the equality provisions of the Indian
Constitution. Moreover,the Supreme Court of India, in Ahmedabad Women Action Group

12
The Constitution Of India. See, Arts. 14, 15 & 16.
13
Chibber, supra note 10, p. 698.
14
The Constitution Of India, art. 25.
15
See, Kirsten K. Davis, Equal Protection for Women in India and Canada: An Examination and
Comparison of Sex Equality Provisions in the Indian and Canadian Constitutions, 13 ARIZ J INTL COMP L
31 (1996). See also, Chibber, supra note 10, p. 697-98.
16
AIR 1977 Pat. 171.

81
v. Union of India,17 dismissed three writ petitions which challenged the constitutionally of
various provisions of different personal laws on the ground, inter-alia, of being violative
of articles 14 and 15. The Court observed that the “questions involved in the case were
the issue of State policies with which the court will not ordinarily have any concern.”
The judicial trend, so far, clearly indicates the reluctance of the Courts to determine the
constitutionality of various personal laws on the touchstone of equality provisions.

5.1.2 Basis of Dignity

Dignity is another human value that has been recognized and given due protection by the
Indian Constitution. Article 21 of the Constitution provides that “No person shall be
deprived of his life or personal liberty except according to procedure established by
law”.18In Francis Coralie Mullin v. The Administrator, Union Territory of Delhi,19while
dealing with the question that whether the right to life is limited only to protection of
limb or faculty or does it go further and embrace something more? Bhagwati J. observed
that “We think that the right to life includes the right to live with human dignity and all
that goes along with it…Every act which offends againstor impairs human dignity would
constitute deprivation protanto of this right to live and it would have to be in accordance
with reasonable, fair and just procedure established by law which stands the test of other
fundamental rights”.20Such liberal interpretation given to Article 21 and reading the same
along with Article 14 and 19 establish that any act which demeans the dignity of any
individual is violation of his or her basic human rights guaranteed by the Constitution.
Now, the presence of religious personal laws and Article 26 of the Indian Constitution
which provides “every religious denomination or any section thereof to manage its own
affairs in matters of religion” are sometimes found in direct conflict with dignity of
individuals or a specific group like women belonging to the religious group.

This threat to dignity of individuals or a group of individuals is another value over which
the issue of uniform civil code is furthered in India. The provisions in Muslim personal
law regarding oral divorce, polygamy and maintenance after divorce are found to be used

17
(1997) 3 SCC 573.
18
The Constitution Of India (1950), Art. 21.
19
1981 AIR 746.
20
Id.

82
frequently by Muslim men. These practices are on their face a violation of women’s
human rights and their dignity and hence are opposed vehemently by secular and
women’s rights activists. The advocates of uniform civil code have put forth these
provisions of Muslim personal laws which are not seen to be in accordance with the
values of human dignity and base their demand of UCC on the same. The Hindu political
parties at the same time portray this as a special concession to Muslims and are
demanding UCC from this stand point.21

Now, this non-conformity of religious personal laws with the constitutional mandates of
equality and dignity has promoted two views about personal laws in the country. One
view advocates no separate personal laws for various religious communities, and calls for
immediate implementation of UCC as per Article 44 of the Constitution; another view
advocates retaining separate laws, but making some reforms which address the above
lacunae.22 Therefore, it seems pertinent to me discuss that whether the reformation of
Hindu personal law by bringing about a uniformity in it has been a worthwhile measure
or has it only served as a legal reality and has achieved minute success on the ground.

5.1.3 Legal v. Social Reality: Hindu Law Reforms

UCC was deliberated upon in the constituent assembly for two main purposes. First being
the unification of the country which had recently been partitioned on religious lines.
Second, the religious personal laws of the communities were patriarchal and harsh
towards women generally. Hence, the constitution-makers thought of UCC which would
be helpful in reforming the religious personal laws. But for some reasons as discussed in
the previous chapter,23 this idea of implementing UCC for all citizens was dropped and
included as directive principles after stiff resistance from minority religious groups. After
independence, Mr. Nehru being the Prime Minister of India went on with the task of
reformation of Hindu personal law but no interference was made with Muslim personal
law. The Hindu Code Bill was passed by dividing the same into four parts. Moreover,
since the political impediment to reform the Hindu law was grave, several balancing acts
21
Razia Patel, Indian Muslim Women, Politics of Muslim Personal Law and Struggle for Life with Dignity
and Justice, ECON. POLIT. WKLY. 44 (2009).
22
Id, at 44.
23
See, Chapter 4, under head 4.3 “Personal Laws in Post-Colonial Era”.

83
had to be performed. Crucial provisions empowering women had to be constantly diluted
to reach the level of minimum consensus. While projecting the reforms as pro-women,
male privileges had to be protected. While introducing modernity, archaic Brahmanical
rituals had to be retained. While claiming uniformity, diverse customary practices had to
be validated. Only by adopting such maneuvering tactics could the state reach its goal of
Hindu law reform.24

It is interesting to see how this modern, secular, gender-just and uniform act unfolded on
the ground in subsequent years. In the following two decades, there were several cases
where husbands approached courts to stop their wives taking up gainful employment in a
place of their choice by filing petitions for restitution of conjugal rights. While upholding
thehusband’s unconditional right, the courts made the following comments: “A wife’s
first duty to her husband is to submit herself obediently to his authority and to remain
under his roof and protection.”25“The Hindu law imposes on the wife the duty of
attendance, obedience to and veneration for the husband to live with him wherever he
chooses to reside.”26Moreover, the mingling of Brahmanical rituals and customary
practices with English principles resulted in absurd and ridiculous rulings regarding the
validity of Hindu marriages, and women have been the worst sufferers.This ambiguity
has provided a Hindu husbands scope to contract bigamous marriages. Since the law
recognizes only monogamous marriages, the women in polygamous relationships are
denied their rights. In the absence of any clear proof, the man has the choice of claiming
either his first or the subsequent relationship as a valid marriage to escape from his
financial liability towards the other woman. A Hindu husband can routinely deny the
marriage or declare that the woman is not his wife and hence deny her maintenance, as
there is no official record of any of these rituals. So the progressive sounding provision of
monogamy not only turned out to be a mockery but in fact even more detrimental to
women than the customary Hindu law which recognized rights of wives in polygamous
marriages.27

24
Agnes, supra note 2.
25
Gaya Prasad v Bhagwat, AIR 1966 MP 212.
26
SurinderKaur v Gardeep Singh, AIR 1973, P&H 134.
27
Agnes, supra note 2.

84
While examining the developments in Hindu law, Werner Menski, an expert on Hindu
law, comments that Hindu law has always been a people’s law. Hence, something as
complex as Hindu personal law could not be reformed away and abolished by a statute,
nor could its influence as a legal normative order that permeates the entire socio-legal
Indian field be legislated into oblivion. While the law was codified, in social reality all
that happened was that the official Indian law changed, while more and more of Hindu
law went underground, populating the realm of the unofficial law.28

It is abundantly clear from this discussion that though the Hindu law stands reformed in
the eyes of law but in reality, this reformation and unification of Hindu personal law has
been a failure due to societal non-acceptance. Hence, the basis over which UCC has been
advocated does not exist in reality. Moreover, the experiment of unifying personal laws
to bring them under the umbrella of one single code has also resulted into a failure. Now,
that I have shown that uniformity of law is not the solution in a multicultural and
religiously plural country like India, it seems common-sensical to see the differences that
prevail among Hindu and Muslim personal laws in India. Only then can an argument for
or against UCC can be duly defended.

5.2 Comparing Hindu and Muslim Personal Laws in Contemporary

India

Hindu and Muslim legal system are termed as religious legal systems because major
source of law in these legal traditions is religious and customary law. 29 One important
reason for these religions to be treated as an important source of law is that they deal with
every aspect of human life. As originating in differing social and contextual conditions,
there is considerable difference between the two with respect to the common subject-
matters they deal with. In this section, my focus shall be to compare the Hindu and
Muslim personal laws in India. I shall also attempt to analyze in light of legal
development in the country that whether the two personal law systems are converging or

28
WERNER MENSKI, HINDU LAW: BEYOND TRADITION AND MODERNITY (Oxford University Press 2003), p.
24-5.
29
See generally, RENE DAVID & JOHN EC BRIERLEY, MAJOR LEGAL SYSTEMS IN THE WORLD TODAY: AN
INTRODUCTION TO THE COMPARATIVE STUDY OF LAW (Simon and Schuster 1978).

85
diverging in contemporary times in Indian personal law realm. The bases of comparison
are laws relating to marriage, divorce, succession and maintenance in the two personal
laws. Also, as the Hindu personal laws have been codified in the form of Hindu Code
Bill, hence I would consider them as relevant sources for my exercise.

5.2.1 Marriage

5.2.1.1 Hindu Law

The Hindu Marriage Act, 1955 has made a Hindu marriage both, a contract and a
sacrament. It has further categorized marriages into three categories, i.e. valid, voidable
and void marriages. Section 5 of the Act stipulates five conditions which are to be
satisfied in order to make a marriage between two Hindus valid.30 Several observations
which can be discerned through a bare reading of this provision are; first, it prohibits
bigamy; second, it lays down minimum criteria of mental capacity of the two parties.
Third, it expressly signifies the age of the parties and lastly, it prohibits the marriage
between two Hindus who fall within the degree of prohibited relationship or are sapindas
of each other unless the customs or usage governing each of them allows for the same.
The only lacuna which seems to exist in this provision is that of consent of parties. The
provision does not state that consent of the parties is necessary for a valid marriage
though in case of bride being less than 18 years of age, the consent of her guardian was
necessary.

Section 11 of the Act makes a marriage between two Hindus void; first, if either of the
party to the marriage has a spouse living. Second, if the parties to the marriage are within

30
The Hindu Marriage Act, § 5 (1955). The section runs as follows: A marriage may be solemnized
between any two Hindus, if the following conditions are fulfilled, namely:—
i. neither party has a spouse living at the time of the marriage;
ii. at the time of the marriage, neither party;
a) is incapable of giving a valid consent of it in consequence of unsoundness of mind; or
b) though capable of giving a valid consent has been suffering from mental disorder of such
a kind or to such an extent as to be unfit for marriage and the procreation of children; or
c) has been subject to recurrent attacks of insanity or epilepsy;
iii. the bridegroom has completed the age of twenty one years and the bride the age of eighteen years
at the time of the marriage;
iv. the parties are not within the degrees of prohibited relationship unless the custom or usage
governing each of them permits of a marriage between the two;
v. the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two.

86
prohibited degree of relationship. Third, if the two parties are sapindas of each other.31
Further, Section 12 lays down the conditions when the marriage between two Hindus is
voidable. It provides that any marriage, which has not been consummated owing to the
impotency of husband or where either party is incapable of giving a valid consent or such
consent is obtained by fraud or force as to a material fact or that the wife was pregnant at
the time of marriage by some other person, is voidable.32 Hence, a marriage may be
annulled by a decree of nullity under Section 12 (1) (c) of the Act on the ground that the
consent was obtained from the party to the marriage or the guardian by force or fraud. 33
Moreover, the Act does not provide for a compulsory registration of marriages.34 This
sometimes has proved to be an escape route for the Hindu males from their liability of
maintaining the wife as there is no clear and conclusive proof of the marriage.

5.2.1.2 Muslim Law

Marriage according to Muslim law is not a sacrament but a civil contract. It is not a
sacrament as no religious ceremony is made obligatory. Hence, it is essential to the
validity of Muslim marriage that there should be; first, a proposal made by or on behalf
of one of the parties to the marriage and an acceptance of the latter proposal by or on
behalf of the other. Second, the proposal and acceptance should be made in the presence
and hearing of two male or one male and two female witnesses, who must be sane and
adult Muslims. Third, the proposal and acceptance must be expressed at one meeting. 35
According to Shia law the presence of witness is not necessary for a
marriage.36Moreover, registration of marriage is not required as an essential requisite for
a valid marriage though the same is not prohibited. Further, Muslim law divides marriage
into three categories, viz. valid (sahih), or irregular (fasid), or void from the beginning
(batil). The Shia law does not recognize the distinction between irregular and void
marriages. According to that law, a marriage is either valid or void.

31
Id, sec. 11.
32
Id, sec. 12.
33
DINSHAHFARDUNJIMULLA&SATYAJEET A. DESAI, PRINCIPLES OF HINDU LAW. (Butterworths India, 21st
ed. 2010), p. 859-60
34
The Hindu Marriage Act, § 7.
35
DINSHAHFARDUNJIMULLA&IQBAL ALI KHAN, PRINCIPLES OF MAHOMEDAN LAW (Lexis Nexis,
ButterworthsWadhwa, Nagpur, 20th ed. 2013), p. 331.
36
Id, p. 332.

87
The marriages which are not valid are either irregular or void. Those which fall under the
category of irregular marriages are following: A marriage without witnesses, or a
marriage with a idolatress or fire-worshipper, or a marriage by a Muslim man with fifth
wife, or a marriage with a woman undergoing her iddat, or a marriage with a woman so
related to the wife by consanguinity, affinity, or fosterage, that if either of them had been
a male, they could not have lawfully intermarried.37 Marriages that are irregular under
Sunni law are void under Shia law.

The marriages which fall under the category of void marriages are following: A marriage
with a Muslim whose husband is living and who has not been divorced by his husband, or
a marriage to another man by a Muslim woman who has her husband living, or a
marriage with a woman prohibited by reason of consanguinity, affinity, or fosterage is
void.38

5.2.2 Divorce

5.2.2.1 Hindu Law

In customary Hindu law, divorce was not recognized as marriage was conceptualized as
an unending relationship. But, with the passage of Hindu Code Bill, divorce was given
legal recognition in Hindu personal law. The Hindu marriage Act of 1955 prescribes
certain grounds on which either of the party to the marriage can file a petition seeking
divorce. Section 13 (1), (1-A), (2) and section 13-B lay down the grounds on which a
petition for divorce can be presented. The grounds provided in section 13(1) and (1-A)
are available to both husband and wife,39 while section 13 (2) provides additional grounds

37
Id, p. 340-41.
38
Id, p. 340.
39
The Hindu Marriage Act, 1955.
Section 13(1) Any marriage solemnized, whether before or after the commencement of the Act, may, on a
petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that
the other party-
(i) has, after the solemnization of the marriage had voluntary sexual intercourse with any person
other than his or her spouse; or
(ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two years
immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion ; or

88
for divorce to a wife.40 Section 13-B of the Act provides for divorce by mutual consent. 41
Moreover, customary divorce has also been given recognition through section 29 of the
Act.42

(iii) has been incurably of unsound mind, or has suffering continuously or intermittently from
mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be
expected to live with the respondent.
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from veneral disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vii) has not been heard of as being alive for a period of seven years or more by those persons who
would naturally have heard of it, had that party been alive.
Section 13(1-A) Either party to a marriage, whether solemnized before or after the commencement of
this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the
ground-
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a
period of one year or upwards after the passing of a decree for judicial separation in a
proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a
period of one year or upward after the passing of a decree of restitution of conjugal rights in a
proceeding to which they were parties.
40
Id. Section 13(2) A wife may also present a petition for the dissolution of her marriage by a decree of
divorce on the ground-
(i) in the case of any marriage solemnized before the commencement of this Act, that the
husband had married again before the commencement or that any other wife of the husband
married before such commencement was alive at the time of the solemnization of the
marriage of the petitioner: Provided that in either case the other wife is alive at the time of the
presentation of the petition;
(ii) (that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or
bestiality; or
(iii) that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, (78 of 1956), or
in a proceeding under Section 125 of the Code of Criminal Procedure, 1973, (Act 2 of 1974)
or under corresponding Section 488 of the Code of Criminal Procedure, (5 of 1898), a decree
or order, as the case may be, has been passed against the husband awarding maintenance to
the wife notwithstanding that she was living apart and that since the passing of such decree or
order, cohabitation between the parties has not been resumed for one year or upwards; or
(iv) that her marriage (whether consummated or not) was solemnized before she attained the age
of fifteen years and she has repudiated the marriage after attaining that age but before
attaining the age of eighteen years.
41
Id. Section 13-B
(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be
presented to the District Court by both the parties to a marriage together, whether such marriage was
solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976, on the
ground that they have been living separately for a period of one year or more, that they have not been able
to live together and that they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made earlier than six months after the date of the presentation of the
petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is
not withdrawn in the meantime, the Court shall, on being satisfied, after hearing the parties and after
making such inquiry as it thinks fit, that a marriage has been solemnized and that the avermentsin
thepetition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the
date of the decree.
42
Id, sec. 29 (2).

89
5.2.2.2 Muslim Law

As the conception of marriage in Muslim law is that of a civil contract therefore it also
provides for dissolution of marriage. The contract of marriage under Muslim law may be
dissolved in following two ways:

A) By the death of the spouse;

B) By the act of the parties.43

Divorce by death of the spouse

The death of the husband or the wife operates in Muslim law as dissolution of marriage.
When the wife dies, the husband may remarry immediately, but the widow has to wait
until the expiration of period of iddat which in the case of death is four months and ten
days from the death of her husband or, if on the expiration of this period she is pregnant,
until she has delivered the child.44

Divorce by act of the parties

Dissolution by the act of parties may in Muslim law be in the following ways:

1) By the husband
The husband in Muslim law can divorce his wife in following ways:
a) By repudiation:
It is usually referred as talaq under Muslim law and can be revocable or
irrevocable. The forms of talaqmay be classified as follows:
i) Talaq al-sunna:
This is the most approved form of talaq as it is in conformity with
the dictates of the Prophet. It consists of one single
pronouncement in the period of tuhr or purity, followed by
abstinence from sexual intercourse during the period of
tuhr(purity) as well as during the whole of iddatwhich is in this
case of three months or if the woman is pregnant, until delivery.

43
Asaf AA Fyzee,Outlines of Mohammedan Law, OUP (2008), p. 119.
44
Id.

90
 If any intercourse takes place during this period then the divorce
becomes void. This form of talaq is also referred to as ahsan.45
Another form of talaq al-sunna is hasan. This is less approved
than the former. This form requires three successive
pronouncements during three consecutive period of purity.
Moreover, each pronouncement should have been made at a time
when no intercourse has taken place during that particular period
of purity.46 This can also be revoked.
b) By vow of continence:
It is also known as ila. In this form the husband swears not to have sexual
intercourse with the wife and abstains for four months or more after which
the marriage stands dissolved.47
c) By injurious assimilation:
It is also known as zihar. In this form the husband swears that to him the
wife is like ‘the back of his mother’ and hence the marriage is dissolved.48
d) Delegated divorce:
The husband in Muslim law has the power to delegate his own right of
pronouncing divorce to some third person or to the wife herself. This is
also known as talaq-e-tafwid.49
2) By Consent
Dissolution of marriage by consent is another feature of Islamic law. The
essential condition in this form of dissolution is the consent of the husband
and wife. If the desire to separate emanates from the wife it is called khulabut
if the divorce is effected by mutual consent, it is known as mubara’at.50
3) Divorce by judicial interference:
The Islamic law provides for divorce by mutual imprecation which is also
called as li’an. In this form, if a husband accuses his wife of adultery but is

45
Id, at 121.
46
Id.
47
Id, at 128.
48
Id.
49
Id, at 125.
50
Id, at 129.

91
 unable to prove the same then the wife in such cases can file a suit for
dissolution of marriage.
Moreover, the Dissolution of Muslim Marriage Act of 1939 provides for
certain grounds on which a Muslim woman can file a petition for divorce.51
5.2.3 Succession

Succession to one’s property is determined by two ways; firstly, by the will of the
testator, and secondly, when the testator dies intestate, i.e. without making a will. In this
section, I shall be dealing with intestate succession in the two personal laws.

51
The Dissolution of Muslim Marriage Act, 1939, § 2. The section runs as follows: A woman married under
Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of
the following grounds, namely:—
(i) that the whereabouts of the husband have not been known for a period of four years;
(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;
(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of
three years;
(v) that the husband was impotent at the time of the marriage and continues to be so;
(vi) that the husband has been insane for a period of two years or is suffering from leprosy or virulent
venereal disease;
(vii) that she, having been given in marriage by her father or other guardian before she attained the age of
fifteen years, repudiated the marriage before attaining the age of eighteen years:
Provided that the marriage has not been consummated;
(viii) that the husband treats her with cruelty, that is to say,—
(a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not
amount to physical ill-treatment, or
(b) associates with women of evil repute or leads an infamous life, or
(c) attempts to force her to lead an immoral life, or
(d) disposes of her property or prevents her exercising her legal rights over it, or
(e) obstructs her in the observance of her religious profession or practice, or
(f) if he has more wives than one, does not treat her equitably in accordance with the injunctions of the
Quran;
(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim law:
Provided that—
(a) no decree shall be passed on ground (iii) until the sentence has become final;
(b) a decree passed on ground (i) shall not take effect for a period of six months from the date of such
decree, and if the husband appears either in person or through an authorized agent within that period and
satisfies the Court that he is prepared to perform his conjugal duties, the Court shall set aside the said
decree; and
(c) before passing a decree on ground (v) the Court shall, on application by the husband, make an order
requiring the husband to satisfy the Court within a period of one year from the date of such order that he
has ceased to be impotent, and if the husband so satisfies the Court within such period, no decree shall be
passed on the said ground.

92
5.2.3.1 Hindu Law

The joint and undivided family is the normal condition of Hindu society. Prior to the
Hindu Succession Act of 1956, the laws relating to intestate succession were governed by
two major schools of Hindu law, i.e. Dayabhaga (Bengal) and Mitakshara (rest of India).
These two systems of inheritance in Hindu law were different from each other in
following aspects:

i. The governing principle of the Dayabhaga system of inheritance is the religious

efficacy, but according to the Mitakshara system, sometimes the governing
principle is consanguinity, i.e., the nearness of blood and sometimes religious
efficacy.52
ii. Mitakshara system recognizes two modes of devolution of property, namely,
survivorship and succession. Joint family property devolves by survivorship and
the property held in absolute severalty by the last owner is governed by the rule of
succession.53 Whereas under the Dayabhaga system, succession is the only mode
of devolution of property whether it is joint, separate or self-acquired.54
iii. Under the Mitakshara system, son gets a right by birth in the joint family property
and is entitled to insist on partition during the lifetime the father. For the same
reason, the son can restrain unauthorized alienation of property by the father.
While in the Dayabhaga system, such right is denied and the son cannot demand a
partition during the lifetime of the father as the same is the absolute owner and
can deal with the property in any manner whatsoever.55
iv. According to the Mitakshara system, a coparcener's share in joint family property
is not absolute and constantly fluctuates due to the birth or death of other
coparceners. Coparceners therefore do not have absolute right to transfer their

52
MULLA& DESAI, supra note 33, p. 110.
53
For a vivid description on the mode of devolution of property according to Mitakshara system, SeeId, at
118.
54
Id, at 110.
55
DebaratiHalder& K. Jaishankar, Property Rights of Hindu Women: A Feminist Review of Succession
Laws of Ancient, Medieval, and Modern India, 24 J. LAW RELIG.663 (2008).

93
 shares. While in the Dayabhaga system, the share of the heirs of joint family
property is definite and each can sell his particular fraction of the share.56
v. According to the Mitakshara system, a womancould never become a coparcener.
Moreover, widow of a deceasedcoparcener could not enforce partition of her
husband’s share against hisbrothers or other coparceners. Property rights for
Hindu women were severely restrictedby this school of interpretation. While in
the Dayabhaga system, if there are no male descendants, a widow has the right to
succeed to her deceased husband’s share and enforce partition.57

Hindu Succession Act (HSA), 1956

As mentioned before, before the HSA came into force, different systems of succession to
the property of a Hindu were in vogue in different parts of the country. These rules of
succession were heterogeneous and patriarchal. The HAS not only gave new rules of
succession, but made revolutionary changes by laying down a uniform and
comprehensive system of succession, which applies to both, Dayabhaga and Mitakshara
schools.58 This Act was amended in 1991, 2002 and again in 2005.
The changes brought about the amendments in the Act are:
(i) The Act applies to all Hindus laying down a uniform and comprehensive system
of inheritance applicable to the same throughout the country.
(ii) The classification of heirs as was found in the two schools59 has been abolished
and new classification of heirs is done by dividing them into four categories, viz.
heirs of Class I, II, agnates and cognates.60
(iii)Rules of devolution of Mitakshara coparcenary property have been altered.
Section 6 of the HSA after being amended in 2005 provides that if a member of a
Mitakshara coparcenary dies intestate then his interests devolves not by
survivorship but by testamentary or intestate succession.61 Further, in Mitakshara

56
Id.
57
Id.
58
2 B M GANDHI, FAMILY LAW (Eastern Book Company, First ed. 2013), p. 56.
59
The division of heirs in Mitakshara system was: a) GotrajaSapinda, b) Samanodakas, and c)
Bandhusundar while that in Dayabhaga System was: a) Sapindas, b) Sakulyas, and c) Bandhus.
60
B M GANDHI, supra note 58.
61
The Hindu Succession Act, 1956, sec. 6(3).

94
 law, a coparcener had no right to dispose of his undivided coparcenary interest,
even if the other consented to it. This restriction is now totally abolished.62
(iv) The Act abolishes a Hindu woman’s limited estate. Henceforth, any property held
by a female Hindu, howsoever acquired, is to be her absolute property over which
she has complete and unrestricted power to deal with.63
(v) Removal of disqualifications of heirs on the grounds of certain defects,
deformities and diseases are now abolished.64

5.2.3.2 Muslim Law

Compared to customary Hindu law, the Muslim law of succession is simple as it does not
distinguish between self-earned property and ancestral property. It has also taken special
care of blood relations and has admirably balanced the competing interests as well.65 A
Muslim’s heritable property is what remains after the payment of charges including:
a) Funeral expenses of the deceased to a reasonable amount together with death-bed
charges, including fees for medical attendance;
b) The expenses of obtaining probate or letters of administration;
c) The wages due for services rendered to the deceased within three months next
preceding his death by any laborer, artisan or domestic servant; and
d) All debts of deceased.66
Under Muslim law, any possible heir does not acquire property of a person by mere birth.
The right of an heir comes into existence for the first time only on the death of the
propositus. Further, successors to intestate are divided into three classes:
i) Class I or Quranic Sharers,
ii) Class II or Residuaries or agnates, and
iii) Class III or Distant kindred or cognates.

62
Id, sec 30 expl.
63
B M GANDHI, supra note 58, p. 57.
64
The Hindu Succession Act, 1956, sec. 28.
65
B M GANDHI, supra note 58, p. 119.
66
Id, at 121-22.

95
Class I heirs are the persons declared as heirs by the Quran. These are the primary
beneficiaries of a deceased person and are his/her immediate heirs. Class II heirs take up
the property after Class I heirs, though mainly they are comprised of male agnates. Class
III heirs are generally who are related to the deceased through a female of the family.
This class includes children of married daughters and sisters who become part of
another’s family and hence can be aptly called cognates.67
As per the rules, the Quranic heirs are given their share first. After this, if some property
is left, share is given to the residuary qualified to inherit. Notably, the residuaries come in
only when there are either no Quranic heirs or when the shares of the Quaranic heirs do
not exhaust the whole. Only on the total failure of the heirs belonging to Class I and II,
distant kindred or Class III heirs come in. One peculiar of Muslim inheritance law is that
the share of all heirs of all the classes has been fixed by the Quran.68

5.2.4 Maintenance
The relief of maintenance is considered as an obligation in both, Hindu and Muslim
personal laws. Moreover, the realm of maintenance not only stretches to obligations
towards one’s spouse but also to obligations towards one’s parents and children. In this
section, I shall discuss the issue of maintenance in the two personal law systems.

5.2.4.1 Hindu Law

The Hindu Adoption and Succession Act (HAM), 1956 provides for maintenance of wife,
children (legitimate and illegitimate) and elderly or infirm parents. Section 18 of the
HAM Act provides that “A Hindu wife shall be entitled to be maintained by her husband
during her lifetime”.69 Further, it retains the wife’s right of maintenance despite her living
separate from the husband on certain mentioned grounds.70 The right to maintenance of
the wife is lost only by the reason of her being unchaste or if she ceases to be a Hindu. 71

67
Id, at 123-24
68
Id, at 124. For the scheme of distribution of shares among heirs, SeeId, at 137-38.
69
The Hindu Adoption & Maintenance Act, 1956, sec. 18.
70
Id, sec. 18(2).
71
Id, sec. 18(3).

96
Maintenance of widowed daughter-in-law, children and aged parents is provided under
sections 19 and 20 of the Act. The quantum of maintenance of maintenance is not
expressly provided for and the discretion for the same rests with the courts.72

5.2.4.2 Muslim Law

Muslim law also provides for maintenance of wives, children, parents and other relatives.
A Muslim husband is bound to maintain his wife unless she is too young for matrimonial
intercourse, so long as she is faithful to him and obeys his reasonable orders. But he is
not bound to maintain a wife who refuses herself to him, or is otherwise disobedient,
unless the disobedience is justified by non-payment of prompt dower, or she leaves
husbands house on account of his cruelty.73 After divorce, the wife is entitled to
maintenance during the period of iddat. If the divorce is not communicated, she is
entitled to maintenance until she is informed of the divorce.74 If the husband neglects or
refuses to maintain his wife without any lawful cause, the wife may sue him for
maintenance.75 Or, she may apply for order of maintenance under the provisions of Code
of Criminal Procedure, in which the Court may order the husband to make a monthly
allowance in the whole for her maintenance no exceeding five hundred rupees.76
As to the issue of claiming past maintenance, the same cannot be claimed unless is based
on a specific agreement.77The husband and wife or their guardian may enter into
agreement whereby the wife is entitled to recover maintenance from her husband, on the
happening of some special event such as ill-treatment, disagreement, husband‘s second
marriage etc. but the agreement in the marriage contract that the wife would not be
entitled to maintenance is void. The key consideration in such agreement is that the same

72
Id, sec. 23.
73
MULLA&IQBAL ALI KHAN, supra note 35, p. 351.
74
Id, at 352.
75
Id, at 351.
76
Id.
77
Id.

97
should not be opposed to the public policy and Muslim Law.78 Moreover, a Muslim is
also bound to maintain his children79, parents80 and other relatives.81

5.3 Convergence of Hindu and Muslim Personal Laws

From the discussion done under the preceding section, it is evident that there are certain
differences and similarities in the personal law system of Hindus and Muslims with
respect to different concepts of family law. In this section, I argue that the difference
between the two is disappearing through legal developments both, in the personal law
system and other laws which have an incidental effect on personal laws, in India.
The difference with respect to marriage was primarily that the Hindu marriage was
historically treated as a sacrament while the Muslim marriage was a civil contract. Now,
after the passage of Hindu Marriage Act, 1955 this difference has been done away with
and a Hindu marriage is now contractual in nature though its sacramental nature has been
retained. Moreover, as to issue of polygamy, Muslim personal law allows it but the Hindu
personal law has made the practice of bigamy a criminal act punishable under section 494
of Indian Penal Code. But still the social reality is contrary to the desired legal goal. 82 As
to the issue of age of marriage in the two personal laws, the Prohibition of Child
Marriage Act, 2006 provides that the age of marriage for boys is twenty-one years while
that for girls is eighteen years.83
The difference with respect to divorce is quite significant as the Muslim personal law
provides unfettered rights to Muslim men to divorce their wives while the Hindu
Marriage Act of 1955 has provided several methods for divorce available to both men
and women. This shortcoming in the Muslim personal law has been taken care of by the
Dissolution of Muslim marriage Act, 1939 which provides certain grounds over which a
woman can seek for divorce. Moreover, the legitimacy of triple talaq is also pending in
the highest court of the country. The issue of maintenance which at times is found inter-
related with that of divorce has also been a contentious one, especially with respect to

78
Id, at 356.
79
Id, at 369.
80
Id, at 373.
81
Id, at 373-74.
82
See, Agnes, supra note 2. See also, head 5.2.3 in this chapter.
83
The Prohibition of Child Marriage Act, 2006, sec. 2(a).

98
Muslim personal law. The quantum of maintenance for Muslim men that was to be paid
under section 125 of Code of Criminal Procedure was fixed at ₹ 500 monthly. But the
Muslim Women (Protection of Rights on Divorce) Act which was passed after the Shah
Bano controversy has left this limit open, and hence the quantum of compensation is now
at the discretion of the courts as in Hindu personal law.84
With respect to the issue of succession, the Hindu personal law was priorly complex and
unfair towards women while the Muslim law was more balanced and gave wider
protection to women. But since the 2005 amendment of the Hindu Succession Act, the
position in Hindu personal law is now quite similar to that of Muslim law. The changes
brought about by the amendment have promoted gender equality in the Hindu succession
laws. With this short discussion with respect to the differences in Hindu and Muslim
personal laws, it can be aptly argued that the two are to a large extent similar to each
other. Moreover, this difference has been diluted by reforms in personal laws as well as
general laws of the country through amendments.

5.4 Indian Judiciaryand the Issue of Uniform Civil Code

India, as I have discussed, has quite consciously over decades has developed a fascinating
reflection of the original ideal of the Uniform Civil Code, in the form of a harmonized
system of legal regulation that maintains and skillfully uses the input of personal status
laws and yet achieves a measure of legal uniformity. The job of Indian legislature in this
respect has been commendable. Hence, in this section, I intend to analyze the role of
Indian judiciary with respect to the issue of uniform civil code. To achieve my goal, I
analyze certain leading judicial decisions of the Supreme Court of India with respect to
personal laws and uniform civil code. The cases discussed in this section are those in
which, the court while adjudicating matters related to personal laws, incidentally
discussed the issue of a uniform civil code.

84
Menski, supra note 1, p. 219.

99
 1. Shah Bano Case85

This case happens to be one of the most controversial judgments of the Apex Court in
Independent India engaging with the issue of personal law and uniform civil code. The
issue in this case was that whether the provisions of the Criminal Procedure Code, 1973
providing for maintenance to divorced women to be finally adjusted in their actual
entitlement under their personal law was applicable to Muslims also.86 In arriving at its
decision that “there is no escape from the conclusion that a divorced Muslim wife is
entitled to apply for maintenance under section 125 of CrPC …”,87 the Court went into
the details of various authorities and translations of the verses of the Holy Quran to
support their view. This interpreting the holy texts of the Muslim community by the
Court was taken as judicial over-reach by the Muslim community in the country.88
What made the situation worse was that the Court chose to close its judgment by giving
an opinion that the actual and final solution of such problemswas enactment of a uniform
civil code. It observed that, “a common Civil Code will help the cause of national
integration by removing disparate loyalties to laws which have conflicting ideologies.”89

2. JordenDiengdeh’s Case90

The controversy regarding uniform civil code which arose from the judgment in Shah
Bano case was yet not silenced when the decision of the Supreme Court in this case
relating to Christian personal law added more to it. In this case, a Sikh gentleman married
a Christian woman. After some time of the marriage, she approached the court for a
decree of nullity of marriage under the Indian Divorce Act, 1969 on the ground of
impotency of her husband. Since the marriage was solemnized by Christian rites under
the Christian Marriage Act, 1872. Noting that it was not possible for the court to give the
desired relief under the existing Christian laws the Courtcalled for the urgent need to

85
Mohd. Ahmad Khan v. Shah Bano Begum &Ors., 1985 AIR 945.
86
For facts of the case, See Ch. 4 of the dissertation under the head 4.3.3.
87
Mohd. Ahmad Khan, Supranote 85.
88
Prabodh Kumar Garg, Muslim Personal Law, Uniform Civil Code and Judicial Activism- A Critical
Study. (2014) (University of Lucknow).
89
Mohd. Ahmad Khan, Supranote 85.
90
JordenDiengdeh v. S.S. Chopra, AIR 1985 SC 935.

100
enact a uniform civil code. The learned judges reproduced the ground of divorce and
nullity under various statutes (Indian Divorce Act, 1869); Parsi Marriage and Divorce
Act, 1936; Dissolution of Muslim Marriage Act, 1939; Special Marriage Act, 1954;
Hindu Marriage Act, 1955 and concluded :“It is thus seen that the laws relating to
judicial separation, divorce and nullity of marriage is far from being uniform. Surely,
the time has now arrived for a complete reform of the laws relating to marriage and
other related issues. It is required that a uniform law should be enacted and made
applicable to all people irrespective of religion and caste.…. We suggest that the time has
come for the intervention of the legislature in these matters to provide for uniform code
of marriage and divorce….”91

3. SarlaMudgal’s Case92

About a decade from the judgment in Shah Bano and Diengdeh’s case, the Supreme
Court returned to the issue of uniform civil code in this case. The issue in this case was
that while the Hindu law had prohibited bigamy, and the Muslim personal law allowed
the same, could a Hindu husband circumvent this restriction of bigamy by announcing a
sham conversion to Islam?93The Court answering this question in negative, observed that:
“We, therefore, hold that the second marriage of a Hindu husband after his conversion to
Islam (without getting his first marriage dissolved) is a void marriage in terms of section
494 IPC”.
The ratio of the case was an appraised part as it stressed on the blatant abuse of the
Islamic law on bigamy, more often by non-Muslim than by Muslim.94But the criticized
part of the judgment is that where the court ascribed the problem before it to the plurality
of personal laws in the country and stressed the need for a uniform civil code as the
remedy. Justice Kuldeep Singh, while authoring the judgment observed: “Article 44 is
based on the concept that there is no necessary connection between religion and personal
law in a civilized society. Article 25 guarantees religious freedom whereas Article 44

91
Id.
92
Smt. SarlaMudgal, President, Kalyani&Ors.v Union of India &Ors. AIR 1995 SC 1531.
93
Prabodh Kumar Garg, supra note 88.
94
Id.

101
seeks to divest religion from social relations and personal law. Marriage, succession and
the like matter of secular character cannot be bought within the guarantee enshrined
under Articles 25, 26 and 27.”95

4. Ahmedabad Women Action Group Case96

In the instant case three writ petitions were filed before the Apex Court as public interest
litigation. In the first Writ Petition,97 it was prayed to declare Muslim Personal Law
which allows polygamy as void as offending Articles 14 and 15 of the Constitution.In the
second Writ Petition,98 it was inter alia prayed to declare Section 2(2), 5(ii) and (iii), 6
and Explanation of Section 30 of the Hindu Succession Act, 1956 as void offending
Articles 14 and 15 read with Article 13 of the Constitution of India.In the third
petition,99the relief prayed was to declare Section 10 and 34 of the Indian Divorce Act
andsections 43 and 46 of the Indian Succession Act as void.
The court, in this case, realizing the complexities involved in the issues raised before it
and also knowing fully its powers and limitations- refused to oblige the petitioners by
observing, at the outset, that: “These writ petitions don’t deserve disposal on merits in as
much as the arguments advanced before us wholly involve issues of State policies with
which the court will not ordinarily have any concern.”100

The foregoing study reveals that Courts have rather deciding the question of law in the
afore-mentioned cases have transgressed their authorized limits. The view taken by them
in majority of cases as to the issue of uniform civil code cannot be said to be right as they
see the constitutional mandate completely divorced from the social history of the country.
Moreover, they have failed to identify the distinctiveness of Indian secularism as well as
the true motives of the constitution-makers.

95
Id.
96
Ahmedabad Women Action Group v Union of India, (1997) 3 SCC 573.
97
No. 494 of 1996.
98
No. 496 of 1996.
99
No. 721 of 1996.
100
Ahmedabad Women Action Group, Supranote 96.

102
 CHAPTER 6

CONCLUSION AND SUGGESSTIONS

As this academic venture is towards finality, I now return to examine the validity of the
hypotheses formulated at the beginning of this work. The first assertion I make, on the
basis of the second chapter, is that the group rights are important and not anti-thesis to the
basic human rights of individuals. Being opposed to the general conception which argues
that group rights are in opposition to individual rights as they tend to overpower the
latter,I have illustrated that they will help in expanding the scope of these rights by
making their application wider. A counter-argument can be made against this conclusion
which is, that making the groups overly powerful would lead to injustice towards
individuals and would amount to returning back to history when groups were the basis of
society and individuals were bound by their decision and mandate. However, such
arguments entail little seriousness now as the individuals possess the ‘right to exit’ from
the group they belong to. Moreover, it must be stated that this inference is not suggestive
of the fact that conceptualization and consideration ofindividuals as sole repository of
human rights is flawed, but it is to argue that denying group rights as being a threat to the
individual human rights seems unjust, illiberal and skeptical. Next, on the basis of
discussion done in the third chapter, I have elucidated that the right to religious freedom
is primarily an individual right.Since, there can be no religion constituted by an
individual; hence, the recognition of the same as a group right is equally important. I
have further shown that the right to religious freedom is intricately inter-twined with the
controversial issue of religious/culturalidentity which holdsconsiderable importance for
some socio-religious groups; hence it’s recognition as a group right would help in
resolving the identity controversy. Thus, the first hypothesis formulated to guide this
research stands justified in the light of the discussion done in the second and third
chapter.

Moving forth in my discussion inthe fourth chapter, I have discussed that the personal
laws of different religions prevalent in India were, by and large, practiced freely. The
change in the ruling class did not meddle with the personal laws as their origin lay in the

103
holy texts and practices of different religions. This inference can be drawn from the fact
that the Britishers while their rule in the India introduced vast legal reforms; they largely
refrained from engaging with personal laws. The little reforms which they did were either
backed by popular support aiming towards social reformation or they were solely done
for administrative purposes. Hence, by the discussion done in the fourth chapter, it can be
concluded that the policy of non-interference and legal pluralism with respect to personal
laws has been practiced in India from old-age. This issue of legal pluralism and non-
interference with personal laws coupled with the issue of religious identity became overly
complex during last phase of freedom struggle in India. The tension grew more during
the CAD with the discussion over the issue of Uniform Civil Code.

This brings me to the second hypothesis formulated for the guidance of this research
which is that, is a Uniform Civil Code desirable for India? The discussion in the fifth
chapter is relevant for the purpose of testing the validity of this assertion. The discussion
has sought to identify that the choice of a Uniform Civil Code is undesirablein the
country as it does not lay emphasis on the issue of ‘identity’and the importance given to
the same by Indians. Moreover, in the same chapter, I have shown by analyzing the
personal laws of Hindus and Muslims that the realm of personal laws in India has been
and is converging. The lesson to be learned from this is that religious personal laws may
well endure and survive the much-desired uniformity of legal reforms. India has quite
brilliantly, consciously and cautiously over the decades engineered a fascinating
reflection of the original western ideal of the Uniform Civil Code, in the form of a unified
and harmonized system of legal rules that maintains the input of personal laws and yet
achieves a measure of legal uniformity. The approach adopted by Indian legislature has
been commendable in this respect. They have on the one hand, maintained the cultural
diversities and the resulting pluralism of personal laws, leaving various strategic spaces
for diversity when it matters. While on the other, they have kept a strict control over other
spaces through social welfare laws.

While such crucial issues of social welfare have occupiedthe center-stage, the call for the
implementation of a Uniform Civil Code seems less prominent and urgent. In fact, this
agenda has become far less legally convincing, because the continuing convergence of

104
various personal law systems demonstrates that it can handle the pulls and pressures of
potential inequality through the intricate process of gradual harmonization of all Indian
personal laws and through supervision of criminal and constitutional laws. It not only
serves the latter purpose but also keeps the stature of ‘unity in diversity’ of Indian state as
true and justified. Thus in my view, contemporary Indiahas achieved, if not the true
western model of Uniform Civil Code then surely its equivalent model, which is
contextual. Hence, in accordance with the researched and analyzed contemporary laws
and policies, and in the light of socio-legal history with respect to personal laws in the
country, I conclude that the implementation of an explicit Uniform Civil Code would
amount to disturbance in the fine balance maintained between the personal and state laws
attained after years of legal engineering. Moreover, it might as experienced in the past
lead to communal disharmony. What seems more important is to make the existing
personal laws work better for as many Indians as possible in socio-legal reality, within
the protective framework of the Indian Constitution. I say so, because the future lies not
in legal uniformity, but in considered, carefully weighed respect for diversity.

Moreover, even if a Uniform Civil Code, it should be implemented only when there is a
popular support for it from within the society which is comprised of both, majority and
minority groups. Going on the same lines, Shetreet proposes a blueprint for the
implementation of a Uniform Civil Code. She suggests four guidelines which will make
the application of such a code as easily acceptable as possible for all the citizens and
communities of India. According to the first guideline, the process of preparing and
implementing a uniform civil code should solely be the function of the legislature. The
courts can though resolve certain specific points related to the issue.1 The second
guideline suggests a parallel application of civil and religious law. This seems a
commendable suggestion as securing a uniform civil code must not negate the possibility
of citizens availing themselves of religious law, if they so wish.2The third guideline calls
for a gradual application of the uniform civil code. This process should allow time for the

1
Shimon Shetreet, Academic Blueprint for the Implementation of a Uniform Civil Code for India, UTAH
REV 97 (2011).
2
Id, at 98.

105
citizens of India to grow accustomed to the existence of a civil code. 3 A drastic change in
the civil life of the people of India cannot be made overnight; it must be implemented
over time. The application should be done topic by topic and chapter by chapter.4 The
fourth suggestion is for mediation which is to be inter-community and personal. Inter-
community mediation would involve a dialogue between different religious communities
of the country in order to advance an agreement upon the substantive provisions of the
uniform civil code. Individual mediation involves mediating between individuals on
occasions where dispute arises in the realm of personal law.5 These guidelines seem apt
for implementation of a Uniform Civil Code, if the same is pursued in the future of the
country.

3
M.P. Singh, On Uniform Civil Code, Legal Pluralism and the Constitution of India, 5 J INDIAN SOC V
(2014).
4
Shetreet, supra note 1.
5
Id, at 98.

106
 BIBLIOGRAPHY

PRIMARY SOURCES

THE CONSTITUTION OF INDIA, 1950.

STATUTES

THE CODE OF CRIMINAL PROCEDURE, 1898.

THE CODE OF CRIMINAL PROCEDURE, 1973.
THE DISSOLUTION OF MUSLIM MARRIAGE ACT, 1939.
THE HINDU ADOPTION & MAINTENANCE ACT, 1956.
THE HINDU MARRIAGE ACT, 1955.
THE HINDU SUCCESSION (AMENDMENT) ACT, 2005.
THE HINDU SUCCESSION ACT, 1956.
THE MUSLIM WOMEN (PROTECTION OF RIGHTS ON DIVORCE) ACT, 1986.
THE PERSONAL LAWS (AMENDMENT) ACT, 2010.
THE PROHIBITION OF CHILD MARRIAGE ACT, 2006.

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CONSTITUENT ASSEMBLY DEBATES, VOL. I

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CONSTITUENT ASSEMBLY DEBATES, VOL. VII

REPORTS

LAW COMMISSION OF INDIA, REPORT NO. 212, OCTOBER 2008.

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NEWSPAPER ARTICLES

A FaizurRahman, Uniform civil code: will it work in India?THE HINDU, November

23, 2014.

Faizan Mustafa, Why Legal Pluralism Matters, THE INDIAN EXPRESS, November 16,
2015.

Syed Mohammad, Uniform Civil Code and Muslims, THE TIMES OF INDIA,
HYDERABAD, Feb 11, 2016.

Zeeshan Shaikh, Women and the Right to Worship: The “controlled” Access at Haji
Ali Dargah, THE INDIAN EXPRESS, Feb. 11, 2016.

MAGAZINES

SanjanaAgnihotri, SC declines to direct Parliament to form Uniform Civil Code,

INDIA TODAY, New Delhi, December 7, 2015.

Tariq Ansari, Why I Support the Uniform Civil Code, OUTLOOK, July 29, 2003.

WEBSITES

http://www.thequint.com/opinion/2015/10/14/a-uniform-common-civil-for-a-more-
equal-society

http://lawmin.nic.in/

https://en.wikipedia.org/wiki/Uniform_civil_code

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http://www.business-standard.com/article/current-affairs/uniform-civil-code-needed-
for-gender-justice-116010400030_1.html

http://thelogicalindian.com/story-feed/exclusive/everything-you-need-to-know-about-
uniform-civil-code/

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