Author: Mansewak Singh

Abstract:

The Indian Constitution embodies a delicate balance between religious freedom and state-led reform. The Right to Religion, enshrined under Articles 25–28, ensures individuals’ freedom to practice and propagate their faith, while the vision of a Uniform Civil Code (UCC), articulated under Article 44, aims to harmonize personal laws across religions with the principles of equality and justice. This duality has given rise to one of the most contested debates in Indian constitutional law. This research paper provides an in-depth examination of the constitutional framework, judicial interpretations, academic perspectives, comparative analysis with other jurisdictions, and practical challenges in reconciling religious rights with a common civil code. By analyzing case law, research literature, and policy developments, the paper argues that while UCC is essential to achieving gender justice and secularism, its implementation requires a nuanced, gradual, and inclusive approach.

Keywords:

Right to Religion, Uniform Civil Code, Fundamental Rights, Directive Principles of State Policy, Gender Justice, Pluralism, Secularism, Constitutional Law

Introduction:

The Indian Constitution reflects the values of secularism, pluralism, equality, and justice. One of the central debates that continues to shape Indian legal and political discourse is the conflict between the Right to Religion and the Uniform Civil Code (UCC). While religion forms an integral part of Indian society and personal laws have traditionally governed issues like marriage, divorce, succession, and adoption, the Constitution also aspires towards a common civil framework. This contradiction is embedded in the text itself: while Articles 25–28 guarantee freedom of religion as enforceable Fundamental Rights, Article 44, found in Part IV under Directive Principles of State Policy (DPSP), asks the state to endeavor to implement a Uniform Civil Code. The debate is not merely legal but also socio-political and cultural, involving the concerns of minority communities, gender justice, and the integrity of India as a secular republic.

Constitutional Framework:

The constitutional framework dealing with religion and civil code is divided between enforceable rights and aspirational goals. Articles 25 to 28 guarantee freedom of religion in India. Article 25(1) specifically states that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion. However, this right is subject to public order, morality, health, and other provisions of Part III of the Constitution. Importantly, Article 25(2) provides that the state may regulate or restrict secular activities associated with religious practice and may enact social reform laws, even if they interfere with religious customs. On the other hand, Article 44 under the Directive Principles directs the state to secure a UCC for citizens. Unlike Fundamental Rights, Directive Principles are not enforceable in a court of law, but they are fundamental to governance and policymaking. The presence of UCC in the DPSP section shows the framers’ intent to create a more uniform legal system in the long term, without directly challenging religious diversity at the time of independence.

Right to Religion vs. Social Reform:

The constitutional scheme makes it clear that religious freedom is not absolute. While individuals are free to practice their faith, practices that contradict constitutional morality, equality, or public order can be restricted. This is particularly significant in matters of personal law, which directly affect marriage, divorce, succession, inheritance, and guardianship. The state has often intervened to regulate practices considered unjust, discriminatory, or regressive. For example, untouchability, once practiced under religious sanction, was abolished by Article 17. Similarly, child marriage, sati, and dowry have been restricted by legislative reforms. The case of Shah Bano (1985) demonstrated this balance: while Islamic personal law provided limited maintenance to divorced women, the Court upheld her right to maintenance under Section 125 of the Criminal Procedure Code, a secular provision applicable to all citizens. This case exemplified how the state and judiciary prioritize constitutional values of equality and justice over religiously sanctioned practices.

Judicial Pronouncements:

Indian courts have repeatedly emphasized the importance of a UCC while respecting religious freedom. In Shah Bano v. Union of India (1985), the Supreme Court upheld the right of a divorced Muslim woman to claim maintenance under secular law, sparking political controversy and legislative pushback. In Sarla Mudgal v. Union of India (1995), the Court addressed the issue of Hindu men converting to Islam to practice polygamy and emphasized the need for UCC to prevent misuse of religion for personal advantage. In John Vallamattom v. Union of India (2003), the Court struck down Section 118 of the Indian Succession Act as discriminatory against Christians. In Shayara Bano v. Union of India (2017), the Court invalidated the practice of instant triple talaq as unconstitutional. These cases demonstrate that while courts respect religious freedom, they have consistently limited practices that violate gender justice, equality, or secular principles. Thus, the judiciary has acted as a catalyst for social reform, pushing the state towards realizing the vision of UCC.

Academic Perspectives and Research:

The academic debate on UCC is divided between concerns of gender justice and fears of cultural homogenization. Scholars like Flavia Agnes argue that reforms should emerge from within religious communities rather than being imposed from above, as externally imposed reforms may be seen as a majoritarian project. She emphasizes the importance of protecting minority rights while gradually aligning personal laws with constitutional principles. Tahir Mahmood, on the other hand, advocates strongly for UCC as a necessary measure for national integration and legal uniformity. Empirical studies suggest that piecemeal reforms—such as codification of Hindu law in the 1950s, the outlawing of triple talaq, and improvements in succession rights for women—have been more successful than attempts at wholesale codification. Research also points to the Goa Civil Code as an experiment that demonstrates that UCC can coexist with religious pluralism if implemented inclusively and carefully.

Issues and Challenges:

Several challenges make the implementation of UCC a politically and socially sensitive issue:

1. Minority Apprehensions: Many minority communities fear that UCC would erode their cultural and religious identity, viewing it as an attempt at homogenization.
2. Gender Justice vs. Religious Autonomy: While UCC promises gender equality, religious groups argue that reforms should respect traditions and avoid infringing upon religious autonomy.
3. Federal Structure: Family law is part of the Concurrent List, meaning both the Centre and States can legislate. This complicates implementation, as states may resist central imposition.
4. Political Sensitivities: Successive governments have avoided aggressively pursuing UCC due to its potential to polarize communities. Political rhetoric around UCC is often communalized, further complicating rational debate.
5. Practical Difficulties: Drafting a code that harmonizes different personal laws while preserving cultural diversity is inherently complex. Ensuring uniformity without disregarding diversity is a delicate task.

Comparative Perspective:

Globally, countries with diverse populations have taken varied approaches to personal laws. Turkey adopted a secular civil code modeled on the Swiss system in 1926, abolishing separate religious laws. Tunisia introduced progressive family laws to ensure women’s rights, while Indonesia continues to recognize different personal laws for Muslims, Christians, and Hindus. India represents a hybrid model: personal laws are recognized but subject to constitutional scrutiny. The Goa Civil Code, inherited from Portuguese rule, is often showcased as a successful model of UCC in India. In Goa, all communities are governed by the same laws relating to marriage, divorce, and succession. However, critics argue that even the Goa Civil Code retains some exceptions for specific communities, suggesting that complete uniformity may not be achievable in practice.

Harmonizing the Two:

The path forward lies in harmonizing religious freedom with constitutional values. This can be achieved by adopting a gradualist approach: instead of imposing a uniform law abruptly, the state can introduce incremental reforms in personal laws to ensure they align with constitutional principles of equality and gender justice. For example, reforms banning discriminatory practices like triple talaq or ensuring equal succession rights for women can pave the way for broader acceptance of UCC. Public consultation and dialogue with religious communities are crucial for ensuring that reforms are inclusive and not perceived as coercive. Legal education, awareness campaigns, and judicial activism can also play a role in bridging the gap between religious freedom and the need for uniform civil laws. Ultimately, UCC must be framed not as a tool of cultural assimilation but as a measure to promote justice, secularism, and national unity.

Conclusion:

The conflict between the Right to Religion and the Uniform Civil Code epitomizes the constitutional challenge of balancing pluralism with equality. While religious freedom under Article 25 is a cherished Fundamental Right, it cannot justify practices that undermine equality, dignity, and justice. The judiciary has consistently steered personal laws toward conformity with constitutional values, highlighting the need for eventual codification of a UCC. However, the fears of minority communities must be addressed through dialogue, inclusivity, and sensitivity to cultural diversity. A phased and consensual approach to UCC—supported by awareness campaigns, legal reforms, and judicial guidance—offers the most viable path forward. By harmonizing religion with constitutional morality, India can achieve both the preservation of its rich pluralism and the realization of gender justice and secularism.

References:

1. Shah Bano v. Union of India, AIR 1985 SC 945
2. Sarla Mudgal v. Union of India, AIR 1995 SC 1531
3. John Vallamattom v. Union of India, (2003) 6 SCC 611
4. Shayara Bano v. Union of India, (2017) 9 SCC 1
5. Agnes, Flavia. ‘Constitutional and Legal Debates on the UCC.’ Economic and Political Weekly, 1995
6. Mahmood, Tahir. ‘Uniform Civil Code: Fictions and Facts.’ Indian Journal of Legal Studies, 2001
7. Derrett, J.D.M. ‘Religion, Law and the State in India.’ Faber & Faber, 1968
8. Austin, Granville. ‘The Indian Constitution: Cornerstone of a Nation.’ Oxford University Press, 1966
9. Basu, Durga Das. ‘Introduction to the Constitution of India.’ Lexis Nexis, 2018
10. Galanter, Marc. ‘Law and Society in Modern India.’ Oxford University Press, 1992