Ahmed Dissertation Final

DR.
BABASAHEB AMBEDKAR MARATHWADA

UNIVERSITY, AURANGABAD
DEPARTMENT OF POST GRADUATE STUDIES IN LAW
Uniform Civil Code Vis-à-vis Secularism and Gender

Justice in India: A Constitutional Discourse
SUBMITTED BY
Adv. SIDDIQUI AHMED MUSHFIQ
(CONSTITUTION AND LEGAL ORDER)
UNDER THE GUIDANCE OF

PROF. DR. (MS.) SADHANA P. PANDE
B.S.L., LL.M., M.A. (Eng.), Ph.D. (Karnataka, India)
Professor and Head
Department of P.G. Studies in Law
Dr. Babasaheb Ambedkar Marathwada University
Aurangabad, Maharashtra, India
A DISSERTATION SUBMITTED TO DR. BABASAHEB

AMBEDKAR MARATHWADA UNIVERSITY, AURANGABAD, IN
PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE
DEGRE OF MASTER OF LAWS.
2022-2023
DR. BABASAHEB AMBEDKAR MARATHWADA
UNIVERSITY, AURANGABAD
DEPARTMENT OF POST GRADUATE STUDIES IN LAW
CERTIFICATE
This is to certify that Mr. Siddiqui Ahmed Mushfiq has worked on the
Dissertation titled “Uniform Civil Code Vis-à-vis Secularism and
Gender Justice in India: A Constitutional Discourse” under my
guidance and supervision.
This Dissertation has not been submitted to any other University for the
conferment of any Degree or Diploma
GUIDE
PROF. DR. (MS.) SADHANA P. PANDE
B.S.L., LL.M., M.A. (Eng.), Ph.D. (Karnataka, India)
Professor and Head
Department of P.G. Studies in Law
Dr. Babasaheb Ambedkar Marathwada University
Aurangabad, Maharashtra, India
Acknowledgements
ACKNOWLEDGEMENTS
I am deeply indebted to Dr. Sadhana P. Pande, Professor and Head of Department of PG

Studies in Law, Dr. Babasaheb Ambedkar Marathwada University, who invested her
precious time to supervise and guide this work. It is only because of her valuable guidance
that I could look at this subject from a different perspective. Her constant support, expertise
knowledge and encouragement have been the guiding force behind the successful
accomplishment of this dissertation.
I am obliged to all the teaching staff, teaching associates, non-teaching staff and student
friends of Department of PG Studies in Law, Dr. Babasaheb Ambedkar Marathwada
University for their kind support and help whenever required.
I am thankful to Adv. Mohammed Badiuzzama Khan (Retd. District Judge) for his
cooperation and all the study material provided by his office.
I am thankful to Adv. Himanshu Anil Patankar and Adv. Shafiuzzama Badiuzzama Khan for
their assistance throughout the research.
I am also thankful to all the staff of Department of PG Studies and Library for their
assistance throughout the year, without such literature I would not have completed this work
in time.
Finally, I wish to offer my gratitude to my Mother, Dr. Fouzia Siddiqui and Father, (Late)
Mr. Mushfiq Hasan Siddiqui for their unconditional support, encouragement, help and
understanding as and when required.
Date: 06 MAY 2023

Place: Aurangabad
Name of the Research Candidate: Adv. Siddiqui Ahmed Mushfiq
i
Declaration
DECLARATION
I hereby declare that the work contained in the Dissertation entitled Uniform
Civil Code Vis-à-vis Secularism and Gender Justice in India: A
Constitutional Discourse, is an original research work carried out by me
under the supervision of my Supervisor Prof. Dr. (Ms.) Sadhana P. Pande,
Head Department of P.G. Studies in Law, Dr. Babasaheb Ambedkar
Marathwada University, Aurangabad, and has not previously been submitted to
any other University for the award of any degree, diploma, or other similar
qualifications.
Date: 06 MAY 2023
Sign
Place: Aurangabad Adv. Siddiqui Ahmed Mushfiq
ii
Contents
CONTENTS
CERTIFICATE ........................................................................................................................... i
ACKNOWLEDGEMENTS ........................................................................................................ i
DECLARATION ....................................................................................................................... ii
CONTENTS..............................................................................................................................iii
LIST OF CASES ....................................................................................................................... v
LIST OF ABBREVIATIONS ................................................................................................... ix
1. INTRODUCTION .............................................................................................................. 1
1.1 Statement of Research Problem ................................................................................. 1
1.2 Importance of the Research ....................................................................................... 2
1.3 Aims and Objectives of the Present Research ........................................................... 4
1.4 Research Questions .................................................................................................... 4
1.5 Hypothesis ................................................................................................................. 4
1.6 Research Methodology Adopted for Collecting the Data .......................................... 5
1.7 Scope of Research ...................................................................................................... 5
1.8 Scheme of Dissertation .............................................................................................. 6
2. CONCEPT OF SECULARISM IN SOME SELECT COUNTRIES WITH SPECIAL

EMPHASIS ON INDIA: AN ANALYSIS ......................................................................... 7
2.1 Secularism: Meaning and Concept ........................................................................ 7
2.2 Concept of secularism: The European and the American Perspective ................ 11
2.3 Concept of Secularism: The Indian Perspective .................................................. 16
2.4 Secularism under Indian Laws: A Discourse ...................................................... 18
3. GENDER JUSTICE IN INDIA: A CRITICAL STUDY ................................................. 21
3.1 ‘Gender’ and ‘Justice’: Meaning and Concept ........................................................ 21
3.2 Gender Discrimination versus Gender Justice in India ........................................... 25
iii
Contents
3.3 Gender Justice and Laws in India: A Retrospect ..................................................... 31
3.4 Gender Justice and the Indian Judiciary .................................................................. 33
4. UNIFORM CIVIL CODE IN FURTHERANCE OF SECULARISM AND GENDER

JUSTICE: A CRITIQUE .................................................................................................. 43
4.1 UCC: Meaning and Concept .................................................................................... 43
4.2 Historical background of UCC ................................................................................ 44
4.3 Indian Constitution and UCC .................................................................................. 46
4.4 UCC and Secularism in India .................................................................................. 49
4.5 UCC and Gender Justice in India ............................................................................ 50
4.6 Uniform Civil Code in furtherance of Secularism and Gender Justice vis-à-vis
Indian Judiciary.............................................................................................................. 51
5. PUBLIC PERCEPTION ON UCC FOR SECURING SECULARISM AND GENDER

JUSTICE IN INDIA ......................................................................................................... 61
5.1. Data Collected ..................................................................................................... 63
5.2. Observation and its Interpretation ....................................................................... 66
5.3. Interface between Law and Reality ..................................................................... 79
5.4. Lacunas / Deltas .................................................................................................. 81
6. CONCLUSION AND RECOMMENDATIONS ............................................................. 83
6.1. Conclusion ........................................................................................................... 83
6.2. Inference of this research work ........................................................................... 85
6.3. Scope for further research ................................................................................... 87
7. BIBLIOGRAPHY............................................................................................................. 88
7.1 Books, Journals and Articles referred ...................................................................... 88
7.2 Websites Referred .................................................................................................... 89
7.3 Statutes Referred ...................................................................................................... 90
7.4 Cases Referred ......................................................................................................... 91
iv
List of Cases
LIST OF CASES
Ahmadabad Women’s Action Group (AWAG) v.

(1997) AIR SC 3614
Union of India
Air India v. Nargesh Mirza (1982) SCR (1) 438
Ammini E.J. v. Union of India (1995) AIR KER 252
Annie Nagraja and Ors v. Union of India (2015) SCC Online 11804
Anuj Garg v. Hotel Association of India (2008) SCC (3) 1
Apparel Export Promotion Council v. A. K. Chopra (1999) AIR SC 625
Associate Banks Officer’s Association v. State Bank

(1998) AIR SC 32
of India
Bodhisathwa Gautam v. Subhra Chakraborty (1996) SCC (1) 490
C .M. Mudaliar vs. Idol of Sri S. Swaminanthaswami

(1996) SCC (8) 525
Thirukoil
C. B. Muthamma v. Union Of India & Ors (1980) SCR (1) 668
Chairman, Railway Board v. Chandrima Das (2000) SCC (2) 465
Charu Khurana and Others v. Union of India (2015) SCC (1) 192
v
List of Cases
Delhi Domestic Working Women’s Forum v. Union of

(1995) SCC (1) 14
India
Delhi Domestic Working Women's Forum v. Union of
(1995) SCC (1) 14
India
Dr. Noorjehan Safia Niaz v. Haji Ali Dargah Trust (2016) 5 AIR Bom R 660.
Gaurav Jain v. Union of India (1997) SCC (8) 114
Gita Hariharan v. Reserve Bank of India (1999) SCC (2) 228
Govt. of A.P. v. P. B. Vijayakumar (1995) AIR SC 1648
Hindu Religious Endowments v. Sri Lakshmindra

(1954) AIR 282
Thirtha Swamiar
Independent Thought v. Union of India (2017) SCC (10) 800
Indian Young Lawyers Association v. The State of

SC, 28/09/2018
Kerala
(2019) SCC (11) 1.
Kerala
Joseph Shine v. Union of India (2019) SCC (3) 39.
Lillu @ Rajesh and Anr v. State of Haryana (2013) SCC (14) 643
Lily Thomas etc. v. Union of India and others (2000) AIR SC 1650
vi
List of Cases
Madhu Kishwar v. State of Bihar (1996) SCC (5) 125
Mary Roy v. State of Kerala (1986) AIR KER 1011
Ministry of Defence v. Babita Puniya & Ors SC, CA 9367-9369/2011
Mohd Ahmed Khan vs. Shah Bano Begum (1985) AIR SC 945
Naveen Kohli v. Neelu Kohli (2006) SCC (4) 558
Neera Mathur v. L.I.C (1992) SCC (1) 286
Prabhakar v. Shanti Bai (2008) HLR 250 (Nagpur)
Pragati Verghese v. Cyrill George Verghese (1997) AIR BOM 349
Pratap Mishra v. State of Orrisa (1977) AIR SC 1307
Pratibha Ranu v. Suraj Kumar (1985) SCR (3) 191
Rajesh Kumar Gupta v. State of Uttar Pradesh (2005) SCC (5) 172
Raju v. State of Karnataka (1994) AIR SC 222
Ramesh Jangid v. Sunita (2008) HLR (1) 8 (Raj.)
Ratilal Panchand v. State of Bombay (1954) AIR SC 388
Revathi v. Union of India (1988) AIR SC 835
vii
List of Cases
S.R. Bommai v. Union of India (1994) AIR SC 1918
Sarla Mudgal v. Union of India (1995) SCC (3) 635
Shafin Jahan v. Asokan K.M. (2018) SCC (16) 368.
Shayara Bano v. Union of India (2017) SCC (9) 1
Soumithri Vishnu v. Union of India (1985) SCC SUPP 137
State of Maharashtra v. Madhukar Narayan

(1991) SCC (1) 57
Mardikar
State of Punjab v. Gurmit Singh (1996) AIR SC 1393
Swapana Ghosh v. Sadananda Ghosh (1989) AIR CAL 1
Tukaram and Anr v. State of Maharashtra (1979) SCC (2) 143
Union of India v. K .P. Prabhakaran (1997) SCC (11) 638
Vishaka and others v. State of Rajasthan (1997) SCC (6) 241
Venkataramana Devaru v. State of Mysore (1958) AIR 255
Wallace v. Jaffree (1985) 472 U.S. 38
viii
List of Abbreviations
LIST OF ABBREVIATIONS
A.C. Appeal Cases
A.I.R. All India Reporter
A.J.C.L. Allahabad Journal of Company Law
A.L.J. Allahabad Law Journal
A.L.J.J.S. Allahabad Laws Journals, Journal Section
A.P. Andhra Pradesh (A.I.R.)
All. Allahabad
B.H.C. Bombay High Courts Reports
Beng. L.R. Bengal Law Reporter
Bom. L.R.J. Bombay Law Reporter Journal
BOM Bombay
Bom. Bombay (A.I.R.)
Bomb. L.R. Bombay Law Reporter
C.L.Q. Comparative Law Quarterly
Cal. W.N. Calcutta Weekly Notes
CAL Calcutta
Ch., Chap. Chapter
Civ. L.J. Criminal Law Journal
Cr.P.C. Criminal Procedure Code
D.B. Division Bench
D.M.C. Divorce and Matrimonial Cases
e.g. Exampli Gratia
ed. Edition
F.B. Full Bench
GUJ Gujarat
H.C. High Court
H.L.R. High Court Reports
H.P. Himanchal Pradesh
ix
I.A. Indian Appeals

i.e. That is
I.L.R. Indian Law Reports
Ibid. Ibidem
Id. Idem
J. Journal
J.I.L.I. Journal of Indian Law Institute
J.T. Judgment Today
Kant. Karnataka
Ker. L.T. Kerala Law Times
KER Kerala
Ltd. Limited
M.L.J. Madras Law Weekly
M.P. Madhya Pradesh
Mad. Madras
Mat. L.R. Matrimonial Law Reports
N.O.C. Note on Cases
Nag. Nagpur
op. cit Opere Citato
Ori. Orissa
P.& H. Punjab Law Reports
P.C. Privy Council
p.pp. Page, pages
Pat. Patna
Punj. Punjab
Pvt. Private
RAJ Rajasthan
S.C. Supreme Court Cases
S.C.J. Supreme Court Journals
x
Sec. Section
U.C.C. Uniform Civil Code
U.P. Uttar Pradesh
U.S. United States
Viz. Videlicet
Vol. Volume
v. Versus
W.L.R. Weekly Law Reports
xi
Chapter 1 - Introduction
1. INTRODUCTION
1.1 Statement of Research Problem
The Uniform Civil Code (UCC) is a contentious issue in India, and it is often debated in
the context of secularism and gender justice. The UCC seeks to replace personal laws
based on religious practices and customs with a common set of civil laws for all citizens
irrespective of their religion. This code would provide a uniform set of rules for
marriage, divorce, inheritance, and adoption, among other issues.
The idea of a UCC has been in the Indian Constitution since its inception, and Article
44 of the Directive Principles of State Policy states that the state shall endeavor to
secure a uniform civil code for all citizens, but it has not been implemented yet. The
reason behind the non-implementation of the UCC is the fear of backlash from religious
groups who see it as an infringement on their religious freedom.
Secularism is a core principle of the Indian Constitution, which mandates the state to
maintain an equal distance from all religions and treat all citizens equally regardless of
their religion. A UCC can be seen as a step towards realizing this constitutional vision.
It will ensure that all citizens, irrespective of their religious beliefs, are treated equally
under the law.
Gender justice is another significant issue concerning the UCC. Personal laws based on
religious practices and customs discriminate against women and perpetuate gender
inequality. For example, Muslim women face discrimination in matters of divorce and
inheritance. The UCC will ensure gender justice by providing a uniform set of laws that
will treat men and women equally.
However, the implementation of the UCC is not a straightforward process. It requires a

consensus among all stakeholders, including religious communities and political
parties. The challenge is to strike a balance between religious beliefs and constitutional
values. The UCC should not be seen as a threat to religious freedom but as an
instrument of equality and justice.
1
Conversely, the implementation of a Uniform Civil Code could also be met with
resistance, particularly from those who believe that personal laws are an integral part of
their religious identity. Thus, the researcher suggests that the implementation of a
Uniform Civil Code in a secular state could promote gender justice, but it also
acknowledges that there may be challenges and opposition to its implementation.
In conclusion, the UCC is a vital issue concerning secularism and gender justice in
India. It has been a long-standing constitutional discourse, and its implementation will
ensure that all citizens, irrespective of their religion and gender, are treated equally
under the law. The challenge is to overcome the political and religious obstacles and
build a consensus that upholds constitutional values while respecting religious beliefs.
1.2 Importance of the Research

The concept of gender justice refers to the right to equality and all other human rights
which apply to both men and women equally. Gender inequality refers to a specific
gender regarded as a minority group attributed to such gender and is passed to
successive generations through customs and practices. It is noteworthy that the position
of a woman in India has changed from time to time.
There has been an avalanche of landmark decisions on gender equality involving

matters of religion by Indian courts in recent times. These decisions reveal the central
role that gender and gender equality play in shaping the content and contours of faith in
law. Allowing women access to temples1 and dargahs (Sufi shrines)2, decriminalizing
adultery3, recognizing that sex with child brides is rape4, upholding interreligious
marriage5, and finding that divorce via triple talāq is unconstitutional6 are among the
historic decisions affecting women’s rights that are cascading off the judicial benches.
These decisions are providing feminists and progressives alike with a sense of
achievement and forward progression.
1
Indian Young Lawyers Association v.The State of Kerala, (2019) 11 SCC 1.
2
Dr. NoorjehanSafiaNiaz v. Haji Ali Dargah Trust, (2016) 5 AIR Bom R 660.
3
Joseph Shine v. Union of India, (2019) 3 SCC 39.
4
Independent Thought v. Union of India, (2017) 10 SCC 800
5
Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368.
6
Shayara Bano v. Union of India, (2017) 9 SCC 1.
2
They offer a sense that recognition of women’s rights is reflecting a more enlightened
time, an emergence from the dark shadow of a colonial past characterized by oppressive
male dominance. There is cause for celebration and for good reason. Nevertheless, a
close reading of some of these decisions reveals how gender equality does not emerge
as an unequivocally progressive ideal. Instead, the decisions suggest that gender
equality is being shaped against a normative ideal of gender and Hindu majoritarianism
that limits the progressive impact of these decisions.
The implementation of a uniform civil code and the issue of gender justice, these two
are closely connected to each other in Indian socio legal perspective. Notwithstanding
its need and importance, the state’s politico-legal standpoint about its implementation
attracts in-depth legal inquiry. On the other dimension, the basic issue of ensuring
justice and equality to women is getting trapped in many other contemporary issues like
religion, secularism, and freedom.
However, one cannot flounce the main issue under the disguise and harp on other
relatively connected issues day in and day out. Gender issues, in this regard need to be
addressed very seriously. This dissertation is an attempt to co-relate the question of
gender justice and secularism/equality to the issue of the adoption of uniform civil code
throughout the territory of India.
In India, the issue of uniform civil code is oft debated in the context of prevailing
religious pluralism and secularism, but is there a logical correlation amongst these
three. Secularism, in the sense of respect for all religions, is a logical corollary of
religious pluralism. It is a socio-political approach to religious pluralism. Now the
question is whether the need for uniform civil code is also not socio-political and why it
should not be shorn of all religious considerations. Based on the distinction between the
sacred and the temporal can we not confine it to temporal sphere only and do not allow
religious consideration to overshadow it? Do national unity and social solidarity not
demand uniform civil code? Religion is a matter of personal belief but uniform civil
code is an interpersonal matter. Should the two not be separated? These and such other
concerns need to be discussed in the contemporary debate.
3
1.3 Aims and Objectives of the Present Research

1. To find out if implementation of a Uniform Civil Code be beneficial for India
by complementing Gender Justice and Secularism.
2. To know about the problems and challenges in implementation of Uniform
Civil Code.
3. To find the relationship between Universal Civil Code, Gender Justice and
Secularism.
4. To understand Indian model of Secularism and western model of Secularism.
1.4 Research Questions

 Will implementation of Uniform Civil Code improve the present condition of
Secularism and Gender Justice in India?
 Will this implementation be in a positive way or a negative way and if it affects
the nation in a negative way then will it violate any of the citizens’ rights?
1.5 Hypothesis
The implementation of a Uniform Civil Code in a secular state could promote gender
justice by providing equal rights and opportunities to all citizens regardless of their
religion, thus creating a more just and equitable society.
Explanation: Currently, in India, different personal laws govern various religious

communities, which can lead to discrimination against women. For example, under
Muslim personal law, a Muslim female is eligible to marry on attaining the age of
puberty, and a Muslim daughter’s share is half of a Muslim son’s share in a property
whereas such practices are not present under other personal laws. This unequal
treatment of women can lead to significant harm, including economic, social, and
psychological effects.
By implementing a Uniform Civil Code that applies to all citizens regardless of their
religion, it could promote gender justice by providing equal rights and opportunities for
all, and eliminating discriminatory practices present in certain personal laws.
Furthermore, by doing so in a secular state, the state would demonstrate its commitment
to treating all religions equally and without discrimination.
4
However, the implementation of a Uniform Civil Code could also be met with
resistance, particularly from those who believe that personal laws are an integral part of
their religious identity. Thus, the hypothesis suggests that the implementation of a
Uniform Civil Code in a secular state could promote gender justice, but it also
acknowledges that there may be challenges and opposition to its implementation.
1.6 Research Methodology Adopted for Collecting the Data

The research methodology used for the research is Analytical Doctrinal Research and
recent trends by taking help of cases, books, Surveys and Non-Doctrinal Research with
the help of different tools. The Models which will be used in this Research are
Explanatory, Practical, Exploratory and Evaluation.
Explanatory: It is conducted in order to help us find the problem that was not studied
in depth before
Practical: It is conducted to solve immediate problems and answer practical Questions
Exploratory: It is conducted for a problem which was not well researched before,
demands priorities, generates operational definitions and provides a better-researched
model. It focuses on explaining the aspects of your study in a detailed manner.
Evaluation: It is used to determine the impact of a social intervention. A social
intervention is an action taken within a social context.
The Tools which will be used in this Research is Questionnaire.
Questionnaire: Close ended Questions are asked to collect the data
1.7 Scope of Research

This study will focus on, Uniform Civil Code, Gender Justice and Secularism. Relation
between UCC, Gender Justice and Secularism will then be identified in detail. How and
what the respective Laws with regard to them are in place will be studied. What are the
steps taken by the appropriate authorities for effective regulation and its outcome with
regards to the territory of India? How different is the Secularism and Gender Justice
from the other countries than what is being practiced in India?
By, the end of the study, changes are to be recommended for the effective use of the
resources of the government to help the citizen of India.
5
1.8 Scheme of Dissertation

This dissertation is divided in the below chapters to channelize the research in a more
prolific way which are as follows:
CHAPTER 1 – This is the introduction part of the research. Detailed information will is
provided on the research problem, importance of the research, aims and objectives if the
research, research question, hypothesis, research methodology adopted for the research,
scope of the research followed by the scheme of this dissertation.
CHAPTER 2 – This chapter will comment about the meaning and concept of
secularism, secularism and its understanding in European, Western and Indian scenario
and the role of Indian Judiciary and Laws in upholding the Secular sanctity of nation.
CHAPTER 3 – This chapter will study about Gender Justice, difference between sex
and gender, gender discrimination versus gender justice in India, retrospect on Laws
maintaining gender justice and the role of Indian judiciary in upholding gender justice.
CHAPTER 4 – This chapter will enlighten about the empirical role between Uniform
Civil Code, Secularism and Gender Justice, historical background of UCC, Indian
Constitutional cogency in formation of UCC and the role of Indian Judiciary in
endorsing UCC.
CHAPTER 5 – This chapter will portray the data collected and its representation in a
graphical format.
CHAPTER 6 – This chapter will give the conclusion and inference of this research
work.
6
Chapter 2- Concept of Secularism
2. CONCEPT OF SECULARISM IN SOME SELECT

COUNTRIES WITH SPECIAL EMPHASIS ON INDIA: AN
ANALYSIS
2.1 Secularism: Meaning and Concept

Secularism (noun): Indifference to or rejection or exclusion of religion and religious
considerations7.
Jelis Subhan8 mentions Secularism is the concept that government or other entities
should exist separately from religion and/or religious beliefs. In one sense, secularism
may assert the right to be free from religious rule and teachings, and freedom from the
government imposition of religion upon the people, within a state that is neutral on
matters of belief, and gives no state privileges or subsidies to religions. In another
sense, it refers to the view that human activities and decisions, especially political ones,
should be based on evidence and fact unbiased by religious influence. The purposes and
arguments in support of secularism vary widely.
In European laicism, it has been argued that secularism is a movement toward

modernization, and away from traditional religious values. This type of secularism, on a
social or philosophical level, has often occurred while maintaining an official state
church or other state support of religion. In the United States, some argue that state
secularism has served to a greater extent to protect religion from governmental
interference, while secularism on a social level is less prevalent.
The term “secularism” was first used by the British writer George Holyoake9 in 1851.
Although the term was new, the general notions of free thought on which it was based
had existed throughout history.
7
Merriam-Webster Online Dictionary, April 2023
8
Subhan, Jelis, Concept of Secularism (March 16, 2016) available at SSRN:
https://ssrn.com/abstract=3517967 last visited (April 14, 2023)
9
Holyoake, G.J. (1896). The Origin and Nature of Secularism, London: Watts and Co. p.51
7
In particular, early secular ideas involving the separation of philosophy and religion can
be traced back to Ibn Rushd10 (Averroes) and the Averroism School of philosophy.
Holyoake invented the term “secularism” to describe his views of promoting a social
order separate from religion, without actively dismissing or criticizing religious belief.
An agnostic himself, Holyoake argued that:
“Secularism is not an argument against Christianity; it is one independent of it.
It does not question the pretensions of Christianity; it advances others.
Secularism does not say there is no light or guidance elsewhere, but maintains
that there is light and guidance in secular truth, whose conditions and sanctions
exist independently, and act forever. Secular knowledge is manifestly that kind
of knowledge which is founded in this life, which relates to the conduct of this
life, conduces to the welfare of this life, and is capable of being tested by the
experience of this life.”
Barry Kosmin of the Institute for the Study of Secularism in Society and Culture breaks
modern secularism into two types: hard and soft secularism. According to Kosmin the
hard secularist considers religious propositions to be epistemologically illegitimate,
warranted by neither reason nor experience. However, in the view of soft secularism:
“The attainment of absolute truth was impossible and therefore scepticism and
tolerance should be the principle and overriding values in the discussion of
science and religion.”
In its most prominent form, secularism is critical of religious orthodoxy and asserts that
religion impedes human progress because of its focus on superstition and dogma rather
than on reason and the scientific method. Secularism draws its intellectual roots from
Greek and Roman philosophers such as Marcus Aurelius and Epicurus, medieval
Muslim polymaths such as Ibn Rushd, Enlightenment thinkers like Denis Diderot,
Voltaire, John Locke, James Madison, Thomas Jefferson, and Thomas Paine, and
modern freethinkers, agnostics and atheists such as Bertrand Russell and Robert
Ingersoll11.
10
Abdel Wahab El Messeri. Episode 21: Ibn Rushd, Everything you wanted to know about Islam but was
afraid to Ask, PhilosophiaIslamica
11
Secularism, Catholic Encyclopaedia. Newadvent.org
8
Due in part to the belief in the separation of church and state, secularists tend to prefer
that politicians make decisions for secular rather than religious reasons.
In this respect, policy decisions pertaining to topics like abortion, contraception,

embryonic stem cell research, same-sex marriage, and sex education are prominently
focused upon by American secularist organizations such as the Centre for Inquiry.
Most major religions accept the primacy of the rules of secular, democratic society but
may still seek to influence political decisions or achieve specific privileges or influence
through church-state agreements such as a concordat. Many Christians support a secular
state, and may acknowledge that the conception has support in Biblical teachings,
particularly Jesus' statement, “Then give to Caesar what is Caesar's, and to God what is
God's.” However, some Christian fundamentalists (notably in the United States) oppose
secularism, often claiming that there is a “radical secularism” ideology being adopted in
current days and see secularism as a threat to “Christian rights” and national security.
The most significant forces of religious fundamentalism in the contemporary world are
Fundamentalist Christianity and fundamentalist Islam. At the same time, one significant
stream of secularism has come from religious minorities who see governmental and
political secularism as integral to preserving equal rights12.
Some of the well-known states that are often considered “constitutionally secular” are
France, India, Mexico, South Korea, and Turkey although none of these nations have
identical forms of governance. Looking at the definition of religion by Ogburn,
“Religion is an attitude towards super human power, it may be submitted that religion
explains the relation of man with god and also elaborate rules of conduct.” Further Max
Muller defines, “Religion as a mental faculty or disposition which enables man to
apprehend the infinite.” Max Muller has attempted to define religion as a matter of
belief in supernatural forces.
Man believes that he is at the mercy of the supernatural forces and shows his
subordination to them by means of prayers, hymns, and other acts, man believes that his
disrespect and negligence towards religion would bring disaster so he engaged in
endless endeavour to adjust himself with the supernatural.
12
Ibid
9
He attempts to do only the acts which are righteous and sacred to please the
supernatural. Behaving in accordance with the norms laid down by religion is righteous
and going against them is ‘sinful’13.
The same approach can also be seen in the views expressed by the supporters of
‘functional theory’. According to Kingslay Davis, Religion is the part of society. It is
common to the group; its beliefs and practices are acquired by each individual as a
member of the group. The worship of gods is a public matter supported by the
community and performed for communal purposes.
The other supporters of functional theory also confirm the same view that religion is a
universal, permanent, pervasive and perennial institution and it has a vital function in
maintaining the social system. There are many religions in the world and the question at
this stage arises is; which religion should be followed by a person, can a State compel
its citizens to follow a particular religion, can a State have its own religion and can a
government give preferential treatment to the followers of a particular religion?
The answer to all these questions is negative if the State has adopted the theory of
secularism. A secular state is neither supposed to compel its citizens to adopt a
particular religion nor it can give preferential treatment to the followers of particular
religion. Secularism eliminates God from the matters of the state.
Secularism can also mean the practice of working to promote any of those three forms
of secularism. As such, an advocate of secularism in one sense may not be a secularist
in any other sense. Secularism does not necessarily equate to atheism; many secularists
are religious, while atheists often accept the influence of religion on government or
society. Secularism is an essential component of a secular humanist social and political
ideology. Some societies become increasingly secular as the result of social processes,
rather than through the actions of a dedicated secular movement; this process is known
as secularization.
13
Ibid
10
2.2 Concept of secularism: The European and the American Perspective

In 1905 the French government passed a law stipulating “the separation of churches and
the state,” thus enshrining secularism as a national principle. The law, which barred the
state from officially recognizing, funding or endorsing religious groups, represented a
major shift in church-state relations in France. It has recently come under increased
scrutiny in connection with the integration of Muslim and other religious minority
groups in French society.14
The French concept of secularism, or Laïcité, was born out of the Revolution of 1789.
The 1789 Declaration of the Rights of Man states in Article 10 that:
“No one may be disturbed on account of his opinions, even religious ones, as
long as the manifestation of such opinions does not interfere with the
established Law and Order.” Prior to the Revolution, Roman Catholicism was
the state religion of France. With the Concordat of 1801, Napoleon re-
established the Church in France, officially recognizing Roman Catholicism as
the majority religion of the French people. Napoleon also officially recognized
Judaism and the Lutheran and Reformed churches. These groups received
official state recognition and support until 1905. France's current constitution,
the Constitution of October 4, 1958, makes explicit reference to two texts: the
Declaration of the Rights of Man and the Preamble to the October 27, 1946
Constitution. The 1946 Preamble guarantees, among other things, “the
provision of free, public and secular education at all levels.”
The first article of France's 1958 Constitution sets forth the secular principle:
“France shall be an indivisible, secular, democratic and social Republic. It
shall insure the equality of all citizens before the law, without distinction of
origin, race or religion. It shall respect all beliefs.”
Separation of church and state is a political and legal doctrine that government and
religious institutions are to be kept separate and independent from each other. The term
most often refers to the combination of two principles: secularity of government and
freedom of religious exercise. The concept of separating church and state is often
credited to the writings of English philosopher John Locke.
14
Ibid
11
According to his principle of the social contract, Locke argued that the government
lacked authority in the realm of individual conscience, as this was something rational
people could not cede to the government for it or others to control. For Locke, this
created a natural right in the liberty of conscience, which he argued must therefore
remain protected from any government authority15.
These views on religious tolerance and the importance of individual conscience, along
with his social contract, became particularly influential in the American colonies and
the drafting of the United States Constitution. Indeed such was Locke's influence,
Thomas Jefferson stated16:
“Bacon, Locke and Newton...I consider them as the three greatest men that have
ever lived, without any exception and as having laid the foundation of those
superstructures which have been raised in the physical and moral science”
The concept was implicit in the flight of Roger Williams from religious oppression in
Massachusetts to found what Rhode Island became on the principle of state neutrality in
matters of faith. The phrase “separation of church and state” is derived from a letter
written by Thomas Jefferson in 1802 to a group identifying themselves as the Danbury
Baptists. In that letter, referencing the First Amendment to the United States
Constitution, Jefferson writes;
“Believing with you that religion is a matter which lies solely between Man &
his God, that he owes account to none other for his faith or his worship, that the
legitimate powers of government reach actions only, & not opinions, I
contemplate with sovereign reverence that act of the whole American people
which declared that their legislature should “make no law respecting an
establishment of religion, or prohibiting the free exercise thereof,”
Thus building a wall of separation between Church & State.
15
Audi Robert, The Separation of Church and State and the Obligations of Citizenship Philosophy and
Public Affairs, volume 18, issue 3 Posted: 1989
16
The Portable Thomas Jefferson, Viking, New York, NY, 1975
12
Another early user of the term was James Madison, the principal drafter of the United
States Bill of Rights. Madison contended “Because if Religion be exempt from the
authority of the Society at large, still less can it be subject to that of the Legislative
Body. Several years later he wrote of “total separation of the church from the state.”
“Strongly guarded as is the separation between Religion & Government in the
Constitution of the United States,” Madison wrote, and he declared, “practical
distinction between Religion and Civil Government is essential to the purity of both,
and as guaranteed by the Constitution of the United States.”
In a letter to Edward Livingston Madison further expanded, “We are teaching the world
the great truth that government do better without Kings and Nobles than with them. The
merit will be doubled by the other lesson that Religion flourishes in greater purity,
without than with the aid of Govt.”
This attitude is further reflected in the Virginia Statute for Religious Freedom,
originally authored by Thomas Jefferson, but championed by Madison, and
guaranteeing that no one may be compelled to finance any religion or denomination,
“No man shall be compelled to frequent or support any religious worship,
place, or ministry whatsoever, nor shall be enforced, restrained, molested, or
burdened in his body or goods, nor shall otherwise suffer on account of his
religious opinions or belief; but that all men shall be free to profess, and by
argument to maintain, their opinion in matters of religion, and that the same
shall in no wise diminish enlarge, or affect their civil capacities17”
Under the United States Constitution, the treatment of religion by the government is
broken into two clauses: the establishment clause and the free exercise clause. While
both are discussed in the context of the separation of church and state, it is more often
discussed in regard to whether certain state actions would amount to an impermissible
government establishment of religion.
17
Ibid
13
The United States Supreme Court has referenced the separation of church and state
metaphor more than 25 times, first in 1878. In Reynolds, the Court denied the free
exercise claims of Mormons in the Utah territory who claimed polygamy was an aspect
of their religious freedom. The Court used the phrase again by Justice Hugo Black in
1947 in Everson. The term has been used and defended heavily by the Court, but is not
unanimously held.
In a minority opinion in Wallace v. Jaffrey18, Justice Rehnquist presented the view that
the establishment clause was intended to protect local establishments of religion from
federal interference. Justice Scalia has criticized the metaphor as a bulldozer removing
religion from American public life19.
Countries have varying degrees of separation between government and religious

institutions. While the United States is recognized as the first country to completely
disestablish its government from any religion in its Constitution ratified in 1791, a
number of other countries have since followed. Nevertheless, the degree of actual
separation between government and religion or religious institutions varies widely. In
some countries the two institutions remain heavily interconnected.
There are new conflicts in the post- Communist world. In the United States the
“Separation of Church and State” is generally discussed as a political and legal
principle derived from the First Amendment of the United States Constitution, which
reads, “Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof . . . .”.
The concept of separation is commonly credited to the combination of the two clauses:
the establishment clause, generally interpreted as preventing the government from
establishing a national religion, providing tax money in support of religion, or otherwise
favouring any single religion or religion generally; and the free exercise clause,
ensuring that private religious practices are not restricted by the government. The effect
of prohibiting direct connections between religious and governmental institutions while
18
472 U.S. 38 (1985)
19
Ibid
14
protecting private religious freedom and autonomy has been termed the “separation of
church and state.20“
Nevertheless, issues of free exercise are also implicated by the extent to which laws are
permitted to impinge upon private religious practice. In the United States, state laws can
prohibit practices such as bigamy, sex with children, human and occasionally animal
sacrifice, use of drugs, or other criminal acts, even if citizens claim the practices are
part of their religious belief system.
However, the federal courts give close scrutiny to any state or local laws that impinge
upon what the courts consider the bona fide exercise of religious practices. The courts
ensure that genuine and important religious rights are not impeded, and that
questionable practices are limited only to the extent necessary. The courts usually
demand that any laws restricting religious practices must demonstrate a fundamental or
“compelling” state interest such as protecting citizens from bodily harm.
The many variations on separation can be seen in some countries with high degrees of
religious freedom and tolerance combined with strongly secular political cultures which
have still maintained state churches or financial ties with certain religious organizations
into the 21st century. In England, there is a constitutionally established state religion
but other faiths are tolerated. The British monarch is the Supreme Governor of the
Church of England, and 26 bishops (Lords Spiritual) sit in the upper house of
government, the House of Lords.
In Norway, the King is also the leader of the state church, and the 12th article of the
Constitution of Norway requires more than half of the members of the Norwegian
Council of State to be members of the state church. Yet, the second article guarantees
freedom of religion, while also stating that Evangelical Lutheranism is the official state
religion.[43] In countries like these, the head of government or head of state or other
high-ranking official figures may be legally required to be a member of a given faith.
Powers to appoint high ranking members of the state churches are also often still vested
in the worldly governments. These powers may be slightly anachronistic or superficial,
however, and disguise the true level of religious freedom the nation possesses.
20
Audi Robert ‘The Separation of Church and State and the Obligations of Citizenship’, Philosophy and
Public Affairs, Vol 18, No 3 (Summer, 1989)
15
In the case of Andorra there are two heads of state. One is the Bishop of Seu d'Urgell, a
town located in Catalonia. He has the title of Episcopalian Coprince. Coprinces enjoy
political power in terms of law ratification and constitutional court designation, among
others.
Two common examples of the most active type of separation are France and Turkey.
The French version of separation is called Laïcité. This model of a secularist state
protects the religious institutions from some types of state interference, but with public
religious expression also to some extent limited. This aims to protect the public power
from the influences of religious institutions, especially in public office.
Religious views which contain no idea of public responsibility, or which consider

religious opinion irrelevant to politics, are less impinged upon by this type of
secularization of public discourse. Turkey, whose population is overwhelmingly
Muslim, is also considered to have practiced the Laïcité School of secularism since
1923. While France comes from a Roman Catholic tradition and Turkey from an
Islamic one, secularism in Turkey and secularism in France present many similarities.
2.3 Concept of Secularism: The Indian Perspective

The Preamble to the Constitution of India signifies that India is a secular state. The
Preamble reflects the way of life adopted by Indian citizens for themselves after
independence. In fact every civilization has also been a mirror of way of life as well as
reflecting movement of human spirit. Religion in each civilization has indicated about
the faith of human beings in absolute values and a way of life to realize them.
Religious faith is continuously providing the passion to preserve in the way of life and
if it declines, obedience degenerates into habit and habit slowly withers way. Therefore
laws, customs, conventions and fashions etc. are not the only means of social control
but the religion and morality also formulate and shape the human behaviour. Religion
and morality are the most influential forces of social control as well as the most
effective guides of the human behaviour. The social life of a man in addition of its
economics, political, philosophical, and scientific and other aspects, has also religious
aspects.
16
Religion is the major concern of man. Man is always having religious quest which
makes him able to become a restless creature even beyond the satisfaction of his
physical needs. Religion revolves around man’s faith in the supernatural forces.
Religion is concrete experience which is associated with emotions, especially with fear,
awe or reverence. Many societies have a wide range of institutions connected with
religion and a body of special officials, with forms or worship, ceremonies, sacred
objects titles, pilgrimages, and the like.
The term ‘secular’ denotes the threefold relationship among man, state and religion.
The word Secular has not been defined or explained under the Constitution in 1950 or
in 1976 when it was made part of the preamble.
A Secular State means that the one that protects all religions equally and does not
uphold any religion as the State religion. Unlike in England where the Queen is the
Head of the Protestant Church in India there is no provision to make any religion the
'established Church'. The state observes an attitude of neutrality and impartiality
towards all religions.
It is assumed that the secular state, howsoever constructed, will minimally have to
contend with and respond to each of the demands of equality, liberty and neutrality. The
liberal claim rests on the impossibility of different religious communities in the same
democratic polity to live together in harmony, without some model of secularism that
embodies the normative force of liberty, equality and neutrality. In other words, every
person should be free to follow any religion, and to act upon its teachings and reject all
other without any interference from the state. Religious freedom is the soul of principle
of liberty enshrined in the Preamble to the Constitution of India.
The Supreme Court in St. Xavier’s College v. State of Gujarat21 observed India is a
secular state; secularism eliminates God from the matter of the state affairs, and ensures
that none shall be discriminated against on the ground of religion. The Constitution of
India recognizes the freedom to profess, practice and propagate the religion under
Article 25. Part (1) of Article 25 secures to every freedom of conscience: and the right
to (i) profess religion; (ii) practice religion; and (iii) propagate religion.
21
(1974) AIR(SC) 1389
17
The term ‘religion’ has not defined in the constitution but the meaning given by the
Supreme Court of India to the religion can be referred here, the Supreme Court in
22
Commissioner, Hindu Religious Endowments V. Sri Lakshmindra Thirtha Swamiar .
Swammiar held,
“Religion is a matter of faith with individuals or communities and it is not
necessarily theistic. A religion has its basis in a system of beliefs or doctrines,
which are regarded by those who profess that religion as conducive to their
spiritual well-being. A religion may not only lay down a code of ethnical rules
for its followers to accept, it might prescribe rituals and observances,
ceremonies and modes of worship, which are regarded as integral parts of
religion and these forms and observance might extend even to matters of food
and dress”.
The freedom of religion guaranteed under Indian constitution is not confined to its
citizens but extends to ‘all persons including aliens.’ This point was underlined by the
Supreme Court in Ratilal Panchand v. State of Bombay23 as it is very important because
substantial number of foreign Christian missionaries in India were engaged at that time
in propagating their faith among the adherents of other religions.
2.4 Secularism under Indian Laws: A Discourse

The Constitution thus declares that every person has a fundamental right not only to
hold whatever religious belief commend themselves to his judgement, but also to
express his beliefs in such overt acts, as are prescribed by his religion and propagate its
tenets among others. The exercise of this right is, however subject to ‘public order,
morality and public health.’ Here the constitution succinctly expresses the limitations
on religious liberty that has been evolved by judicial pronouncements in the United
States and Australia. In fact, the framers of the Indian constitution attempted to
establish a delicate balance between ‘essential interference and impartial interference’
on the part of the state. They kept in consideration the possibilities of arising out of
circumstances in which the government may have to impose restraints on the freedoms
of individuals in collective interests.
22
(1954) AIR 282
23
(1954) AIR SC 388
18
Accordingly Article 25 (2) provides broad sweeping power of interference to the state
in religious matters. This Article imposes drastic limitations on the rights guaranteed
under Article 25(1) and reflects the peculiar needs of Indian society. It is important to
mention here that law providing for the very extensive supervision by the state about
temple administration has been enacted by virtue of this provision. Here it would not be
out place to state that the extensive modification Hindu personal law (marriage, divorce,
adoption, succession etc.) has been effected by legislation based on the provision
permitting measures of social welfare and social reform.
Religious denominations as well as individuals have certain important rights spelt out
under Article 26. The term ‘religious denomination’ has not been defined under the
Constitution.
The Hon’ble Supreme Court has accepted the definition given in Oxford Dictionary,
which defines as ‘a collection of individuals classed together under the same name a
religious sect of body having a common faith and organization and designated by a
distinctive name.’ The Supreme Court in number of cases held that Arya Samaj,
Anandmarga, Vaishanav, The followers of Madhawacharya and other religious
teachers, though not separate religions, yet these are separate religious denomination
and enjoys the protection under Article 26 of the Constitution.
The right under Article 26(a) is a group right and is available to every religious
denomination. Clause (b) of Article 26 guarantees to every religious denomination the
right to manage its own affairs in matters of religion. The expression ‘matters of
religion’ includes ‘religious practices, rites and ceremonies essential for the practicing
of religion.’
An important case that involved the right of a religious denomination to manage its own
affairs in matters of religion was Venkataramana Devaru v. State of Mysore24. In this
matter, Venkataramana temple was belonging to the Gowda Saraswath Brahman
Community. The Madras Temple Entry Authorization Act, supported by Article
25(2)(b) of the Constitution, threw open all Hindu public temples in the state to
Harijans.
24
(1958) AIR 255
19
The trustees of this denominational temple refused admission to Harijans on the ground
that the caste of the prospective worshipper was a relevant matter of religion according
to scriptural authority, and that under Article 26(b) of the Constitution they had the
right to manage their own affairs in matters of religion. The Supreme Court admitted
that this was a matter of religion, but when it faces conflict with Article 25(2) (b), it
approved a compromise arrangement heavily weighted in favour of rights of Harijans
and a token concession to the right of a religious denomination to exercise internal
autonomy.
Further Article 26(c) and (d) recognize the right of a religious denomination to own
acquire and administer movable and immovable property in accordance with law.
However it was held in Surya Pal Singh vs. State of U.P25. that this guarantee did not
imply that such property was not liable to compulsory acquisition under the U.P.
Abolition of Zamindari Act. Similarly in Orissa, land reforms resulted in the
expropriation of a village and surrounding agricultural land dedicated to the
maintenance of a Hindu deity. Since compensation was paid, the High Court held that
there was only a change in the form of the property.
25
(1975) AIR 1083
20
Chapter 3- Gender Justice in India
3. GENDER JUSTICE IN INDIA: A CRITICAL STUDY
3.1 ‘Gender’ and ‘Justice’: Meaning and Concept
There is a difference in Sex and Gender. Sex refers to biologically defined and
genetically acquired differences between males and females, according to their
physiology and reproductive capabilities or potentialities. It is universal and mostly
unchanging, without surgery.
Gender refers to the economic, social, political, and cultural attributes and
opportunities associated with being women and men. The social definitions of what it
means to be a woman or a man vary among cultures and change over time. Gender is a
sociocultural expression of particular characteristics and roles that are associated with
certain groups of people with reference to their sex and sexuality.
26
26
International Federation of Red Cross and Red Crescent Societies, 2003
21
The issue of gender justice has been debated over for a long time and is still one of the
biggest human rights challenges. Although gender equality is a fundamental human
right and is essential for a peaceful and developed society, achieving gender equality is
still an unfinished business. In India, deeply-rooted cultural institutions play a major
role in perpetuating gender inequality. The Indian courts often act as activists for people
and a profound Indian Constitution create hope for achieving gender justice.
The Constitution of India has given new dimensions of Indian society in certain sphere.
The Constitution does not use the word 'Gender'. It uses the word 'sex' in articles 15(1),
16 (2) and 325 which prohibits discrimination on the grounds of sex 27. Although the
word 'sex' has a narrower meaning than the word 'gender' and the above provisions
merely guard against discrimination on the basis of 'sex' and the 'gender justice' which
aims at much more than mere absence of discrimination. The distinction and
discrimination on the basis of sex, colour, creed, caste, race religion etc. have been done
away with, and according to fundamental rights have been declared void. In the same
strain, Article 14 of the Constitution guarantee quality before the law, Article 15 and 16
remove prohibition or discrimination on the ground of religion, race, caste, sex or place
of birth etc. and also gives a direction to the state to make provisions for women and
children.
Interestingly, our constitution authorizes the state to make special provisions for the
protection and development of women and children. A large number of laws have also
been enacted from time to time for empowering them and raising their status. The
government has amended a number of laws that affected women adversely including
laws related to dowry, rape, cruelty, maintenance, marriage, domestic violence,
prostitution and obscenity etc. The apex court of India has passed several progressive
judgments favouring women. Various welfare and development schemes have been
introduced to improve the living conditions of women and to increase their access to
and control of material and social resources.
27
Constitution of India, J. N. Pandey
22
Further, various special steps have been taken to remove legal, social and other
constraints and disparities to enable them to make use of the rights and opportunities
made available to them yet there are many outdated social customs and traditions which
are still followed, they wield more power and authority than the statutory enactments
and undo, most of the gains of these pragmatic programmes resulting in inequitable
distribution of the fruits of progress and development.
Justice is one of the most important moral and political concepts with no agreed
definition. The word justice is derived from the Latin word “jus” meaning right or law.
The Oxford English Dictionary defines the “just” person as one who typically “does
what is morally right” and is disposed to “giving everyone his or her due,” offering the
word “fair” as a synonym28. The claim for justice gains meaning in specific
circumstances and cultural contexts. Justice is an evolutionary concept. The evolution
of the meaning of justice from the ancient Greek period to the modern day is interesting
to know. One of the earliest written definitions of justice is by Aristotle. “Equals should
be treated equally and unequal unequally”. Aristotle talks about distributive justice,
corrective justice, commutative justice, legal justice, moral justice. In the middle ages,
justice was described as the foundation of the state by St. Augustine who believed
justice was created by the church.
According to Karl Marx, the idea of justice and its content varies with the economic
interest of the ruling class29. Justice according to Chaim Perelman is a virtue among
others. “Each will defend a conception of justice that puts him in the right and his
opponent in the wrong.” Gautama Buddha’s concept of justice is not confined only to
respecting the law, but it also justifies a revolutionary concept of disobedience or
defying law, if the law is evil30.
Philosophers such as Kant, Mill, Rawls, Nozick have given their theories of justice.
John Rawls propounds the idea of “justice as fairness”. A Theory of Justice is one of
the most important works of John Rawls. It offers two principles of justice31.
28
https://www.iep.utm.edu/justwest/
29
https://shodhganga.inflibnet.ac.in/bitstream/10603/67805/6/06_chapter%202.pdf
30
Ronald Dworkin, A Matter of Principle, p. 104-118 Harvard University Press, 1985.
31
John Rawls, A Theory of Justice, Harvard University Press, 1971.
23
From a utilitarian perspective, justice is about designing rules and political institutions
that bring about the greatest happiness for the greatest number of people 32. There are
multiple dimensions of justice identified by Amartya Sen.
To an ordinary person, justice may mean due punishment for a crime. To a philosopher,
justice may mean morality. To a lawyer, justice may mean the application of the rule of
law. The concept of justice is not static; it is an evolutionary concept. The meaning of
justice in popular discourse is the idea of getting what one deserves, fairness, moral
righteousness and equality. The question ‘What is justice?’ can be tackled as narrowly
or as broadly as one likes.
Getting what one deserves includes getting punishments for “immoral” actions.
Fairness is the idea of treating equals equally. It may also mean treating people
unequally to recognise and correct past injustices. For instance, if women or members
of racial minorities have been historically excluded from certain relatively well-paid
occupations, there may be a justifiable case for employment equity measures — giving
suitable candidates from the disadvantaged group preference in hiring33. One common
understanding of justice is also equality in the form of equal citizenship rights. The
understanding of justice as moral righteousness means individual virtues and ethical
conduct.
In her exquisite novel “To Kill a Mockingbird”, Harper Lee familiarises the readers
with justice through a vivid description of injustice. Justice is one of the most important
moral and political concepts with no agreed definition. Both ancient, for example
Aristotle and modern thinkers, for example Rawls see justice as a principle to be
embedded in all social institutions and as a necessary virtue of individuals in their
interactions with others34.
The most plausible candidate for a core definition comes from the Institutes of
Justinian, a codification of Roman law from the sixth century AD, where justice is
defined as ‘the constant and perpetual will to render to each his due’35.
32
https://www.cisl.cam.ac.uk/resources/publication-pdfs/the-multiple-meanings-of-justice-in-the-context-
of.pdf
33
https://fernwoodpublishing.ca/files/pursuingjustice.pdf
34
https://www.cisl.cam.ac.uk/resources/publication-pdfs/the-multiple-meanings-of-justice-in-the-context-
of.pdf
35
https://plato.stanford.edu/entries/justice/#JustMappConc
24
Conservative justice is to respect people’s rights under existing law or moral rules, or
more generally to fulfil the legitimate expectations they have acquired as a result of past
practice, social conventions, and so forth. In contrast to it, ideal justice gives us reason
to change laws, practices and conventions quite radically, thereby creating new
entitlements and expectations.
When justice deals with the distribution of rights, goods etc. to the citizens, it is called
distributive justice36. Corrective justice implies making good the loss of a person to
whom some wrong has been done. It stands against injustice. Justice takes a
comparative form when to determine the due of a person; we need to know the claims
of others. It takes a non-comparative form when we know what is due to a person by
knowing only the facts regarding that person.
3.2 Gender Discrimination versus Gender Justice in India

It is a harsh reality that women have been ill-treated in every society for ages an India is
no exception. The irony lies in fact that in our country where women are worshipped as
Shakti, the atrocities are committed against her in all sections of life. She is being
looked down as commodity or as a slave, she is not robbed of her dignity and pride
outside her house but she also faces ill-treatment and other atrocities within the four
walls of her house. They are considered as an object of male sexual enjoyment and
reproduction of children. They are real Dalits (downtrodden) of the society. They are
discriminated at two levels, firstly they suffer because of their gender and secondly due
to grinding poverty.
Women are deprived of economic resources and are dependent on men for their living.
Women works are often confined to domestic sphere, she had to do all house hold
works, which are not recognized and unpaid. In modern times many women are coming
out to work but has to shoulder the double responsibility; one she has to work where she
is employed and secondly she also has to do all the house hold works, moreover, she is
last to be considered and first to be fired as she is considered to be less productive than
her counterpart. Her general status in the family and in the society has been low and
unrecognized.
36
Aristotle, Nichomachean Ethics, Transt H. Rackham, Edn. 195, BKV.11 7
25
From the cradle to grave, females are under the clutches of numerous evils acts as
discriminations, oppressions, violence, within the family, at the work places andin the
society.
The root causes of all the evils practices faced by the women are:
1. Illiteracy,
2. Economic dependence,
3. Caste restrictions,
4. Religious prohibition,
5. Lack of leadership qualities and
6. Apathetic and callous attitude of males in the society.
In our society girls are socialized from their tender age to be dependent on males. Her
existence is always subject to men. In her childhood she is under the protection of her
father, after marriage under the protection of her husband and in old age at the mercy of
her sons. The patriarchal system in India made women to live at the mercy of men, who
exercise unlimited power over them. In order to ameliorate the condition of women in
India Legislature enacted the large volume of enactments and many of these legislations
were enacted in colonial period. Which are as follows:
1. 1829, Abolition of Sati;

2. 1856 Widow Remarriage made legal;
3. 1870 Female infanticide banned;
4. 1872 inter caste, intercommunity marriages made legal;
5. 1891 age of consent raised to 12 years for girls;
6. 1921 women get rights to vote in Madras province:
7. 1929 Child Marriage Restraint Act was passed;
8. 1937 women get special rights to property;
9. 1954 Special Marriage Act was passed;
10. 1955 Hindu Marriage Act was passed;
11. 1956 Suppression of Immoral Traffic in Women and Girls Act was passed;
12. 1961 Dowry Prohibition Act was passed;
13. 1981 Criminal Law Amendment Act was Passed;
14. 1986 The Indecent Representation of Women (Prohibition) Act was Passed;
15. 1987 Commission of Sati (Prevention) Act was passed.
26
Apart from these above mentioned laws there are some enactments pertaining to
industry which contain special provisions for women such as: The Workmen
Compensation Act, 1921; Payment of Wages Act, 1936; Factories Act, 1948; Maternity
Benefit Act, 1961; Minimum Wages Act, !948: Employees State Insurance Act 1948
and Pensions Act ,1987.In addition to this, the Constitution of India which is regarded
as the supreme law of the land too gives special protection to women.
The provision which deals with women rights are as follows:-
Article 14 expresses that the State shall not deny to any person the equality before the
law and equal protection of laws with in the territory of India?. Article 15(1) prohibits
the State to discriminate against any citizen on the grounds only of religion, race, caste,
sex, and place of birth or any of them. Article 15(3) permits the State to make special
provisions for women and children. Article 16 provides that there shall be equality of
opportunity for all citizens and they shall not be discriminated on the basis of religion,
race, caste and sex. Article 39(a) of the Constitution provides that the state in particular
direct its policy towards securing that citizen, men and women equally, have the right to
an adequate means of livelihood. Article 39(e) of the Constitution provides that the
health and strength of workers, men and women, and the tender age of children are not
abused and that citizens are not forced by economic necessity to enter avocations
unsuited to their age or strength. Article 51(A)(e) of the Constitution provides that it
will be the duty of every citizen to renounce practices derogatory to the dignity of
women.
Further, Indian Penal Code, Criminal Procedure Code and Indian Evidence Act too
have some provisions which provide protection and a sense of security to women.
Recently the Government's piecemeal approach to protect women has taken a step
forward enacting a law providing protecting women from domestic violence. With the
establishment of National and State Human Right Commissions and National
Commission for Women, gender issues are receiving greater attention.
27
The Indian Judicial System has independently and effectively intervened on the issue of
women emancipation. For instance, in C. B. Muthamma v. Union of India37 the validity
of the Indian Foreign Service (Conduct an discipline) Rules of 1961 was challenged
which provided that a female employee to obtain a written permission of the
Government in writing before her marriage is solemnized and at any time after a
marriage a women member of the service may be required to resign from service. The
Supreme Court held that such provision is discriminatory against women and hence
unconstitutional. The Supreme Court made it clear that, we do not mean to universalize
or dogmatise that men and women are equal in all occupation and all situations and do
not exclude the need to pragmatise where the requirements of particular employment,
the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either
sex may compel selectivity. But save where the differentiation is demonstrated, the rule
of equality must govern.
In Air India v. Nargesh Mirza38, the Supreme Court struck down the provision of rules
which stipulated termination of service of an air hostess on her first pregnancy as it
arbitrary and abhorrent to the notions of a civilized society.
In Pratibha Ranu v. Suraj Kumar39 the Supreme Court held that the Stridhan property
of a married women has to be placed in her custody, and she enjoys complete control
over it, The mere fact she is living with her husband and using the dowry items jointly
does not make any difference and affect her right of absolute ownership over them.
Another landmark judgement was given by the Apex Court in the case of Gita
Hariharan v. Reserve Bank of India40, in this case the Court interpreted section 6 of the
Hindu Minority and Guardianship Act 1956 and held that the mother could act as the
natural guardian of the minor during the father's lifetime if the father was not in charge
of the affairs of the minor.
37
(1980) SCR (1) 668
38
(1982) SCR (1) 438
39
(1985) SCR (3) 191
40
(1999) SCC (2) 228
28
In Vishaka and others v. State of Rajasthan41, the Supreme Court held that sexual
harassment of working women at her place of an employment amounts to violation of
rights of gender equality and right to life and liberty which is clear violation of Article
14, 15 and 21 of the Indian Constitution. The Court further observed that the meaning
and content of the fundamental rights guaranteed in the Constitution of India are of
sufficient amplitude to encompass all the facts of gender equality including prevention
of sexual harassment or abuse. Further Supreme Court in this case said that, as there is
no law relating to sexual harassment in India, therefore the provisions of International
Conventions and norms are to be taken into consideration, and charted certain
guidelines to be observed at all work places or other institutions, until a legislation is
enacted for the purpose.
In Apparel Export Promotion Council v. A. K. Chopra42, again Supreme Court

reiterated Vishka ruling and said that attempts of sexual harassment of female results in
violation of fundamental rights to gender equality enshrined under Article 14 and21 of
the Constitution. The Court further stated that international instrument such as the
convention on the Elimination of All Forms of Discrimination against Women and the
Beijing Declaration casts obligations on the state to take appropriate measures to
prevent gender inequalities and protect the honour and dignity of women.
Apart from these cases there are many other cases in which the Apex Court had given
the judgments, helping to give a dignified status to the women, for example Madhu
Kishwar v. State of Bihar43, Gaurav Jain v. Union of India44, Delhi Domestic Working
Women's Forum v. Union of India45, Bodhisathwa Gautam v. Subhra Chakraborty46.
In spite of having so many enactments dealing with women and judgments of the
Supreme Court protecting women the downtrodden and poor conditions of women has
not been improved and she still faces all types of atrocities and legislature and judiciary
somewhat fails to provide respect to women in society.
41
(1997) SCC (6) 241
42
(1999) AIR SC 625
43
(1996) SCC (5) 125
44
(1997) SCC (8) 114
45
(1995) SCC (1) 14
46
(1996) SCC (1) 490
29
After independence the founder father of the nation, wanted to reform the society and
were keen to establish an egalitarian society. To achieve this end they used law as an
instrument to check the gender discrimination, number of laws, were enacted to meet
this end but due to strong patriarchal mentality and unfavourable social environment
they failed to accomplish their goal. The social engineering through law was not fully
achieved, while some rights enshrined under the enactments were enjoyed and accepted
by the society most of them remained only in papers due to lack of public support.
Many evils are still practiced on women such as bigamy, child marriages are still in
practice, dowry demands are still on rise, and women are still harassed for dowry.
Malnutrition and illiteracy are growing at alarming rate, rape and molestation have
become daily phenomenon, and moreover still we see women as commodity as one of
the songs of the movie depicts her as Tu cheez badi hai mast mast.
It is said that the law without the public opinion is nothing but a bundle of papers. The
gap between the men and women cannot be bridged by just enacting laws without any
public support and opinion as social engineering laws are different from penal laws
which are just related to injuries and punishment and are deterrent in nature but social
engineering laws enacted to uplift the norms of the society and are progressive in nature
and therefore it should be backed by the will of the people for whom it is enacted. It is
also be clear that centuries old practice cannot be eliminated in one or two days it take
much time. And when laws are enacted to bring radical change in society and are not
backed by the will of the people or laws are ahead of public opinion then it has to face
great resistance and opposition from the conservative thinking of the society and they
are like dead law, which have no effect on society.
In India the most of the laws were not effective as they were ahead of public opinion
and willingness of the people to change the society and give the women the status of
equality in society too lacked, so in order to give women their respective position in the
society strong public opinion should be created through education, seminars and by
taking the help of various other instruments of the society such as media etc., so that the
people of the society should get educated about and change their centuries old thinking
and willingly implement the laws enacted for the emancipation for women.
30
To improve the status of the women in the society the need of the hour is that laws
should be enacted but they should be backed by strong public willingness and public
opinion because so long as conservative social thinking remain deep rooted in the
society laws will not be able to achieve their ends. It must be asserted that social
reforms is in social thinking, behaviour and law would be effective only if they are
backed by major section of the society.
3.3 Gender Justice and Laws in India: A Retrospect

Gender justice is an important issue in India, where women have historically been
subjected to discrimination and oppression. Over the years, several laws have been
enacted to protect women's rights and promote gender equality.
One of the most important laws for promoting gender justice in India is the Protection
of Women from Domestic Violence Act, 2005. This law recognizes domestic violence
as a criminal offense and provides legal recourse to women who are victims of domestic
violence. It also provides for the appointment of protection officers and the
establishment of domestic violence courts.
Another important law is the Sexual Harassment of Women at Workplace (Prevention,

Prohibition and Redressal) Act, 2013. This law aims to prevent sexual harassment of
women in the workplace and provides for the establishment of internal complaints
committees in organizations with more than 10 employees.
In addition to these laws, there are several other laws that aim to promote gender justice
and protect women's rights in India, including the
 Dowry Prohibition Act, 1961,

 Equal Remuneration Act, 1976, and the
 Maternity Benefit Act, 1961.
Despite the existence of these laws, gender justice remains a major challenge in India.
Implementation of these laws is often weak, and social attitudes towards women's rights
and gender roles remain deeply ingrained. However, there have been some positive
developments in recent years, including increased awareness of women's rights and the
growing involvement of women in politics and other public spheres.
31
The Indian Constitution has provided new dimensions to Indian society. The term
gender is not used in the Constitution. Instead of 'Gender' they used the word 'sex'. In
Articles 15 (1), 16 (2), and 325, which prohibit discrimination based on sex, the word
sex is used. The term 'sex' has a narrower connotation than the term gender.
Discrimination based on sex, colour, creed, caste, race, religion, and other factors has
been prohibited under the constitution as they are violative of the Fundamental Rights.
In a similar vein, Article 14 of the Constitution guarantees equality before the law,
while Articles 15 and 16 eliminate prohibitions or discrimination based on religion,
race, caste, sex, or place of birth, among other factors, and provides the state guidance
to establish provisions for women and children. Our constitution, interestingly, gives
the state the authority to make particular provisions for the protection and development
of women and children. From time to time, a slew of laws have been established to
empower them and elevate their status.
Provisions under Indian Constitution to maintain the Gender Justice
The Indian Constitution's framers were aware of women's oppressive and

discriminatory standing in society, so they took extra care to ensure that the state took
proactive actions to ensure their equality. Articles 14, 15(2), 15 (3), and 16 of the Indian
Constitution thus not only prohibit discrimination against women but also provide the
state the authority to grant protective discrimination in their favour in proper
circumstances. These provisions are part of the Fundamental Rights under the Indian
Constitution.
The preamble of the Indian Constitution guarantees social, economic, and political
justice, as well as equality of status and opportunity and individual dignity.
The fundamental rights guarantee gender equality under the law; Articles 14 and 15
prohibit the state from discriminating based on sex; and Article 15(3) states that nothing
in this Article prevents the state from making particular arrangements for women and
children.
32
Article 16 (1) ensures equal opportunity for all citizens in matters relating to
employment or appointment to any state office and Article 16 (2) prohibits
discrimination in employment or appointment to any state office based solely on
religion, race, caste, sex, or other factors. Article 23 establishes the right to equality, as
well as special provisions, such as the prohibition of discrimination based on religion,
colour, sex, or other factors, as well as the prohibition of exploitation.
Part IV of the Indian Constitution contains the Directive Principles, which are no less
important in state government and require, among other things, that the state shall strive
to ensure gender equality. Articles 39(d) and 41 of the Indian Constitution recognized
the principles of "Equal Pay for Equal Work" for men and women, as well as the "Right
to Work."
These all provisions provide various rights and privileges to the people to achieve
Gender Justice.
3.4 Gender Justice and the Indian Judiciary

Gender-based stereotyping enjoined on the patriarchal ideology has been rooted in India
for centuries and many of them have over the years crept into the country’s legal
system. The historic injustices done by society towards women were even visible in the
judicial decisions as well. Equality of status and equality of opportunity is the clarion
call of our Constitution. According to the framers of our Constitution equality could
only be amongst equals; otherwise it might result in injustice. Hence, they proposed the
concept of substantive equality, whereby special provisions were made for unequals to
bring them at par with the equals.
They saw women as victims of the rigid hierarchical social system, and hence,
introduced Article 15 (3) in the Constitution directing the State and all its machineries
to take affirmative action and protective discrimination to alleviate centuries of
exclusion of women from politics, education and public employment.
33
It goes to the credit of Judiciary that the Supreme Court and the various High Courts, in
their plethora of decisions, have recognized and given effect to this vision, affirming
that compensating for discrimination is not an exception to equality, but a necessary
means of achieving equality. Article 15(3) has been used by the Supreme Court, thus,
not only to uphold the laws that treat women favourably than men, but also to interpret
the laws in a manner to extend protection to women.
The infamous Mathura Rape Case – Tukaram and Anr v. State of Maharashtra47,
Nandan Kanan Rape Case – Pratap Mishra v. State of Orrisa48, Raju’s Case – Raju v.
State of Karnataka49, Soumithri Vishnu Case – Soumithri Vishnu v. Union of India50,
Madhu Kishwar v. State of Bihar51, are profound examples of the conservative and
patriarchal approach taken by the Apex Court.
The judgments of the Court in case of Soumithri Vishnu v. Union of India, and which
was subsequently followed in Revathi v. Union of India52, were actually anti-gender
justice decisions. In the pseudo name of protection, it actually widened further the
inequalities faced by women in the wedlock. With increase in judicial activism
Judiciary has always moulded itself into the role of champion for women’s rights. If
any adverse discrimination against women was noted by the Judiciary in any of the
existing laws and State actions, the Judiciary was quick to strike it down. At the same
time, Judiciary has been prompt to uphold the validity of the Legislations enacted for
protection of women’s rights.
47
(1979) SCC (2) 143
48
(1977) AIR SC 1307
49
(1994) AIR SC 222
50
(1985) SCC SUPP 137
51
(1996) SCC (5) 125
52
(1988) AIR SC 835
34
Remnants of judicial activism in India can be traced back to the pre-independence

period. Justice Robert Hill Pinhey, in one of the most revolting and path-breaking
judgments of his time on women emancipation in the famous case of Dadaji Bhikaji v.
Rukhmabai53, in a suit for restitution of conjugal rights in the Bombay High Court. 11-
year-old Rukhmabai was married to 19 years old Dadaji Bhikaji. She questioned the
validity of her marriage with Dadaji. The case caused a lot of disturbance among the
conservative minds of the society, who indeed were the majority. It raised multiple
debates on subjects like women education, child marriages, consent, Hindu law,
customs and traditions etc. Pinhey J. held that:
“It seems to me that it would be a barbarous, a cruel, a revolting thing to do to

compel a young lady, under those circumstances, to go to a man whom she
dislikes, in order that he may cohabit with her against her will.”
However, Pinhey succeeded in drawing attention to the vexed question of the

relationship between morality and law, and in embedding the case within a broader
legal-humanitarian framework. His verdict made the case inseparable from the
women’s cause. There was no chance for those who sought to make it a private
matrimonial dispute.
The Indian judiciary has also shown a mixed trend over the years towards the issues of
women. While the period immediately after Independence, up to the seventies
witnessed a conservative and narrow-minded judicial system, the late eighties and
nineties have seen the emergence of judicial activism which reached its heights
recently. The year 2018 has been one such year where the Supreme Court had decided
to throw away many such gender-based stereotypes and inequalities thrust upon by the
society upon women.
53
(1885) ILR 9 BOM 529
35
In C. B. Muthamma vs. Union of India54, the Supreme Court struck down the
discriminatory rules of the Indian Civil Services against women on the ground that they
violated the fundamental right of women employees to equal treatment in matters of
public employment. Justice Krishna Iyer has stated that:
“Freedom is indivisible, so is justice. That our founding faith enshrined in

Articles 14 and 16 should have been tragically ignored vis-à-vis half of India’s
humanity, viz., our women is a sad reflection on the distance between
Constitution in the book and law in action.”
In Air India v. Nargesh Mirza55, the Supreme Court struck down the Air India
Regulations relating to retirement and pregnancy bar on the services of Air hostesses as
unconstitutional on the ground that the conditions laid down therein were entirely
unreasonable and arbitrary.
The nineties beaconed, the emergence of a new era of judicial activism and dynamism
towards rape laws. It witnessed the rekindling of the hearts of the Indian judges towards
the cause of justice. The modern scientific and technological developments taking place
in the society, as well as the enlightenment of the inner conscience of the people at
large, no doubt, had its effect on the judicial process, and it revived its energies to forge
new tools and devise new remedies for the purpose of safeguarding the rights and
liberties of the people, especially women.
In the historic judgment on gender equality in the case of Githa Hariharan v. RBI56, the
Supreme Court held that the mother can act as a natural guardian even when the father
is alive.
In Neera Mathur v. L.I.C57, the Court recognised woman’s right to privacy in respect of
information regarding her reproductive functions. It held that the questionnaire that
sought information on the dates of the menstrual periods and past pregnancies
amounted to an invasion of the privacy of a person and therefore could not be made.
54
(1980) SCR (1) 668
55
(1982) SCR (1) 438
56
(1992) SCC (2) 228
57
(1992) SCC (1) 286
36
The Supreme Court of India has in cases like Govt. of A.P. v. P. B. Vijayakumar58,
Union of India v. K .P. Prabhakaran59 13, the Supreme Court has held that protective
discrimination can be made under Article 15(3) of the Constitution.
The Supreme Court has demonstrated great judicial activism while coming to rescue of
the working women even at the cost of resorting to judicial activism under Article 141
of the Constitution. To combat the sexual harassment experienced by women at
workplaces the Court stepped into the shoes of the lawmaker and issued directions in
the sensational case of Vishaka and others v. State of Rajasthan60.
In a PIL filed before the Supreme Court emphasised the need for effective legislation in
India to curb sexual harassment of working women. The Court followed this decision
again in Apparel Export Promotion Council v. A. K. Chopra61.
Justice K Rama Swamy in Madhu Kishwar v. State of Bihar62, observed that:
“Half of the Indian population too are women. Women have always been
discriminated against and are suffering discrimination in silence. Self-sacrifice
and self-denial are their nobility and fortitude and yet they have been subjected
to all inequalities, indignities, inequality and discrimination.”
Even though the State has not yet made any effort to introduce Uniform Civil Code in
India, the judiciary has recognised the necessity of the uniformity in the application of
civil laws like the law of marriage, succession, adoption and maintenance etc., in the
case of Sarla Mudgal v. Union of India63, and other cases.
Through cases like Mary Roy v. State of Kerala64, the Apex Court has executed key
verdicts on women’s equal rights over the property. In C .M. Mudaliar vs. Idol of Sri S.
Swaminanthaswami Thirukoil65, the Supreme Court has highlighted the right of women
in India to eliminate gender-based discrimination particularly in respect of property so
as to attain economic empowerment.
58
(1995) AIR SC 1648
59
(1997) SCC (11) 638
60
(1997) SCC (6) 241
61
(1999) AIR SC 625
62
(1996) SCC (5) 125
63
(1995) SCC (3) 635
64
(1986) AIR KER 1011
65
(1996) SCC (8) 525
37
In Gaurav Jain v. Union of India66, the Court speaking through Justice K. Ramaswamy
has elaborately dealt with the issue pertaining to the rescue and rehabilitation of
prostitutes and also their children which have far-reaching circumstances. The court
also issued guidelines for the same.
The Court exercised judicial activism and imparted a revolutionary and ground-
breaking judgment in the case of Bodhisattwa Gautam v. Subhra Chakraborty67,
wherein it was held that rape is a crime that violates the right to life under Article 21
and described it as “deathless shame and the gravest crime against human dignity” and
ordered interim compensation to the rape victims. The Court recognised that
fundamental rights can be enforced even against private bodies and individuals.
Decisions of the Supreme Court have had a remarkable impact on rape victim justice
movement. An increased sensitivity towards the plight of the victims is particularly
noticeable in the landmark case of State of Punjab v. Gurmit Singh68. Justices Dr AS
Anand and Saghir Ahmad made some revolutionary and ground-breaking observations
in this case and provided guidelines that should be observed by the Courts during rape
trials.
The judiciary has on many occasions, while convicting the accused of rape, ordered
compensation to be paid to the hapless victims. In the Delhi Domestic Working
Women’s Forum v. Union of India69, the Indian judiciary has laid down the following
broad parameters in assisting the victims of rape, in line with the core guidelines of
International documents.
In yet another landmark case, Chairman, Railway Board v. Chandrima Das70, the Court
asked railways to pay rupees 10 lakh as compensation to the prosecutrix for the rape
committed by some railway officials in the railway restroom.
66
(1997) SCC (8) 114
67
(1996) SCC (1) 490
68
(1996) AIR SC 1393
69
(1995) SCC (1) 14
70
(2000) SCC (2) 465
38
On the issue of “equal pay for equal work”, the Supreme Court has in the case of
Associate Banks Officer’s Association v. State Bank of India71, upheld the Equal
Remuneration Act and held that, women workers are in no way inferior to their male
counterparts. Hence, there should be no discrimination on the ground of sex against
women in payment of remuneration.
In State of Maharashtra v. Madhukar Narayan Mardikar72, the Supreme Court held that
even a prostitute has a right to privacy under Article 21, and no person can rape her just
because she is a woman of easy virtue.
In Rajesh Kumar Gupta v. State of Uttar Pradesh73, the Supreme Court, while
concurring with the view taken by the High Court of Allahabad in respect of the
reservation of 50% posts in favour of female candidates as primary school teachers,
held that, Article 15(3) of the Constitution enables the State Government to make
special provisions for women and children, notwithstanding, the prohibition contained
in Article 15(1). It was observed that, “particularly viewed in the background of the fact
that a large number of young girls below the age of ten years were taught in the primary
schools and recognizing that it would be preferable that such young girls are taught by
women, the reservation of 50% of the posts in favour of female candidates was
justified.
In the case of Anuj Garg v. Hotel Association of India74, the apex court declared Section
30 of Punjab Excise Act 1914, which prohibited employment of women in any part of
such premises in which liquor or intoxicating drugs were consumed by the public, as
unconstitutional, holding that right to self-determination is an important off-shoot of the
gender justice discourse. Hence instead of putting curbs on women’s freedom, their
empowerment would be a more tenable and a socially wise approach. On the same
analogy, the closure of Dance-bars was declared to be affecting women’s right to earn
livelihood.
71
(1998) AIR SC 32
72
(1991) SCC (1) 57
73
(2005) SCC (5) 172
74
(2008) SCC (3) 1
39
In the recent Judgment of Charu Khurana and Others v. Union of India75 the Apex
Court has once again expounded the concept of Gender Justice by observing that:
“Though there has been formal removal of institutionalized discrimination, yet,

the mind set and attitude ingrained in the subconscious have not been erased”.
In this case, the main grievance of the Petitioner was that the Cine Costume Makeup
Artists and Hair Dressers Association of Mumbai had refused to issue Makeup Artist
Card to the Petitioner on the ground of her gender, so that the male members were not
deprived of work as Makeup Artist. While referring to Fundamental Duties provided
under Clauses (e) and (j) of Article 51-A, the Supreme Court, held that:
“It is clear as a cloudless sky that all practices derogatory to the dignity of
women are to be renounced”.
The discrimination faced by women in military service, of being denied permanent

service commission , though equally competent and eligible as their male counterparts,
has also been done away in the judgment of Annie Nagraja and Ors v. Union of India76
by the Delhi High Court.
In Lillu @ Rajesh and Anr v. State of Haryana77, accused had challenged his conviction
for the offence of rape punishable under Section 376 of IPC. The conviction was
recorded by the Court of Additional Session Judge, Delhi and confirmed by the High
court in first appeal. The medical evidence of the doctor, who conducted two-finger
test, showed that hymen was completely torn. The doctor stated the possibility of
prosecutrix being habitual to sexual intercourse cannot be ruled out.
Apex Court held that sole testimony of prosecutrix itself is enough to record a
conviction, when her evidence is read in its totality and found to be worth of reliance.
As prosecutrix was a minor, the question as to whether she was habituated to sexual
activities or not, was held to be immaterial to determine the issue of consent. It was
further held that even if the victim was previously accustomed to sexual intercourse, it
cannot be the determinative question.
75
(2015) SCC (1) 192
76
(2015) SCC Online 11804
77
(2013) SCC (14) 643
40
According to apex court, even if the victim had lost her virginity earlier, it can certainly
not give a license to any other person to rape her. The apex court held that:
“Undoubtedly the two-finger test and its interpretation violate the right of rape
survivors to privacy, physical and mental integrity and dignity. Medical
procedures should not be carried out in a manner that constitutes cruel,
inhuman or degrading treatment”.
The very recent decisions of the Supreme Court beginning from the TRIPLE TALAQ
case - Shayara Bano v. Union of India & Others78 to the very controversial
SABARIMALA case - Indian Young Lawyers Association v. The State of Kerala79, the
Supreme Court has showcased a never before proactive role in ensuring gender justice
not only in the best interest of women but in the interest of the whole of humanity. The
abolition of the practice of triple talāq by the Supreme Court has brought in a positive
wave towards Uniform Civil Code80. The Court has ended a religious practice that
demands wives to be in servitude to their husbands.
On 6th September 2018, another historic and progressive judgment was passed by the
Chief Justice Deepak Mishra by reading down Section 377 IPC by decriminalising
homosexuality. The judgment is one of the most prominent judgments passed by the
Honourable Supreme Court in ensuring gender justice81.
In The Secretary, Ministry of Defence v. Babita Puniya & Ors82 the Apex Court has
granted permanent commission to women officers in the Army irrespective of their
number of years of service.
Again in the case of Joseph Shine vs. Union of India83, the Court overruled its own
judgment in the case of Soumithri Vishnu vs. Union of India & Anr., by decriminalising
adultery and striking it off the Indian Penal Code holding that the law was based on
gender stereotypes and thus violated Articles 14 and 15 of the Constitution as the law
considered only the husband of the adulteress aggrieved while the wife of the adulterer
had no interests.
78
(2017) SCC (9) 1
79
Supreme Court of India, dated 28 September, 2018
80
Supra 74
81
Navtej Singh Johar & Ors.vs. Union of India, SC Writ Petition (Criminal) no. 76 of 2016
82
Civil Appeal Nos 9367-9369 of 2011
83
SC Writ Petition (Criminal) no. 194 of 2017
41
The Court went a step ahead and held that adultery itself cannot be made an offence as
subjecting interpersonal relationships to the rigours of criminal law would amount to an
unwarranted intrusion into the right to privacy.
Off late, the Court has lifted the ban on women of 10 to 50 years from temple entry at
Sabarimala in Kerala. Justice Deepak Mishra has pointed out the inequalities persistent
in modern society based on gender.
“The dualism that persists in religion by glorifying and venerating women as

goddesses on one hand and by imposing rigorous sanctions on the other hand in
matters of devotion has to be abandoned. Such a dualistic approach and an
entrenched mind-set result in indignity to women and the degradation of their
status. The society has to undergo a perceptual shift from being the propagator
of hegemonic patriarchal notions of demanding more exacting standards of
purity and chastity solely from women to be the cultivator of equality where the
woman is in no way considered frailer, lesser or inferior to man.”
The heavy protests that followed the Sabarimala Court order and still continues,
indicates that judicial activism has travelled ahead of its time in ensuring gender justice
while the conservative and patriarchal society disavows these vicissitudes. In Krishan
Lal vs. State of Haryana84 it was aptly remarked by Justice Krishna Iyer that:
“One sensitized Judge is far better armour against gender outrage than the long
clauses of sections with the entire protection writ into it.”
It is indeed an hour of intense pride that judiciary is finally taking cognisance of the
atrocities and injustices levelled against women for ages. Sometimes laws have to act as
instrumentalities for social change. The women clenched in the deep roots of patriarchy
entrenched in the Indian society for aeons, calls for judicial interference to free them.
84
(1982) SC 1252
42
Chapter 4- Uniform Civil Code
4. UNIFORM CIVIL CODE IN FURTHERANCE OF

SECULARISM AND GENDER JUSTICE: A
CRITIQUE
4.1 UCC: Meaning and Concept
The Uniform Civil Code is a proposal in India to formulate and implement personal
laws of citizens which apply on all citizens equally regardless of their religion, gender
and sexual orientation. Currently, personal laws of various communities are governed
by their religious scriptures.
Part IV of the Indian Constitution provides for Directive Principles of State Policy.
Though these principles are guidelines and are not enforceable in a court of law
however they are indispensable in the governance of the country. One such directive
principle is given under Article 44:
The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.
It is to be noted that uniform civil code which is in totality in itself has the sense of
‘uniformity’ which is to be brought in the secular state and the applicability of such
code extends to all the citizens irrespective of their religion, caste and tribe.
After being applicable to all, such a code becomes futile pertaining to our personal laws
whether it is Hindu law, Muslim law or any other personal law in which the issues
related to marriage, divorce, succession, inheritance, adoption and other family
matters85.
85
http://www.mightylaws.in/2035/uniform-civil-code-india-meaning-prospects.
43
There is multiplicity of family laws in India and they have their own personal laws like
the Hindus have their Hindu law (Hindu Marriage Act, 1955), Muslims have their
Muslim law, Christians have their Christians Marriage Act, 1872, the Indian Divorce
Act, 1869, the Jews have their uncodified customary marriage law, Parsis have their
own Parsi marriage and Divorce Act, 1936 and other laws86.
It is seen personally so far that each person carries his own law wherever he goes in
India. The personal laws vary widely on the basis of their sources, philosophy and
application. Therefore, an inherent difficulty and resistance is seen so as to bringing
people together and to unite them when they are governed by different religions and
personal laws87.
4.2 Historical background of UCC
The debate for a uniform civil code dates back to the colonial period in India. Prior to
the British rule, under the East India Company (1757–1858), they tried to reform local
social and religious customs by imposing Western ideologies on India.
The Lex Loci Report of October 1840 emphasised the importance and necessity of
uniformity in codification of Indian law, relating to crimes, evidences and contract but
it recommended that personal laws of Hindus and Muslims should be kept outside such
codification88. This separation of Hindus and Muslims before law was part of the
Divide and Rule policy of the British Empire that allowed them break the unity among
different communities and rule over India. According to their understanding of religious
divisions in India, the British separated this sphere which would be governed by
religious scriptures and customs of the various communities (Hindus, Muslims,
Christians and later Parsis)89. These laws were applied by the local courts or panchayats
when dealing with regular cases involving civil disputes between people of the same
religion; the State would only intervene in exceptional cases.
86
https://www.lawteacher.net/free-law-essays/civil-law/uniform-civil-code.php.
87
Ibid
88
Banerjee, Anil Chandra (1984). English Law in India. Abhinav Publications. p. 134.
89
Sarkar, Sumit; Sarkar, Tanika (2008). Women and Social Reform in Modern India: A Reader
44
Throughout the country, there was a variation in preference for scriptural or customary
laws because in many Hindu and Muslim communities, these were sometimes at
conflict90; such instances were present in communities like the Jats and the Dravidians.
The Shudras, for instance, allowed widow remarriage—completely contrary to the

scriptural Hindu law91. The Hindu laws got preference because of their relative ease in
implementation, preference for such a Brahminical system by both British and Indian
judges and their fear of opposition from the high caste Hindus.
The difficulty in investigating each specific practice of any community, case-by-case,

made customary laws harder to implement. Towards the end of the nineteenth century,
favouring local opinion, the recognition of individual customs and traditions
increased92.
The Muslim Personal law (based on Sharia law), was enforced in different parts of
India. It had no uniformity in its application at lower courts due to the diversity of the
local cultures of Muslims in different parts of India. Even though some communities
converted to Islam, the local indigenous culture continued to be dominant in their
practise of Islam and therefore the application of Sharia Law was not uniform across the
country. This led to the customary law, which was often more discriminatory against
women, to be applied over it. Women, mainly in northern and western India, often were
restrained from property inheritance and dowry settlements, both of which the Sharia
provides93. Due to pressure from the Muslim elite, the Sharia law of 1937 was passed
which stipulated that all Indian Muslims would be governed by Islamic laws on
marriage, divorce, maintenance, adoption, succession and inheritance.
Therefore, while Hindus have to follow the Hindu code bill, Muslims and other
religions were given the liberty to follow their own respective laws. For Muslims the
All India Muslim Personal Law Board makes the laws, which is a private entity.
90
Ibid
91
Ibid
92
Ibid
93
Lawrence, Bruce B; Karim, Aisha (2007). On Violence: A Reader
45
The Uniform Civil Code became a flashpoint in Indian politics in 1985 during the Shah
Bano case. The Supreme Court had held that Bano, a Muslim woman, should get
alimony from her ex-spouse. In the context of that judgment the court had said a
uniform Personal law was first framed during the British Raj, mainly for Hindu and
Muslim citizens. The British feared opposition from community leaders and refrained
from further interfering within this domestic.
The demand for a uniform civil code was first put forward by women activists in the
beginning of the twentieth century, with the objective of women's rights, equality and
secularism. Till Independence in 1947, a few law reforms were passed to improve the
condition of women, especially Hindu widows. In 1956, the Indian Parliament passed
Hindu Code Bill amidst significant opposition. Though a demand for a uniform civil
code was made by Prime Minister Jawaharlal Nehru, his supporters and women
activists, they had to finally accept the compromise of it being added to the Directive
Principles because of heavy opposition.
4.3 Indian Constitution and UCC
The constitution has a provision for Uniform Civil Code under Article 44 as a Directive
Principle of State Policy which states:
“The State shall endeavour to secure for the citizens a uniform civil code
throughout the territory of India.”
Since it has been a part of Directive Principles which is nothing but unenforceable
guidelines hence it still has not been implemented and such cases of paper protection is
not an adequate ground to move the Court of Law.
The Uniform Civil Code is not included in Fundamental Rights, but in post modern
India, quick footed thinking of this kind has now resulted in well considered production
of a mirror image of the desired object of the uniform civil code in the form of
harmonised personal law system.
46
The demand for a uniform civil code essentially means unifying all these personal laws
to have one set of secular laws dealing with these aspects that will apply to all citizens
of India irrespective of the community to which they belong.
Though the exact basis on which such a uniform code is to be framed have not been
spelt out, it should presumably incorporate the most modern and progressive aspects of
all existing personal laws while discarding those which are retrograde 94. The main
cause of controversy pertaining to the Uniform Civil Code has been secularism and the
freedom of religion enumerated in the Constitution of India.
The preamble of the Constitution states that India is a Secular Democratic Republic and
thereby it means that the State does not endorse any specific religion. A secular State is
one which shall not discriminate against anyone on the ground of religion. It means that
religion should not interfere with the life of an individual. The Indian Constitution
contains articles mandating equality and non-discrimination on the grounds of sex
(Articles 14-18).
However, several laws exist that apparently violate these principles and continue to be
there especially in personal laws of certain communities which contain provisions that
are deemed to be highly discriminatory against women.
The Indian Constitution expressly stands for gender equality. However, even after half a
century from the framing of the Constitution, the ideal of Uniform Civil Code is yet to
be achieved.
Women, who make up nearly a half of India, continue to demand for a gender just code
to enjoy equality and justice irrespective of the community to which they belong. The
Uniform Civil Code is thus required not only to ensure (a) uniformity of laws between
communities, but also (b) uniformity of laws within communities ensuring equalities
between the rights of men and women95.
94
http://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=98057. Accessed
25/04/2023
95
F. Agnes, “Hindu Men Monogamy and Uniform Civil Code” (50) Economic and Political
47
It is neither time-bound nor carries a compulsive urgency. But the Hindu

fundamentalists make it a militant demand that the Hindu law should be made the
national family law. There is apprehension in the mind of the Muslim minority that the
Quran’ is in danger, that its sacred family law will be ineffective if the former is
brought into force. The Supreme Court has often expressed displeasure at the delay in
framing a uniform civil code, which was regarded as a secular imperative. Raging
controversy demanding the uniform code followed and was resisted in full fury by the
Muslim minority, with distinguished exceptions whenever an attempt had been made at
enacting of such a code.
Attempts have been made from time to time for enacting a Uniform Civil Code after
independence and the Supreme Court in various cases has been giving directions to the
government for implementing Article 44 of the Constitution and to reform the personal
laws specially those relating to the minorities and to remove gender bias as well as laws
that disfavour women therein. While a uniform civil code is not particularly high on the
national agenda, value-based progressive changes, preserving the separate identity of
each religious group, is a feasible project avoiding insult and injury to any minority.
This may be a preliminary step to pave the way for a common code. Mobilization of
Muslim, Christian and Parsi opinion in this direction is sure to yield results and reduce
fundamentalist resistance across the country. Maybe, to facilitate a national debate, a
facultative common code may be drawn up at a non-governmental level and that it will
be purely optional for minorities to accept or reject those provisions.
Initially the idea of Uniform Civil Code was raised in the Constituent Assembly in 1947
and it was incorporated as one of the directive principles of the State policy by the sub-
committee on Fundamental Rights and clause 39 of the draft directive principles of the
state policy provided that the State shall endeavour to secure for the citizen a Uniform
Civil Code.
The arguments put forward was that different personal laws of communities based on
religion, crippled India in its progress and it was suggested that a Uniform Civil Code
should be in place at the soonest possible juncture to promote the development of the
newly independent nation. Since the Uniform Civil Code was a politically sensitive
issue, the founding fathers of the Constitution arrived at a compromise by placing it
under Article 44 as a directive principle of state policy.
48
4.4 UCC and Secularism in India
Secularism and the freedom of religion has been the spine of controversy that revolves
around UCC which is enumerated in the Constitution of India. As per the preamble of
the Indian Constitution which states that ‘Secular Democratic Republic’ which implies
that there should not be state religion. It is to be noted that a state is only concerned
with the relation between man and man and not the relation of man with God which
further implies that there should be no interference of any religion with the mundane
life of an individual96.
In the case of S.R. Bommai v. Union of India97, it was held by the court that religion is
the matter of individual faith and cannot be mixed with the secular activities. Secular
activities can be regulated by the State by enacting a law.
According to Article 25 and 26 of the Indian Constitution which guarantees right to

freedom of religion, where Article 25 guarantees to every person the freedom of
conscience, and the right to profess, practice and propagate religion. But such a right is
subjected to some reasonable restrictions such as public order, morality and health
envisaged in Part III of the Constitution of India98.
The scope of Article 25 and 26 extends to acts done in pursuance of religion and
contains guarantees for ritual and observations, ceremonies and modes of worship
which are the integral parts of the religion.
In a civilized society, there is no necessary connection between religion and personal

law. The UCC will not and shall not result in the intrusion of one’s religious beliefs that
relates mainly to maintenance, succession and inheritance which implies that under the
UCC, a Hindu will not be compelled to perform Nikah and under Muslim law, a
Muslim will not be compelled to perform Saptpadi. But there will be a common law in
the matters of inheritance, maintenance, right to property and succession99.
96
https://www.lawteacher.net/free-law-essays/civil-law/uniform-civil-code.php.
97
(1994) AIR SC 1918.
98
Supra note 43
99
Supra Note 43
49
The whole debate can be summed up by the judgment given by Justice R.M. Sahai who
said:
“Ours is a secular democratic republic. Freedom of religion is the core of our

culture. Even the slightest of deviation shakes the social fibre. But religious
practices, violative of human rights and dignity and sacerdotal suffocation of
essentially civil and material freedom are not autonomy but oppression.
Therefore, a unified code is imperative, both for protection of the oppressed and
for promotion of national unity and solidarity100.”
4.5 UCC and Gender Justice in India
The implementation of a uniform civil code and the issue of gender justice, these two
are closely connected to each other in Indian socio legal perspective. Notwithstanding
its need and importance, the state’s politico-legal standpoint about its implementation
attracts in-depth legal inquiry. On the other dimension, the basic issue of ensuring
justice and equality to women is getting trapped in many other contemporary issues like
religion, secularism, and freedom. However, one cannot flounce the main issue under
the disguise and harp on other relatively connected issues day in and day out. Gender
issues, in this regard need to be addressed very seriously. This paper is an attempt to co-
relate the question of gender justice and equality to the issue of the adoption of uniform
civil code throughout the territory of India. Women empowerment in core areas like
social status, gender bias, health, security and empowerment are of urgent necessity.
Article 44 expects from the State to secure a Uniform Civil Code for all citizens of
India.
There is no Uniform Civil Code in India but a Uniform Criminal Code exists. The
Criminal law is equally applicable to all citizens irrespective of their religious
affiliation. However in the case of civil law particularly in the matter of personal laws
there is no uniformity.
100
Ibid
50
The law is relating to marriage, divorce, maintenance, guardianship and succession

governing the Hindus, Muslims and Christians etc., is different and varies from one
religion to other. This is the time to discuss all the personal law of every community
with the various judgments of the Supreme Court of India where the apex court has
suggested to the Central Government for the enactment of a Uniform Civil Code. A
uniform civil code will help the cause of national integration. It is the humble opinion
that a Uniform or common civil code is possible only when the governments consider
the gender justice as the ultimate goal.
There are different laws like the Hindu Marriage Act 1955; the Hindu Succession Act
1956; the Hindu Minority and Guardianship Act 1956, the Hindu Adoption and
Maintenance Act 1956; governing the personal matters of Hindus. The Sharia Act 1937,
The Dissolution of Muslim Marriage Act 1939 and the Muslim Women (protection of
Rights on Divorce) Act 1986 etc., which are based on the tenets of Holy Quran, govern
the personal matters of Muslims.
Similarly the Indian Christians are governed by the Indian Christian Marriage Act 1989,
the Indian Divorce Act 1969 and the Cochin Christian Succession Act 1921 etc. Parsis
are governed by a different set of laws. Thus it is clear that there is no uniformity in all
personal laws as they confer unequal rights depending on the religion and the gender.
4.6 Uniform Civil Code in furtherance of Secularism and Gender Justice vis-à-vis
Indian Judiciary
The judiciary in India has taken note of the injustice done to the women in the matters
of many personal laws. It has been voicing its concern through a number of judgments
indicating the necessity to have uniformity in personal matters of all the citizens.
51
In the case of Mohd Ahmed Khan vs. Shah Bano Begum101 pertaining to the liability of a
Muslim husband to maintain his divorced wife beyond Iddat period, who is not able to
maintain herself, the Supreme Court held that:
“It is also a matter of regret that Article 44 of our Constitution has remained a
dead letter.” Though this decision was highly criticized by the Muslim
Fundamentalists, yet it was considered as a liberal interpretation of law as
required by gender justice. Later on, under pressure from Muslim
Fundamentalists, the central Government passed the Muslim Women’s
(Protection of rights on Divorce) Act 1986, which denied right of maintenance
to Muslim women under Section 125 CrPC. The activist rightly denounced that
it “was doubtless a retrograde step. That also showed how women’s rights have
a low priority even for the secular state of India. Autonomy of a religious
establishment was thus made to prevail over women’s rights.”
In Sarla Mudgal (Smt.), President, Kalyani and others v. Union of India and Others102
the Apex Court while delivering the judgment directed the Government to implement
the directive of Article 44 and to file affidavit indicating the steps taken in the matter
and held that, “Successive governments have been wholly remiss in their duty of
implementing the Constitutional mandate under Article 44, Therefore the Supreme
Court requested the Government of India, through the Prime Minister of the country to
have a fresh look at Article 44 of the Constitution of India and endeavour to secure for
its citizens a uniform civil code throughout the territory of India.”
However, in Ahmadabad Women’s Action Group (AWAG) v. Union of India103, a PIL

was filed challenging gender discriminatory provisions in Hindu, Muslim and Christian
statutory and non-statutory law.
101
(1985) AIR SC 945
102
(1995) AIR SC 1531
103
(1997) AIR SC 3614
52
In this case the Supreme Court became a bit reserved and held that the matter of
removal of gender discrimination in personal laws involves issues of State polices with
which the court will not ordinarily have any concern.
The decision was criticized that the apex court had virtually abdicated its role as a
sentinel in protecting the principles of equality regarding gender related issues of
personal laws of various communities in India104.
The Apex Court pursued the same line in Lily Thomas etc. v. Union of India and
others105 and held that the desirability of Uniform Civil Code can hardly be doubted.
But it can concretize only when social climate is properly built up by the society,
statesmen amongst leaders who instead of gaining personal mileage rise above and
awaken the masses to accept the change for the betterment of the nation at large.
The situation regarding the personal laws for Christians in India was different. In their
case, the courts seemed to be bolder and took a progressive stand in terms of gender
equality. For instance when the case of Swapana Ghosh v. Sadananda Ghosh106, the
Calcutta High Court expressed the view that sections 10 and 17 of the Indian Divorce
Act, 1869, should be declared unconstitutional but nothing happened till 1995.
Again in yet another case, the Kerala High Court in Ammini E.J. v. Union of India107
and Bombay High Court in Pragati Verghese v. Cyrill George Verghese108 have
categorically struck down the section 10 of Indian Divorce Act, 1869 as being violative
of gender equality.
In September 2001, a poor Muslim woman, Julekhabhai, sought changes in the divorce
provisions in Muslim law as well as that of polygamy. The Supreme Court asked her to
approach the Parliament, who refused to entertain the petition. Julekhabhai had sought
equality with Muslim men, requesting court to declare that “dissolution of marriage
under Muslim Marriage Act, 1939, can be invoked equally by either spouse”.
104
Rajeev Dhawan, “The Apex Court and Personal Law” The Hindu, 14 March 1997
105
(2000) AIR SC 1650
106
(1989) AIR CAL 1
107
(1995) AIR KER 252
108
(1997) AIR BOM 349
53
It also requested the court to strike down provisions relating to “talāq, ilia, zihar, lian,
khula etc.”, which allowed extra-judicial divorce in Muslim personal law109.
Mohammed Abdul Rahim Quraishi, the then Secretary of All India Muslim Personal
Law Board said that it needs to be seen that the subjects pertaining to that of marriage
and divorce, infants and minors, wills, intestacy and succession, partition etc. are
enumerated in the concurrent list of 7th Schedule of the Constitution and these being
concurrent subjects both the central and state governments have the power to make
laws. As a result, we find many regional variations affected by the state legislatures in
the Hindu Laws. Bigamy is punishable by law in all communities under the I.P.C
except the Muslims, who are governed by the Sharia law.
The Muslim Personal Law (Sharia) Application Act 1937 was passed by the British
government to ensure that the Muslims were insulated from common law and that only
their personal law would be applicable to them. Bigamous marriages are illegal among
Christians (Act XV of 1872), Parsis (Act II of 1936) and Hindus, Buddhists, Sikhs and
Jains (Act XXV of 1955).
Enactment of a Uniform Civil Code would abolish the Muslim rights to polygamy. In
almost all recent cases where the need for a Uniform Civil Code has been emphasised
women were always found to be at the receiving end of torture in the garb of religious
immunity ultimately causing them to suffer irreparable loss and injuries at all cases.
Apart from the famous Shah Bano (1986) and Sarla Mudgal (1995) cases, there has
been numerous other pleas by Hindu wives whose husbands converted to Islam only in
order to get married again without divorcing the first wife. To conserve the cohesion of
Hindu society, the Hindu laws made allowances for customs and usages. The
imposition of uniformity would have undermined Hindu social cohesion. If matters
relating to family laws and customs fall under the jurisdiction of Parliament and state
legislatures, the country will have a variety of regulations thus leading to unnecessary
and undue advantage to some while depriving many other people who will be left to
their fate to suffer. The State amendments have made many in-roads in the Hindu laws
damaging the uniformity of these laws, affecting many substantive rules as well.
109
Paras Diwan and Peeyushi Diwan,; Law of Marriage and Divorce, 47
54
In a Uniform Civil Code which is the cherished constitutional goal, if we have a single
ground of divorce viz. that the marriage has broken down irretrievably, the scope of any
controversy is ruled out. Where factually marriage has broken down irretrievably, no
useful purpose will be served in finding out the guilt or innocence of the parties and in
such cases law proceeds to cut off the tie110.
Analytical discussion on these issues shows that there should be one single ground of
divorce, viz. irretrievable breakdown of marriage111. Irretrievable breakdown of
marriage and divorce by mutual consent should be made uniformly a ground to dissolve
the marriage of spouses irrespective of their religious faiths. The critical analysis of
different existing grounds of divorce contained under various divorce laws shows more
uniformity and less contrast in them. Therefore, the conceptual analysis of the different
existing ground of divorce paves the way to push up the matter of uniformity in them
legislatively.
In Naveen Kohli v. Neelu Kohli112 the Supreme Court, boldly laid down that while
permitting dissolution of thirty year old mismatch, urged the Government of India to
amend Hindu Marriage Act in order to make Irretrievable break down of marriage a
valid ground for divorce. The court held that irretrievable break down of marriage was
prevalent as a ground for divorce in many other countries and recommended the Union
of India to seriously consider bringing an amendment in Hindu Marriage Act, 1955 to
incorporate irretrievable break down of marriage as a ground for the grant of divorce.
The court ordered to send a copy of the judgment to the Secretary, Ministry of law and
justice, Department of legal affairs, Government of India for taking appropriate steps
and to accommodate such demands that arose before the Court in the instant case. The
express introduction of the principle of irretrievable break which has been in place
already in England will be much more conducive and functional than merely relying on
the implied principle.
110
Shiv Sahai Singh, ; Unification of Divorce Laws in India, 376
111
Ibid
112
(2006) SCC (4) 558
55
Besides, the administration of justice on the basis of clearly codified law is superior to
the adjudication from case to case. For this, Parliament could reintroduce the Marriage
Laws (Amendment) Bill, 1981 (No.23 of 1981), which earlier did not fructify into law
for expressly introducing irretrievable break down of marriage as the singular ground
for divorce, as the bill was allowed to lapse113.
Recently in Ramesh Jangid v. Sunita114, the wife wanted her husband to leave his
parents and live separately. The Court held that the demand of the wife was
unreasonable and as wife was living separately for 13 years and denying physical
relationship, so divorce was granted on the aforesaid grounds. The court observed that
the differences that have grown up between the parties, the distance which has widened
for over a decade cannot be brushed aside lightly. Thus irreparable break down of
marriage is obvious so a divorce in such a case is the only way available to the parties
as well as for the court.
In Prabhakar v. Shanti Bai115, parties were married in 1955 however they have not
stayed together since 1958, and no cohabitation was there since last 49 years. The court
granted the decree of Divorce as the marriage between the parties was irretrievably
broken and it was no use to continue with such a marriage any longer. The Law
Commission of India and the Supreme Court have recommended that the irretrievable
break down of marriage should be made a separate ground of divorce by the legislature.
No useful purpose would be served by keeping alive de jure what is dead de facto. It is
possible that if Parliament does not act on this recommendation the legislature of some
states of India may take the lead, exercising power under entry 5 of the concurrent list
of the 7th Schedule116.
The Law Commission has suggested that immediate action needs to be taken to
introduce an amendment in the Hindu Marriage Act, 1955 and the Special Marriage
Act, 1954 for inclusion of irretrievable breakdown of marriage as another ground for
grant of divorce117.
113
Virender Kumar, “See the Rift, not the Fault” 12, The Tribune, 21 May, 2006
114
(2008) HLR (1) 8 (Raj.)
115
(2008) HLR 250 (Nagpur)
116
Ramesh Chander Nagpal, Modern Hindu Law, 182 (2008)
117
217th Indian Law Commission Report, 30 March 2009
56
For long Christian women too had the law loaded against them. A Christian man could
obtain a divorce on the basis of adultery; a woman had to establish an additional charge
like desertion or cruelty under the Indian Divorce Act 1869 as well. But in 1997,
cruelty, physical and mental torture were made ground enough for a Christian woman to
obtain a divorce, with the Bombay High Court recognizing cruelty and desertion as
independent grounds for the dissolution of a Christian marriage.
Divorce under the Hindu Marriage Act 1955 can be obtained on the grounds of
adultery, cruelty, desertion for two years, conversion in religion, an unsound mind,
suffering from venereal disease or leprosy or if the spouse has renounced the world and
has not been heard from for seven years. Also no resumption of co-habitation for one
year after the decree of judicial separation, no restitution of conjugal rights for one year
after decree for restitution of conjugal rights, or if the husband is guilty of rape, sodomy
or bestiality118.
All major religions thus have their own laws that govern divorces within their own
community, and there are separate regulations under the Special Marriage Act, 1954
regarding divorce in interfaith marriages. Under a common civil code, one law would
govern all divorces for all communities based on religion. One should not forget that
nationhood is symbolized by one Constitution, a single citizenship, one flag and a
common law applicable to all citizens and India’s obligations under international law
and requirements of various international instruments relating to the human rights of
women such as Universal declaration of Human Rights, 1948 and the Convention on
the Elimination of all forms of Discrimination Against Women, 1979 also demand that
even if one rules out Article 44 the Union of India cannot evade its international
obligation to make laws to remove discrimination against women119.
The Article 44 of the Constitution of India requires the state to secure for the citizens of
India a Uniform Civil Code throughout the territory of India. As has been stated above,
India is a unique blend and merger of codified personal laws of Hindus, Christians,
Parsis and to some extent the laws of Muslims. However, there exists no uniform family
law in a single statute which is applicable for all Indians which are universally
acceptable to all religious communities who co-exist in India.
118
B.M Gandhi, Hindu Law 376 (Eastern Book Company,Lucknow,4th edition,2016
119
Jyoti Rattan, “Uniform Civil Code in India: A Binding Obligation Under International And
Domestic Law” 46 JILI 577 (2004)
57
As discussed above, the Supreme Court of India for the first time directed the Indian
Parliament to frame a Uniform Civil Code in 1985 in the case of Mohammad Ahmed
Khan V. Shah Bano Begum120. In this case a penurious Muslim woman claimed
maintenance from her husband under Section 125 of the Code of Criminal Procedure
after her husband pronounced triple talāq.
The Apex Court held that the Muslim woman had a right to get maintenance under
Section 125 of the Code and also held that Article 44 of the Constitution had remained a
dead letter. To undo the above decision, the Muslim Women (Right to Protection on
Divorce) Act, 1986 which curtailed the right of a Muslim Woman for maintenance
under Section 125 of the Court was enacted by the Indian Parliament.
Thereafter, in the case of Sarla Mudgal V. Union of India121, the question which was
raised was whether a Hindu husband married under Hindu law can, by embracing
Islamic religion, solemnize a second marriage. The Supreme Court held that a Hindu
marriage solemnized under Hindu Law can only be dissolved under the Hindu Marriage
Act and conversion to Islam and marrying again would not by itself dissolve the Hindu
marriage.
Further, it was held that a second marriage solemnized after converting to Islam would
be an offence of bigamy under Section 494 of the Indian Penal Code. The Supreme
Court has always put forth the need for Parliament to frame a common civil code which
will help the cause of national integration by removing contradictions based on
ideologies. The Directive Principle of enacting a uniform civil code has been urged by
the Apex Court repeatedly in a number of decisions as a matter of urgency and top
priority to stop the unevenness and often inequalities and immunities that such personal
laws have continued to offer over the years. Unfortunately, in a subsequent decision of
Lily Thomas V. Union of India122, the Apex Court, dealing with the validity of a second
marriage contracted by a Hindu husband after his conversion to Islam, clarified that the
court had not issued any directions for the codification of a common civil code and that
the judges constituting the different benches had only expressed their views in the facts
and the circumstances of those cases. Even the lack of will to do so by the Indian
government can be deciphered from the recent stand stated in the Indian press that the
120
(1985) AIR SC 945
121
(1995) SCC (3) 635
122
(2000) AIR SC 1650
58
Indian government does not intend to bring legislation to ensure a uniform civil code
because it does not want to initiate changes in the personal laws of minority
communities. However, this ought not to deter the efforts of the Supreme Court of India
in issuing mandatory directions to the central government to bring a common civil code
applicable to all communities irrespective of their religion and practices in a secular
India.
Hopefully, the Apex Court may review its findings in some other case and issue
mandatory directions to the central government to bring a common civil code applicable
to all communities irrespective of their religion.
The Preamble of the Indian Constitution resolves to constitute a Secular Democratic

Republic as stated earlier and this means that there is no State religion and that the state
shall not discriminate on the ground of religion. Articles 25 and 26 of the Constitution
of India guarantee the citizens the freedom of religion and freedom to manage religious
affairs. At the same time Article 44 which is not enforceable in a Court of Law states
that the state shall endeavour to secure a uniform civil code in India.
The ingredients of a Uniform Civil Code is indeed a difficult task to determine since the
personal laws of each religion contain separate ingredients, the uniform civil code will
need to strike a balance between protection of fundamental rights and religious
principles of different communities and most importantly not harm the sentiments of the
communities that coexist in our country. Marriage, divorce, succession, inheritance and
maintenance can be matters of a secular nature and law can regulate them. India needs a
codified law which will cover all religions in relation to the personal laws of different
communities.
Critics of the uniform civil code think that the true principles of Muslim law remain
eclipsed by its extensive alleged misreading over the years. It is suggested by Prof.
Tahir Mahmood, an eminent scholar in his article that:
“An Indian Code of Muslim Law based on an eclectic selection of principles

from the various schools of Sharia is the ideal solution to all the contemporary
problems of Muslim Law123.”
123
Muslim Personal Law: Clearing The Cobwebs, The Hindu, July 30, 2006
59
It has been reported that the Supreme Court of India dismissed a public interest
litigation petition challenging the legality of the customs of polygamy, talāq and
divorce practiced by Muslims under the personal laws. The plea for a direction to the
Central Government to make Uniform Marriage Laws for all communities was rejected
on the ground that it is for the Parliament to change or amend the law. Thus, the debate
is endless and the issue has continued to remain unresolved even till the present day.
60
Chapter 5- Data Analysis
5. PUBLIC PERCEPTION ON UCC FOR SECURING

SECULARISM AND GENDER JUSTICE IN INDIA
The question as to whether after 73 years of the Constitution India is ripe enough to
have a uniform set of civil law has been raised yet again. The Uniform Civil Code
(UCC) has always been piped as an effective tool to realise and effect the empowerment
of the Indian women and uplifting their status in the social institutions such as family
and marriage. This paper tries to evaluate the entire dialogue around the UCC, the
arguments on its necessity and the various doubts on its nature, so as to ascertain the
extent to which the question of women gets addressed. It is of the utmost importance to
scrutinise how the judicial and political intelligentsia has been trying to address the
subject of gender parity through the discourse UCC.
THE HUMAN rights of women in India have always been associated with the personal
laws which involve social institutions like marriage and family. Indeed, it is the
personal laws which lay down the legal contours of the status of women in these social
institutions. Unlike the west, India is far from being a homogenous nation-state and is a
home to one of the most diverse and variable melange of a population. It is ethnically
diverse, linguistically diverse, culturally and religiously diverse, these not being water
tight categories either. Thus they mingle up and create a mash up of an extremely
vibrant but difficult to handle populace.
Hence, a Kashmiri Brahmin woman will have different existential realities than a
Sarayupari Brahmin woman. A Brahmin woman in West Bengal will not only have
different social and religious norms than a Bengali low caste woman, but also a
Namboodiri Brahmin in Kerala.
The oppression of patriarchy seems to be a common experience to all these women

from a distance, but when one tries to get into the skin of each and every such woman
we find that what seems similar is actually very different in its form and nature.
61
In such a landscape, a formula of a uniform personal law is introduced and uniformity is

presented as a solution to undo all the repressive evils that have crept inside our existing
personal laws. UCC as envisaged under our Indian Constitution is time and again hailed
to be the miraculous cure for all the social problems faced by the Indian women. The
Indian Supreme Court has been incessant in reminding the legislature the glorious
promise of a uniform civil law which was deferred to the future by the makers of our
Constitution.
Recently, the debate of UCC has yet again gained momentum due to a petition filed
before the Supreme Court by Shayara Bano,2 a 35 year old Muslim woman which calls
to ban the practice of triple talāq and declare it as unconstitutional. The practices of
polygamy and halala have also been brought under the judicial scanner. This has once
again raised the question that whether UCC will be the magic solution in weeding out
such practices which are being considered as oppressive and anti-women not only by
people belonging to other religion but even group of people belonging to the same
religion?
The principle of UCC essentially involves the question of secularism. Secularism is a

principle which needs to be analysed at great length. There are various interpretations of
secularism and it is on the altar of all these interpretations, the UCC is both glorified
and criticised. Some factions of our society consider the UCC anti-secular while some
regard it as the harbinger of communal harmony and secularism. Lastly, the question of
the human rights of Indian women looms large in the background of the UCC. Hence, it
is needed to be understood whether uniformity in personal laws will definitely lead to
the equal status of women in the society or would just remain a communal agenda.
62
5.1. Data Collected
The research methodology used for this dissertation is an Analytical Doctrinal Research
and recent trends by taking help of cases, books, Surveys and Non-Doctrinal Research
with the help of different tools. The Models which will be used in this dissertation are
Explanatory, Practical, Exploratory and Evaluation.
Explanatory: It is conducted in order to help us find the problem that was not studied
in depth before
Practical: It is conducted to solve immediate problems and answer practical Questions
Exploratory: It is conducted for a problem which was not well researched before,
demands priorities, generates operational definitions and provides a better-researched
model. It focuses on explaining the aspects of your study in a detailed manner.
Evaluation: It is used to determine the impact of a social intervention. A social
intervention is an action taken within a social context.
The Tools which will be used in this Research is Questionnaire.
Questionnaire: Close ended Questions are asked to collect the data
This study will focus on, Uniform Civil Code, Gender Justice and Secularism. Relation
between UCC, Gender Justice and Secularism will then be identified in detail. How and
what the respective Laws with regard to them are in place will be studied. What are the
steps taken by the appropriate authorities for effective regulation and its outcome with
regards to the territory of India? How different is the Secularism and Gender Justice
from the other countries than what is being practiced in India?
Questionnaires were given to people and a sample size of about 100 Lawyers /
Advocates were selected to participate in this research. Online questionnaire124 was sent
by Google forms digitally by email and WhatsApp to the participants and their
responses were also collected digitally. The researcher has then evaluated the results of
the 114 responses that were collected by this online questionnaire.
124
https://forms.gle/DNZgtCmFpBm42nS88
63
Sample Questionnaire:
1. Gender
a. Male
b. Female
2. Are you aware of Uniform Civil Code?
a. Yes
b. No
c. Can’t Say
3. Do you know through UCC personal laws are going to be interfered with?
a. Yes
b. No
c. Can’t Say
4. Is UCC going to help in promotion of secularism in society?
a. Yes
b. No
c. Can’t Say
5. Whether UCC will address gender issues?
a. Yes
b. No
c. Can’t Say
6. Why is UCC not being accepted?
a. Interference in Personal Laws
b. Lack of awareness
c. Will cause disturbance of public order
d. Not a critical issue today
7. Should the issues of Secularism and Gender Justice be addressed before
implementing UCC?
a. Strongly disagree
b. Disagree
c. Neutral
d. Agree
e. Strongly agree
64
8. Are UCC, Gender Justice and Secularism inter-connected?

a. Yes
b. No
c. Can’t Say
9. Is there a need to improve Gender Justice in the current scenario?
a. Yes
b. No
c. Can’t Say
10. Secularism in India better than that in European / Western Countries.
a. Yes
b. No
c. Can’t Say
11. Indian Constitution has enough provisions to safeguard Gender Justice and
Secularism.
a. Yes
b. No
c. Can’t Say
12. Indian Judiciary strongly safeguards Secularism and Gender Justice.
a. Strongly disagree
b. Disagree
c. Neutral
d. Agree
e. Strongly agree
13. In the current scenario, Indian Parliament cannot move bill on UCC because:
a. Opposition will stage trouble
b. Religious Leaders will Oppose
c. Law commission unable to draft UCC bill
d. Other important issues to address
e. Sections of the society will revolt
f. Elections are around the corner
65
5.2. Observation and its Interpretation
The idea behind using this questionnaire and asking the same to Lawyers / Advocates is
to current scenario of Gender Justice and Secularism in the society, Constitutional
Provisions mentioned in the Constitution are actually being levelled in the society by
means of Judiciary and to understand the acceptability of implementation of UCC and if
implementing UCC will have a positive impact in improving the Gender Justice and
Secularism in India.
Here are the responses for the questions asked in the questionnaire:
Figure 1
Intention to have this question on diversity was necessary so that female perception can
also be taken care of. Unfortunately, in the sample size selected, there was an
expectation that about 50% participation will be from the feminine gender. However
this came as a limitation to this dissertation as there was participation from only 35.7%
females.
66
Figure 2
Researcher in this dissertation intended to take opinions of only those people who had a
fair and share idea of what distinctively means by Uniform Civil Code, Gender Justice
and Secularism. Hence this question was asked. As expected, all the respondents orated
in affirmation and this encouraged the researcher that the expected outcome was indeed
approachable.
67
Figure 3
Primary intention to have this question was to take a generic perception of the present
sample size of this research, which is actually a mix of many pious beliefs.
Majority of the participants agreed that implementation of Uniform Civil Code will
undeniably impede Personal Laws. Only 7% participants felt that UCC does not
interfere with Personal Laws.
68
Figure 4
It was necessary to ask this question as it in a way understood the acceptability of UCC
in link with Secularism.
What is to be noted here is that in the participants, though they were in an opinion that
there will be an interference with the Personal Laws by UCC, in contradiction, it will
also promote secularism after its implementation.
On an informal verbal communication with the participants, it implied that once UCC is
implemented, all the religions will be on the same plane when it comes to Marriage,
Succession and Heirship, Divorce, Adoption etc.
69
Figure 5
Keeping in mind the earlier question of whether UCC will improve Secularism, this
question also needed to be asked as to take a perception of the sample size if the same
would reflect when it comes to Gender Issues.
Only 50% of the responses agreed that there will be a positive impact on addressing
gender issues. However, there were a few people who discoursed and said that UCC
will not address Gender issues and that these issues are unique and not related to UCC.
70
Figure 6
Why is UCC not being accepted?
60%
50%
50%
40%
28.60%
30%
20%
14.30%
10% 7.10%
0%
Interference in Lack of Will cause Not a critical

Personal Laws awareness disturbance of issue today
public order
Over the years, there has been a major dialogue between eminent speakers, both in
favour and in contradiction of UCC. Mostly the ruling party (BJP) speaks optimistic
about its implementation and the opposition use this to target BJP citing they are more
over interested in interfering with the Muslim Personal Law. Hence this question was
asked.
Accordingly, as anticipated by the researcher, interference of UCC with Personal Laws

got the most responses. Lack of awareness was the next issue, followed by disturbance
of public order and a few responses for UCC not being a critical issue to be looked
upon.
71
Figure 7
Following the last two questions, this question was asked to know if there was a need to
have Secularism and Gender Justice issued addressed before implementing UCC.
Majority of the respondents ‘strongly agreed’ and ‘agreed’ that there was a need to
address these issues. This was again predicted by the researcher and also reflected in the
responses. Overall about 64.3% responses were in affirmative.
72
Figure 8
Following the last question where we have identified if there was a need to have Gender
Justice and Secularism issues resolved before implementing UCC, this is where the
researcher has asked if UCC, Gender Justice and Secularism are interconnected.
As the entire sample size is affiliated with Law background, they were clear in
mentioning that the issues need to be addressed first and then UCC should be practiced.
This response by the sample size proves that they are aware that UCC, Gender Justice
and Secularism are associated.
73
Figure 9
In continuation of Figure 7, there was a need to identify to what extent the sample size
feels the need to have improvement in Gender Justice.
Massive 92.9% respondents felt the need to have improvement in Gender Justice. This
is primarily because the sample size is into practicing law and they have been keen-
sighted these cases time and again in their daily routine. This was also predicted by the
researcher of this dissertation and was also an outcome of the secondary research used
for this dissertation.
74
Figure 10
This question was added in continuation to what the researcher has congregated from
books and articles referred in Chapter 2.2 of this dissertation.
There was equal mixed response to this question as an equal number of 57 responses
agreed and denied that the Secularism in India is actually better than the European /
Western Countries.
A few respondents also mentioned that this was not a suitable question to ask and there
may be a chance for incorrect data interpretation as we in India are a bigger plural
society with a far more diverse culture as paralleled with the European / Western
Countries.
Fact is that population of Delhi State in India is more than the population of Canada
altogether125.
125
https://geographyhost.com/india-vs-canada-india-and-canada-country-comparison/ accessed on 03rd
May 2023
75
Figure 11
It is clearly mentioned in Article 44 of the Indian Constitution that the state needs to
prepare a Uniform Civil Code and this has been published in the DPSP. It was hence
necessary for this research to identify if there were enough parameters in the
Constitution to safeguard Gender Justice and Secularism.
Majority of the responses agreed that there were enough provisions in the Constitution
to safeguard them. 14% disagreed to the fact and on tele-conversation it came out that
though there is mention of Equality, Fraternity and Justice, the same needs to be placed
in practice as well.
76
Figure 12
Indian Judiciary strongly safeguards Secularism and Gender Justice:
60.00%
50%
50.00%
40.00%
30.00%
21.40%
20.00%
14.30%
10.00% 7.10% 7.10%
0.00%
Strongly Disagee Neutral Agree Strongle agree
disagree
In furtherance of the last question which took opinion about the safeguard by the
Constitution, there was a need to ask the same in orientation of Indian Judiciary.
Popular response in this one was in conformity of the Indian Judiciary being apt and
able in safeguarding Secularism and Gender Justice. In the earlier chapters, researcher
has given many examples which supported this accord.
77
Figure 13
In the current scenario, Indian government cannot move bill on UCC because:
35.00%
30.00% 28.60%
25.00%
21.40% 21.40%
20.00%
14.30%
15.00%
10.00% 7.10% 7.10%
5.00%
0.00%
Opposition Religious Law Other Section of Elections
will stage leaders will commission important society will are around
trouble oppose unable draft issues to revolt the corner
UCC bill address
This is the last question in the questionnaire and it was needed to apprehend the actual
reason why UCC is not moved as a bill in the Parliament.
It is evident that we find mixed responses to this question. In order of decreasing

chronology, here are the responses:
 Law Commission unable to draft UCC bill – 28.6%

 Religious leaders will oppose – 21.4%
 Elections are around the corner – 21.4%
 Other important issues to address – 14.3%
 Section of society will revolt – 7.1%
 Opposition will stage trouble – 7.1%
78
5.3. Interface between Law and Reality
Before getting into the controversies of the uniform civil code it is necessary to
understand what causes these controversies by understanding the meaning of uniform
civil code. Uniform Civil code is that part of the law that deals with affairs related to
family of an individual and determines uniformity in laws for all citizens, irrespective
of his religion, tribe or caste. UCC is inscribed in the article 44 of the Indian
constitution that was the article 35 in the draft.
This lies in the part 4 of the Indian constitution and also deals with directive principles
of state policy. And since these are non-judicial rights, they cannot be enforced in the
courts. Now coming to the controversies caused due to uniform civil code, In India the
main cause for communal conflicts among the common people are the personal laws
The Uniform Civil Code is a uniform method or a standardized law which governs
citizens as a uniform law. One problem with an absence of having UCC throughout
India is that it may go against the basic principles of equality that is one of the
fundamental rights of the constitution because by providing personal laws to a certain
section of people we are determining the credibility of the secular ethos in the country.
Having a uniform civil code shall make separation of the state from the religion from
the state meaningful since personal laws shall cease to exist when a uniform civil code
is implemented. Personal laws lead to many communal conflicts that cause harm to the
country for example the demolition of various temples and mosques and it indicates that
India is still not ready for having a uniform civil code and it also goes against the article
25 of the constitution. People who argue against the Uniform Civil Code for things such
as marriage, divorce, inheritance and any such ritual are themselves going against the
article 26(b) of the Indian constitution that states that:
“Subject to public order, morality and health, every religious domination or any
section thereof shall have the rights to manage its own affairs in the matters of
religion”.
79
Since uniform civil code shall be a violation of this article, the judiciary does not take
any interest in implementing a uniform civil code because of the provisions enshrined
under article 25 and article 26 of the Indian constitution, in fact this issue has already
been extensively debated upon in the Supreme court and because of article 25 and 26, it
was not quite successful.
As a matter of fact, it is known that personal laws of communities’ gender injustice are
inbuilt. This is a result of the social and economic conditions under which these have
been evolved and this is one of the Important reasons that why there is a need to
introduce reforms in personal laws or bring about UCC to not only ensure equality
between men and women but also in order to bring about gender justice.
Women go through many difficulties and also a lot of trauma in matters related to
divorce, marriage and inheritance. Some of the examples that can be used to understand
this are the practices of polygamy, desertion and triple divorces. Indian women are only
granted equality in a formal way that too by only providing them with equality in
political rights through the constitution of India. Position of women within their family
is pitiable due to the unequal rights.
Women's rights are ignored within the internal matters of the family. If the personal
laws are followed blindly then women shall forever remain under the control of men
and this is a threat to basic principles of livelihood. A uniform civil code if
implemented shall lay the grounds for women to overcome various social evils that
exist in the society such as the bigamy system and the dowry system which make
women feel inferior and degraded.
80
5.4. Lacunas / Deltas
The key problem lies in the fact that, if the constitution makers had intended to
implement a uniform civil code in India, they should not have made it part of the State
Policy Principles Directive pursuant to Article 44 of the Constitution. The State policy
principles set out in Part IV (Art. 36-51) of the Directive, as the name suggests, are
merely guidelines to the Government.
They do not need to be strictly pursued and are not enforceable by the Court. These are
simply positive obligations for the State that will lead to good governance. The
Preamble of the Indian Constitution states that India is secular, democratic, republic.
This means that there is no State religion at all. A secular state shall not discriminate
against anybody on the basis of religion. Religion is concerned only with the
relationship between humans and God. It means that religion should not intervene with
an individual's life. The secularization process is closely linked to the goal of the
uniform Civil Code as a cause and effect.
In the case of S. R. Bommai v. Union of India126, according to Justice Jeevan Reddy it

was stated that religion is a matter of individual faith and it cannot be mixed up with
secular practices and can be regulated by the government by the enactment of a law
Throughout India, there is a principle of positive secularism as distinct from the theory
of secularism adopted by United States as well as the European States, i.e. there is a
wall of separation between religion and state.
The Preamble to the Constitution of India has decided to create a "Secular" Democratic
Republic. This means that there is no official religion or, in other terms, that the state
does not act on any specific religion and does not discriminate on the grounds of
religion. Article 25 and 26 of the Constitution of India, as enforceable fundamental
rights; ensure freedom of religion and freedom to conduct religious affairs. At the very
same time, Article 44, which is not legally binding in a court, states that the State shall
seek to maintain a uniform civil code in India.
126
(1994) AIR SC 1918
81
The problem with having personal laws for all the religion is that it means having
special provisions in the constitution for one section of religion and as much as it will
bring resented, it will also bring enmity in public towards each other and hence it is
important that uniform civil code bring such laws that create a balance between
protection of religious principles and fundamental rights of various communities
residing in the state. Marriage, maintenance, divorce etc. should be matters of secular
nature and laws must exist to regulate them.
82
Chapter 6- Conclusion
6. CONCLUSION AND RECOMMENDATIONS
6.1. Conclusion
One has to identify what is the moving jurisprudence behind UCC that is it national
integration with one nation-one people motto or is it the eradication of the gender based
injustices engrained in the all personal laws. These two future results of the UCC are
quite distinct from each other. It has been observed that the original dialogue around
UCC was more inclined towards the idea of national integration, with the cause of
gender equality as an ancillary effect. However, today in the contemporary times UCC
has come up as a champion of the gender equality. If so, then the dialogues around
UCC have woefully missed their mark.
It is not that uniformity in laws is undesirable. Extensive cultural diversity is the truth of
India, but absolute heterogeneity in laws is also not desirable. Uniformity very rightly
leads to a constricted scope for arbitrariness and equal protection of law to all the
subjects irrespective of the diverse backgrounds they come from. The clarion call for
UCC in India has always been with the idea of divesting law from all kinds of religious
influences. That law, even the personal laws should be stoic without specific religious
and cultural hurdles creeping in. Religion and culture since a very long time have been
the ultimate explanation to any and every social evil that exists in the society. Sati,
therefore was justified because the religious tenets supported it. One could find a
number of justifications ranging from pure religious fanaticism to scientific rationalism
and sociology. However, in a country where Hindus shared their day to day lives with
other religions where women who need not deliberately die with their husbands existed,
questions were raised that why Hindu women be subjected to such atrocity? In fact
those who raised such questions became the beacon lights for a movement of social
reform such as Raja Ram Mohan Roy, Ishwarchandra Vidyasagar and others.
83
In a heterogeneous society like ours comparisons are normally to be made. These rigid
and compartmentalized personal laws which cannot, in any probability, be influenced
by others might have the tendency to throttle any scope of social reform. Codification
of scattered laws and legal norms, religious edicts, traditions and cultural laws gives a
fixed recognition to rules and eases the enforceability of laws. The rights and duties
which flow out of such laws and rules also get due recognition and traceability. Indeed,
a uniform law with all populace equally and uniformly governed by it is the desired
goal and as Dr. Ambedkar had said the society to inch towards its complete realisation.
However, the taking example of a uniform criminal law as a benchmark for the
goodness of uniformity in personal laws is not correct. Personal laws govern the unique
and peculiar realms of family and marriage which are endemic to each and every
diverse group of people. Unlike the criminal law, personal laws govern the way of life
of the people which can differ from one community to other. And therefore uniformity
in personal laws has to be treated much more delicately.
Two questions need to be addressed which are being completely ignored in the present
din around UCC. Firstly, how can uniformity in personal laws are brought without
disturbing the distinct essence of each and every component of the society. What makes
us believe that practices of one community are backward and unjust? If one does not
address these questions with gravity and depth, then we would commit the same
horrible mistake of the Americans who considered the indigenous population as
savages, needed to be liberated from their customs and rescued by the progressive,
civilised norms of Christianity.
The second question is that whether uniformity has been able to eradicate gender
inequalities which diminish the status of women in our society? This question is
interlinked with the previous question. The definitions of inequality may differ from
community to community. It is necessary to determine the layers of gender injustices
and inequalities that work separately in one society than in the others. The personal law
of one society, without a doubt are dotted with many aspects which are contradictory to
the sense of gender equality existing in that society.
84
The first step therefore is to eradicate those unjust practices which are endemic to that
specific society. Instead of hurriedly creating a uniform definition of injustice and
inequality, which is the dominant point of view, it is necessary that all these societies
first recognise the definitions of inequality and injustice within their peculiar sphere of
life. Otherwise, what is happening is that these societies become defensive against the
demands of uniformity and injustices within their communities are rendered invisible.
This positive side of the debate on UCC time and again reminds the people to tend to
the diseases in their personal law system and adjust them to the contemporary times, by
taking inspirations from another community which might be more progressive in some
aspect. It must never be forgotten that all this is a slow process and any undue haste
would only result in failure rather than the desired outcome.
6.2. Inference of this research work
To find out if implementing a Uniform Civil Code in India is going to be beneficial for
the country or not we must first understand the merits and demerits of having a uniform
civil code in the country and for that we need to analyse what laws will be affected by
implementing a Uniform Civil Code. Implementing a Uniform Civil Code will only
affect the personal laws that are based on religion that means the laws dealing with
divorce, marriage, adoption, inheritance etc.
Having a Uniform Civil Code throughout India will surely promote the principles of
justice because many of the personal laws that are allowed are not justified and they
result in unequal treatment of people and hence violating the core principles of the
Indian constitution as it was seen in Shah Bano’s case of triple talāq as the law of triple
talāq was oppressing the Muslim women and was clearly a violation of their
fundamental rights while on the other side having a uniform civil code also promotes
the model of secularism that India has adopted that is called as positive secularism
which is different from the model of secularism in the western countries so having a
Uniform civil code may violate the religious rights of the people too that have been
granted to them by the constitution of India by article44 under directive principles of
state policy
85
Having a uniform civil code in a country is not just a matter of justice but it is also a
matter of how a country accommodates the diverse population residing within it. In
India the freedom to follows your religion also exists just like any other rights such as
right to equality and non-discrimination. India has taken a route to accommodate these
diverse sections of people by letting them practice their religious traditions by
provisions of personal laws that on the other side results in inequality.
But the question is that do we have a better way to negotiate this? One way as explained
in the research paper is adopting the western model of secularism in which the nation
does not intervene with the religion and no provisions exist for any kind of personal
laws but we also must understand that the conditions in India and in most of the
Western countries are not similar and hence it cannot be implemented because even
though the western countries claim to be secular, show biasness towards Christianity
and the countries in the middle east show biasness towards Islam. Implementing a
uniform civil code may also risk in pushing people in conditions they may not want to
live and this may cause a disturbance among the public.
It is also very clear that a Uniform Civil Code does not violate the article 25 and article
26 on the constitution of India. The Uniform Civil Code should rather be introduced as
a new law and not just be introduced as a blend of personal laws because if we blend
personal laws then there shall be scope of arbitrariness to arise; for example the
parliament should bring a new law that is also like the special marriage act of 1954 that
will not favour or show any bias towards any religion.
The people need to understand that the concept of laws and the concept of religion is
different because the constitution of India allows the people to follow their religion that
will also continue eve after the enforcement of Uniform Civil Code as the Uniform
Civil Code is not going to take away anyone's rights to practice to profess anyone's
religion and it is high time and people in India need to start viewing law and religion as
different concepts and having a Uniform Civil Code will focus on equal empowerment
of people of all sections and hence it will be beneficial for the country and also will not
violate the secular nature of the constitution and hence we can also say that the
hypothesis taken is proved to be correct because having a Uniform Civil Code is indeed
need of the hour.
86
6.3. Scope for further research
In view of the above discussion, it is submitted that enacting a Uniform Civil Code by
the Parliament of India should not be an imposing endeavour on various religious
communities in India. In case it is enacted, it should be enacted in high consultation
with and opinion sought from all corners of society including religious gurus, legal
experts, NGOs, social activists and politicians from every community so that a
harmonious environment is created to promote welfare of members of every community
along with noble concept of national integrity.
Hence, scope for further research can be a detailed ‘Feasibility analysis of

implementation of Uniform Civil Code in India’
87
Chapter 7 - Bibliography
7. BIBLIOGRAPHY
7.1 Books, Journals and Articles referred

1. Merriam-Webster Online Dictionary, April 2023
2. Subhan, Jelis, Concept of Secularism (March 16, 2016) available at SSRN:
3. Holyoake, G.J. (1896). The Origin and Nature of Secularism, London: Watts
and Co. p.51
4. Abdel Wahab El Messeri. Episode 21: Ibn Rushd, Everything you wanted to
know about Islam but was afraid to Ask, PhilosophiaIslamica
5. Audi Robert, The Separation of Church and State and the Obligations of
Citizenship Philosophy and Public Affairs, volume 18, issue 3 Posted: 1989
6. The Portable Thomas Jefferson, Viking, New York, NY, 1975
7. International Federation of Red Cross and Red Crescent Societies, 2003
8. Constitution of India, J. N. Pandey
9. Aristotle, Nichomachean Ethics, Transt H. Rackham, Edn. 195, BKV.11 7
10. Banerjee, Anil Chandra (1984). English Law in India. Abhinav Publications.
p. 134.
11. Sarkar, Sumit; Sarkar, Tanika (2008). Women and Social Reform in Modern
India: A Reader
12. Lawrence, Bruce B; Karim, Aisha (2007). On Violence: A Reader
13. F. Agnes, “Hindu Men Monogamy and Uniform Civil Code” (50) Economic
and Political
14. Rajeev Dhawan, “The Apex Court and Personal Law” The Hindu, 14 March
1997
15. Paras Diwan and Peeyushi Diwan,; Law of Marriage and Divorce, 47
16. Shiv Sahai Singh, ; Unification of Divorce Laws in India, 376
17. Virender Kumar, “See the Rift, not the Fault” 12, The Tribune, 21 May, 2006
18. Ramesh Chander Nagpal, Modern Hindu Law, 182 (2008)
19. 217th Indian Law Commission Report, 30 March 2009
20. B.M Gandhi, Hindu Law 376 (Eastern Book Company,Lucknow,4th
edition,2016
88
21. Jyoti Rattan, “Uniform Civil Code in India: A Binding Obligation Under
International And Domestic Law" 46 JILI 577 (2004)
22. Muslim Personal Law: Clearing The Cobwebs, The Hindu, July 30, 2006
23. Ronald Dworkin, A Matter of Principle, p. 104-118 Harvard University Press,
1985.
24. John Rawls, A Theory of Justice, Harvard University Press, 1971.
7.2 Websites Referred

1. https://ssrn.com/abstract=3517967 last visited (April 14, 2023)
2. https://www.iep.utm.edu/justwest/
3. https://shodhganga.inflibnet.ac.in/bitstream/10603/67805/6/06_chapter%202.pdf
4. https://www.cisl.cam.ac.uk/resources/publication-pdfs/the-multiple-meanings-
of-justice-in-the-context-of.pdf
5. https://fernwoodpublishing.ca/files/pursuingjustice.pdf
6. https://www.cisl.cam.ac.uk/resources/publication-pdfs/the-multiple-meanings-
of-justice-in-the-context-of.pdf
7. https://plato.stanford.edu/entries/justice/#JustMappConc
8. https://www.mightylaws.in/2035/uniform-civil-code-india-meaning-prospects.
9. https://www.lawteacher.net/free-law-essays/civil-law/uniform-civil-code.php.
10. https://economictimes.indiatimes.com/cms.dll/html/uncomp/articleshow?msid=
98057. Accessed
11. https://www.lawteacher.net/free-law-essays/civil-law/uniform-civil-code.php.
12. https://www.newadvent.org (Secularism, Catholic Encyclopaedia)
89
7.3 Statutes Referred

1. Code of Criminal Procedure, 1973
2. Dissolution of Muslim Marriages Act, 1939
3. Divorce Act, 1869
4. Rules, 1985
5. Dowry Prohibition Act, 1961
6. Foreign Marriage Rules, 1970
7. Guardians and Wards Act, 1890
8. Hindu Adoptions and Maintenance Act, 1956
9. Hindu Marriage Act, 1955
10. Hindu Minority and Guardianship Act, 1956
11. Hindu Succession (Amendment) Act, 2005
12. Hindu Succession Act, 1956
13. Hindu Widows' Remarriage Act, 1856
14. Indian and Colonial Divorce Jurisdiction Act, 1940
15. Indian Christian Marriage Act, 1872
16. Indian Divorce (Amendment) Act, 2001
17. Indian Penal Code, 1860
18. Indian Succession (Amendment) Act, 2002
19. Indian Succession Act, 1925
20. Marriage Laws (Amendment)Act, 2001
21. Marriages Validation Act, 1892
22. Married Women's Property Act, 1874
23. Maternity Benefits Act, 1961
24. Muslim Personal Law (Sharia) Application Act, 1937
25. Muslim Women (Protection of Rights on Divorce) Act, 1986
26. Muslim Women (Protection Of Rights On Divorce) Rules, 1986
27. Muslim Women (Protection of Rights on Marriage) Act, 2019
28. Parsi Marriage and Divorce Act, 1936
29. Personal Laws (Amendment) Act, 2010
30. Personal Laws Amendment Bill, 2018
31. Special Marriage Act, 1954
32. The Constitution of India, 1950
90
Chapter 7- Bibliography
7.4 Cases Referred

Ahmadabad Women’s Action Group (AWAG) v. Union
(1997) AIR SC 3614
of India
Air India v. Nargesh Mirza (1982) SCR (1) 438
Ammini E.J. v. Union of India (1995) AIR KER 252
Annie Nagraja and Ors v. Union of India (2015) SCC Online 11804
Anuj Garg v. Hotel Association of India (2008) SCC (3) 1
Apparel Export Promotion Council v. A. K. Chopra (1999) AIR SC 625
Associate Banks Officer’s Association v. State Bank of
(1998) AIR SC 32
India
Bodhisathwa Gautam v. Subhra Chakraborty (1996) SCC (1) 490
C .M. Mudaliar vs. Idol of Sri S. Swaminanthaswami
(1996) SCC (8) 525
Thirukoil
C. B. Muthamma v. Union Of India & Ors (1980) SCR (1) 668
Chairman, Railway Board v. Chandrima Das (2000) SCC (2) 465
Charu Khurana and Others v. Union of India (2015) SCC (1) 192
Delhi Domestic Working Women’s Forum v. Union of
(1995) SCC (1) 14
India
Delhi Domestic Working Women's Forum v. Union of
(1995) SCC (1) 14
India
Dr. Noorjehan Safia Niaz v. Haji Ali Dargah Trust (2016) 5 AIR Bom R 660.
Gaurav Jain v. Union of India (1997) SCC (8) 114
Gita Hariharan v. Reserve Bank of India (1999) SCC (2) 228
Govt. of A.P. v. P. B. Vijayakumar (1995) AIR SC 1648
Hindu Religious Endowments V. Sri Lakshmindra
(1954) AIR 282
Thirtha Swamiar
Independent Thought v. Union of India (2017) SCC (10) 800
SC, 28/09/2018
Kerala
(2019) SCC (11) 1.
Kerala
Joseph Shine v. Union of India (2019) SCC (3) 39.
Lillu @ Rajesh and Anr v. State of Haryana (2013) SCC (14) 643
Lily Thomas etc. v. Union of India and others (2000) AIR SC 1650
Madhu Kishwar v. State of Bihar (1996) SCC (5) 125
Mary Roy v. State of Kerala (1986) AIR KER 1011
91
Chapter 7- Bibliography
Ministry of Defence v. Babita Puniya & Ors SC, CA 9367-9369/2011

Mohd Ahmed Khan vs. Shah Bano Begum (1985) AIR SC 945
Naveen Kohli v. Neelu Kohli (2006) SCC (4) 558
Neera Mathur v. L.I.C (1992) SCC (1) 286
Prabhakar v. Shanti Bai (2008) HLR 250 (Nagpur)
Pragati Verghese v. Cyrill George Verghese (1997) AIR BOM 349
Pratap Mishra v. State of Orrisa (1977) AIR SC 1307
Pratibha Ranu v. Suraj Kumar (1985) SCR (3) 191
Rajesh Kumar Gupta v. State of Uttar Pradesh (2005) SCC (5) 172
Raju v. State of Karnataka (1994) AIR SC 222
Ramesh Jangid v. Sunita (2008) HLR (1) 8 (Raj.)
Ratilal Panchand v. State of Bombay (1954) AIR SC 388
Revathi v. Union of India (1988) AIR SC 835
S.R. Bommai v. Union of India (1994) AIR SC 1918
Sarla Mudgal v. Union of India (1995) SCC (3) 635
Shafin Jahan v. Asokan K.M. (2018) SCC (16) 368.
Shayara Bano v. Union of India (2017) SCC (9) 1
Soumithri Vishnu v. Union of India (1985) SCC SUPP 137
State of Maharashtra v. Madhukar Narayan Mardikar (1991) SCC (1) 57
State of Punjab v. Gurmit Singh (1996) AIR SC 1393
Swapana Ghosh v. Sadananda Ghosh (1989) AIR CAL 1
Tukaram and Anr v. State of Maharashtra (1979) SCC (2) 143
Union of India v. K .P. Prabhakaran (1997) SCC (11) 638
Venkataramana Devaru v. State of Mysore (1958) AIR 255
Vishaka and others v. State of Rajasthan (1997) SCC (6) 241
Wallace v. Jaffree (1985) 472 U.S. 38
92

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DR.

BABASAHEB AMBEDKAR MARATHWADA

Uniform Civil Code Vis-à-vis Secularism and Gender

UNDER THE GUIDANCE OF

A DISSERTATION SUBMITTED TO DR. BABASAHEB

I am deeply indebted to Dr. Sadhana P. Pande, Professor and Head of Department of PG

Date: 06 MAY 2023

Date: 06 MAY 2023

LIST OF CASES ....................................................................................................................... v

LIST OF ABBREVIATIONS ................................................................................................... ix

1.1 Statement of Research Problem ................................................................................. 1

1.2 Importance of the Research ....................................................................................... 2

1.3 Aims and Objectives of the Present Research ........................................................... 4

1.4 Research Questions .................................................................................................... 4

1.5 Hypothesis ................................................................................................................. 4

1.6 Research Methodology Adopted for Collecting the Data .......................................... 5

1.7 Scope of Research ...................................................................................................... 5

1.8 Scheme of Dissertation .............................................................................................. 6

2. CONCEPT OF SECULARISM IN SOME SELECT COUNTRIES WITH SPECIAL

2.1 Secularism: Meaning and Concept ........................................................................ 7

2.3 Concept of Secularism: The Indian Perspective .................................................. 16

2.4 Secularism under Indian Laws: A Discourse ...................................................... 18

3. GENDER JUSTICE IN INDIA: A CRITICAL STUDY ................................................. 21

3.1 ‘Gender’ and ‘Justice’: Meaning and Concept ........................................................ 21

3.2 Gender Discrimination versus Gender Justice in India ........................................... 25

3.3 Gender Justice and Laws in India: A Retrospect ..................................................... 31

3.4 Gender Justice and the Indian Judiciary .................................................................. 33

4. UNIFORM CIVIL CODE IN FURTHERANCE OF SECULARISM AND GENDER

4.1 UCC: Meaning and Concept .................................................................................... 43

4.2 Historical background of UCC ................................................................................ 44

4.3 Indian Constitution and UCC .................................................................................. 46

4.4 UCC and Secularism in India .................................................................................. 49

4.5 UCC and Gender Justice in India ............................................................................ 50

5. PUBLIC PERCEPTION ON UCC FOR SECURING SECULARISM AND GENDER

5.1. Data Collected ..................................................................................................... 63

5.2. Observation and its Interpretation ....................................................................... 66

5.3. Interface between Law and Reality ..................................................................... 79

5.4. Lacunas / Deltas .................................................................................................. 81

6. CONCLUSION AND RECOMMENDATIONS ............................................................. 83

6.1. Conclusion ........................................................................................................... 83

6.2. Inference of this research work ........................................................................... 85

6.3. Scope for further research ................................................................................... 87

7.1 Books, Journals and Articles referred ...................................................................... 88

7.2 Websites Referred .................................................................................................... 89

7.3 Statutes Referred ...................................................................................................... 90

7.4 Cases Referred ......................................................................................................... 91

Ahmadabad Women’s Action Group (AWAG) v.

Air India v. Nargesh Mirza (1982) SCR (1) 438

Ammini E.J. v. Union of India (1995) AIR KER 252

Anuj Garg v. Hotel Association of India (2008) SCC (3) 1

Apparel Export Promotion Council v. A. K. Chopra (1999) AIR SC 625

Associate Banks Officer’s Association v. State Bank

Bodhisathwa Gautam v. Subhra Chakraborty (1996) SCC (1) 490

C .M. Mudaliar vs. Idol of Sri S. Swaminanthaswami

C. B. Muthamma v. Union Of India & Ors (1980) SCR (1) 668

Chairman, Railway Board v. Chandrima Das (2000) SCC (2) 465

Delhi Domestic Working Women’s Forum v. Union of

Gaurav Jain v. Union of India (1997) SCC (8) 114

Gita Hariharan v. Reserve Bank of India (1999) SCC (2) 228

Govt. of A.P. v. P. B. Vijayakumar (1995) AIR SC 1648

Hindu Religious Endowments v. Sri Lakshmindra

Independent Thought v. Union of India (2017) SCC (10) 800

Indian Young Lawyers Association v. The State of

Joseph Shine v. Union of India (2019) SCC (3) 39.