More SECULARISM

In a recent ruling, the Supreme Court of India has emphatically underscored the significance
of saptapadi, a sacred Hindu marriage ritual enshrined in Section 7 of the Hindu Marriage
Act. The Court’s unwavering stance leaves no room for doubt: adherence to traditional rites
like saptapadi is indispensable for validating a marriage, regardless of the presence of a
marriage certificate. However, amid the legal clarity, a contentious debate looms large: Will
the proposed Uniform Civil Code (UCC) — also 2known as ‘One Nation, One Law’ —
uphold the sanctity of such age-old and celebrated customs, or risk eroding them in the name
of secularism and religious equality? While the UCC advocates for secular principles, its
potential oversight of India’s rich shades of cultural and religious diversity raises significant
concerns. In India, pluralism is not just a concept; it is a deeply ingrained way of life that
predates the introduction of secularism into the Constitution. While secularism champions
“religious neutrality,” India’s pluralistic nature celebrates “religious coexistence and sharing”
— a reality that cannot be overlooked.

Having said that, the observation by the Kerala High Court in The Trustee vs State of Kerala
(2020) rings true: “In a pluralist society, people enter a social contract to live together equally
without allowing dominance of any of the constituents over others. Secularism as envisaged
in our Constitution epitomizes the shared culture of the past .” This assertion underscores the
symbiotic relationship between secularism and Indian pluralism. Secularism, in its true
essence, not only upholds religious equality but also nurtures the ethos of pluralism that has
long defined India’s social fabric.

In the discourse surrounding religious and gender equality, the UCC emerges as a significant
focal point, particularly concerning issues like polygamy in Islam and the issues of
inheritance in Sharia law. However, amidst this pursuit of equality, it is essential to scrutinize
whether the UCC can effectively accommodate sacred customs like saptapadi and other
religious freedoms as guaranteed under Article 25 of the Constitution. Proponents of the UCC
argue that religious freedom must align with principles of public morality and order. While
acknowledging this standpoint, it is crucial to consider whether concerns addressed by the
UCC can be remedied through other fundamental rights enshrined in the Constitution, such as
Article 14 and Article 15, which prohibit discrimination based on religion. Thus, invoking the
doctrine of severability under Article 13, one might argue that any law contradicting Article
14, 15, and/or Article 25 is inherently unconstitutional, regardless of its religious
implications, whether pertaining to polygamy or other forms of religious discrimination.

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Therefore, the question remains: is there actually a need to advocate for a Uniform Civil
Code (UCC) when existing constitutional mechanisms have proven effective in striking down
discriminatory laws based on religion? Cases like the Supreme Court’s landmark decision to
invalidate triple talaq and uphold the right to maintenance for Muslim women under Section
125 of the Criminal Procedure Code demonstrate the potency of legal avenues within the
current framework.
In understanding this, it is important to consider the 1995 judgment of the Supreme Court in
Shri A.S. Narayana Deekshitulu vs State Of Andhra Pradesh & Ors , wherein the court
emphasized the delicate balance required in interpreting Article 25 of the Constitution. It
underscored the distinction between religious customs essential and integral to a religion and
those that are not, highlighting the state’s role in regulating or controlling practices in the
interest of the community. This does not necessarily advocate for a uniform law but rather
suggests that practices not necessitated and discriminatory against public morality can be
regulated either through judicial interpretation or legislative amendment.

Furthermore, the court delineated between secularism and secularization, where

secularization involves the decline of religious activities, beliefs, and institutional
restructuring, while secularism is a political ideology that does not endorse any religion as the
basis of state action. However, the Constitution of India seeks to synthesize religion and
secularism, secularizing practices that are not essential or integral to religion. For example,
take section 494 of the Indian Penal Code, which penalizes polygamy with an exception for
Muslim men. This discriminatory practice can be denounced through a constitutional
interpretation under Articles 14, 15, and 25, or through a legal amendment by making this
exception also a punishable crime under section 494 of the Penal Code.

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In the case of Sarla Mudgal v. Union of India (1995), the Court fervently advocated for the
implementation of a UCC to promote religious equality and justice. Amidst the attention
given to the Sarla Mudgal case, the 1990 case of Pannalal Bansilal Pitti & Ors. Etc v. State of
Andhra Pradesh & Anr . offers valuable insights often overlooked. The court acknowledged
the complexities of enacting a uniform law applicable to all religious institutions,
emphasizing India's pluralistic society and the need for gradual, progressive change. It
cautioned against hastily imposing uniformity, recognizing the potential adverse effects on
national unity and integrity. Instead, the court advocated for a methodical approach to
legislative reform, addressing acute issues incrementally. This perspective underscores the
nuanced considerations essential for fostering unity while respecting religious diversity
within India’s democratic framework. The court’s remark, “It would, therefore, be
inexpedient and incorrect to think that all laws have to be made uniformly applicable to all
people in one go. The mischief or defect which is most acute can be remedied by the process
of law at stages,” remains pertinent today, especially in the context of the proposed agenda of
‘One Nation and One Law.’

To this, both the judiciary and the legislature have demonstrated commendable resolve in
addressing religious disparities within specific religious laws. However, the quest for true
equality demands a holistic approach. While the Uniform Civil Code (UCC) may contribute
to secularism, there is a looming risk of it eroding the invaluable virtues of pluralism in India.
This concern is underscored by the Supreme Court’s recent stance and the acknowledgment
of the vital significance of customs like saptapadi, affirming the necessity to safeguard
India’s pluralistic essence. Hence, religious sacraments and customs hold equal importance to
our societal fabric as laws, demanding a meticulous reassessment of the UCC’s impact on
India’s legal framework.
In conclusion, while the pursuit of equality is noble, it must not come at the cost of gnawing
at the diverse Indian culture, tradition and religious ethnicity. Any legal reform, including the
UCC, must strike a delicate balance between promoting secular principles and preserving the
pluralism that defines India. It is imperative to heed the lessons from both the Sarla Mudgal
and Pannalal Bansilal Pitti cases, advocating for gradual, inclusive reforms that uphold the
spirit of unity in diversity. Let us remember that equality must not eclipse the vibrant hues of
Indian pluralism.

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