Uniform civil code vs.

Right to Religion

INTRODUCTION India is a land of diverse religions. Hindus, Buddhists, Jains, Christians, Muslims, Parsees, and Sikhs form the nation. Unity in diversity is the core feature of the Indian nation. Each community has its own laws governing marriage and divorce, infants and minors, adoption, wills, intestacy, and succession. These personal laws go with an individual across the states of India where they are part of the law of the land, and the individual is entitled to have that individual's own personal law applied and not the law which would be applied in the local territory. Under the Indian Constitution, The state has distanced itself from religion. In 1976, the word "secular" was added to the preamble of the Indian Constitution to emphasize that no particular religion in the state will receive any state patronage whatsoever and no citizen in the state will have any preferential treatment or will be discriminated against simply on the ground that he or she professes a particular form of religion. In other words, in the affairs of the state the professing of any particular religion will not be taken into consideration.

But the Constitution itself gives protection to the different religions and religious groups by including religious rights as fundamental rights.

Under Article 25 of the Constitution, all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality, and health. Article 26 gives to every religious denomination a fundamental right to manage its own affairs in matters of religion. This cannot be abrogated in any way. Article 29 gives the absolute and unqualified right to minorities to conserve their distinct language, script, and culture. Article 30 gives the fundamental right to all minorities, whether based on religion or language, to establish and administer educational institutions of their choice, but the religious denomination's right to manage its own affairs is restricted to "matters of religion" which are "subject to public order, morality and health." The only rights that are absolute and unfettered are the right to freedom of conscience under Article 25 and the right of minorities to conserve their distinct language, script, and culture under Article 29.

Under the Constitution religion is not equated with freedom of conscience, and the freedom of religion (defined as embracing the propagation, practice, and public expression of it) is not an absolute one and is subject to regulation by the state. In the context of the Indian Constitution, religion has been defined as having "its basis in a system of

beliefs and directives, which are regarded by

those who profess that religion to be conducive to their spiritual well being."
In a number of cases the Supreme Court has also held that religion was not merely a matter of faith and belief, but also included rituals, ceremonies, and religious practices according to the tenets of a religion. Courts are called on to determine not only whether a practice of a religion is an essential part of the religion, but also to scrutinize governmental restrictions on the practice and propagation of religion to determine whether the restrictions pass the test of public order, morality, and health. If not, they are not to be upheld. India stands for a secular state The constitution of India stands for a secular state. The state has no official religion. Secularism pervades its provisions, which give full opportunity to all persons to profess, practice and propagate the religion of their choice.

The constitution not only guarantees a person's freedom of religion and conscience, but also ensures freedom for one who has no religion, and it scrupulously restrains the state from making any discrimination on grounds of religion.

A single citizenship is assured to all persons irrespective of their religion.

Secularism

Secularism according to Dr. Radhakrishnan, former President of India is as follows:

" When India is said to be a secular state, it does not mean that we reject the reality of an unseen spirit or the relevance of religion to life or to exalt irreligion. It does not mean that secularism itself becomes a positive religion or that the state assumes divine prerogatives. We hold that not one religion should be given preferential status. This view of religious impartiality, or comprehension and forebearance, has a prophetic role to play within the National and International life".
Components of Secularism

1.

Equality as incorporated in Article 14.

2. Prohibition against discrimination on the grounds of religion, caste etc; as incorporated under Article 15 and 16. 3. Freedom of speech and expression and all other important freedoms of all the citizens are conferred under Articles 19 and 21. 4. Right to practice religion is conferred under Articles 25 to 28. 5. Fundamental duty of the state to enact uniform civil code treating all the citizens as equal, is imposed by Article 44.

According to D.D.Basu

"He described the expression "secular" as vague.he further stated that it would be a correct summary of the provisions of articles 25-30 to say that the expression "Republic" as qualified by the expression "secular" means a republic in which there is equal respect for all the religions".
S.R.Bommai vs. Union Of India;

Secularism is the basic feature of the constitution.

Article 25:

Freedom of conscience and free profession, practice and propogation of religion-------(1) subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propogate religion. (2) Nothing in this article shall effect the operation of any existing law or prevent the state from making any law--------

a. regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; b. providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Article 25(1)
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Guarantees to every person, and not merely to the citizens of India, the freedom of conscience and the right freely to profess, practice and propogate religion.

The right is subject in every case to public order, health and morality and other provisions of Part III.

Freedom of conscience connotes a person's right to entertain beliefs and doctrines concerning matters, which are regarded by him to be conducive to his spiritual well being.

The right is not only to entertain such religious beliefs as may be approved by his judgment or conscience but also to exhibit

his sentiments in overt acts as are enjoined by his religion. S.P.Mittal vs. Union of India; The Majority in this case taking a very restricted view of religion held that the teachings of Sri Aurobindo constituted a philosophy and not religion even if their followers claimed them to be their religion. Chinnappa Reddy, J;

In a dissenting opinion said " the question is not whether Sri Aurobindo refused to claim or denied that he was founding a new religion or a new school of religious thought but whether his disciples and community thought so because religion is a matter of belief and doctorine, concerning the human spirit, expressed overtly in the form of ritual and worship and since
Aurobindo's disciples took Aurobindo's teachings in that spirit the teachings constituted a distinct religion. Uniform civil Code for the citizens Article 44 talks about a Uniform civil Code for the citizens---------

The state shall endeavor to secure for the citizens a uniform civil code throughout the territory of India
On the one hand we have Article 25, which gives the liberty to all to profess and propagate their religion. The state will not glorify any particular religion.

On the other hand Article- 44 though a directive principle but fundamental in the governance of the country talks of a uniform civil code which can infringe the freedom of religion as guaranteed under Article 25 and it can act tyrannical to the minorities. The state is trying to play a dual role here. At one point of time it says that the state will not propogate any partiular religion and in the second breath it is amassing the role of religion itself. The state is indulging itself into a sabotage to repress and suppress the minority right and religion. This is what was done in Mohd Ahmed Khan vs. Shah Bano Begum whereby Chief Justice Chandrachud echoed his misapprehension about Islam. He said that the fatal point in Islam is

the degradation of women. And to make things worse he declared that the actual and final solution of the problem he was tackling lay in the immediate enactment of a uniform civil code.
If a civil code means total abolition of the Islamic personal law and imposition on unwilling Muslims of a wholly un-Islamic legal culture the Muslims cannot but forcefully resist such a socio-cultural upheaval. The fact that a uniform civil code is being demanded by individuals and organizations

known for their prejudices against Muslims and other minorities has fully exposed the clandestine objects behind the advocacy for such a code and thus caused a grave and irreparable damage to its cause. In a multi dimensional country such as ours just as the mythology of the majority community cannot be accepted by the minorities as "national history", the personal law of the majority, or even a law imported from the west and made theoretically applicable to it, cannot be imposed on the minorities as the family law of India.

Where does the solution lie.

Muslims have to put their house in order by abandoning all their un-islamic anti women practices. True essence of Holy Quaran has to be codified for the benefit of both the Muslims and NonMuslims otherwise an unwanted Uniform civil code will be imposed on us.