I. Introduction

The JJ Act 2000[footnoteRef:1] is a secular law enabling any person, irrespective of the religion he professes, to take a child in adoption. It is akin to the Special Marriage Act 1954[footnoteRef:2], which enables any person living in India to get married under that Act, irrespective of the religion he follows. Personal beliefs and faiths, though must be honoured, cannot dictate the operation of the provisions of an enabling statute.[footnoteRef:3] [1: Juvenile Justice (Care and Protection of Children) Act, 2000 (Act 56 of 2000).] [2: Hereinafter SMA.] [3: Tahir Mehmood, Still a Question Mark, The Indian Express, Feb. 25, 2014. ]

The above observation of Supreme Court in the recent case of Shabnam Hashmi v. Union of India[footnoteRef:4] (hereinafter Shabnam Hashmi) is being regarded as a pivotal step in Indias struggle for Uniform Civil Code (hereinafter UCC). The acrimonious debate over the panacea of UCC versus religious personal laws (hereinafter RPLs) has continued for decades. In this context, the judgment has renewed the debate pertaining to reconciliation of inherently incongruous RPLs with Hindu fundamentalists outcrying for uniformity of laws where India refuses to confront this issue under the garb of its commitment to respect distinct religious beliefs and practices. [4: 2014 (2) SCALE 529. ]

Before embarking upon the desirability of UCC, it is pertinent to analyze religious minority rights which rest on the proposition of group identity who seek preferential treatment on the grounds of language, race, religion, etc. Such rights ensure assimilation and affirmation of culturally diverse values of all citizens. In a multicultural society like India, this is illustrated by following non-interventionist policies in the realm of personal laws to accommodate religious minorities such as Muslims, Christians, Parsis, Jews, etc. Theoretically, embracement of such multicultural principles in the Constitution of India (hereinafter Indian Constitution) should have facilitated the aspirations of unity and integrity set forth in the Preamble but in practice such objective remains highly misplaced due to presence of factors like poverty, illiteracy, orthodox traditions and more importantly, religious elites unwillingness to forgo its privileges. This scenario exacerbates when in case of any conflict or disjuncture, the government fails to uphold public formal equality and rather acquiesces to the explicitly discriminatory practices prevalent in domain of personal law (especially, in Muslim personal laws). The state justifies its stance by arguing that RPLs are part of protection of minority rights and the initiative for change must come from within the religious community. The contentions forwarded by the advocates of UCC at this juncture is notable, alleging that the government has been unable to anticipate that these communities are attempting to smuggle religion into secular laws under the garb of religious personal laws . They further allege that these communities strategies involve Trojan horses[footnoteRef:5] which might obliterate the secular constitutional values[footnoteRef:6]. [5: Something or someone intended to defeat or subvert from within; Elizabeth Webber, Mike Feinsilber (ed.), Merriam-Webster's Dictionary of Allusions, (Merriam-Webster, 1999). ] [6: Andras Sajo, Preliminaries to a Concept of Constitutional Secularism, 6 Int'l J. Const. L. 605 (2008). ]

Indeed, the judiciary is acutely conscious of such strategies and in several cases has upheld constitutional guarantees of equality and non-discrimination in conformity with the international human rights norms. However, such principles are seldom extended to the private sphere of RPLs particularly, in matters questioning the constitutionality of Muslim personal laws.[footnoteRef:7] Such approach by the state and judiciary has led to an explicit subjugation of various classes such as women within these communities. [7: Vrinda Narain, Muslim Womens Equality in India: Applying a Human Rights Framework, 35HRQ 91 (2013). ]

This essay seeks to examine the viability of UCC in contemporaneous society where once these religious minority rights are granted, they become extremely difficult to withdraw and even if actions are taken for the sake of promoting equal treatment for all, they are met with suspicion and mistrust. [footnoteRef:8] Also the proponents of UCC while contending such proposals need to bear in mind that there exist variations in standards and norms[footnoteRef:9] since people and cultures have different perceptions of good and bad and therefore, and any initiative for change must come from within the community as evident in the case of Parsi and Christian communities and more recently in some groups of Muslim communities[footnoteRef:10]. But this does not imply that the state can completely shun external reforms which emerge from general considerations of public policy[footnoteRef:11]. [8: Gurpreet Mahajan, Negotiating Cultural Diversity and Minority Rights in India, in Judith Large, Reginald Austin (eds.), Democracy, Conict and Human Security: Further Readings 110 (International IDEA, 2006).] [9: Ishtiaq, Western and Muslim Perceptions of Universal Human Rights, 10 Afrika Focus 29 (1994).] [10: Rohit De, Personal laws: A Reality Check, Frontline, Sep. 6, 2013; Rajeev Dhavan, The Apex Court and The Personal Law, The Hindu, Mar 14, 1997. ] [11: Gerald James Larson (ed.), Religion and Personal Law in Secular India: A Call to Judgment (Indiana University Press, Bloomington, 2001).]

The research methodology of this essay centres on bringing out the most feasible alternative which, without compromising Indias commitment to uphold and protect religious minority rights can strike a balance with basic principles of human rights. Part II of the essay discusses the importance of religious minority rights in a multicultural society by tracing its evolution in Indian society and highlights the attitude of legislature and judiciary over the past decades towards resolving conflicts arising between basic principles of non-discrimination and RPLs. Part III discusses the suitability of UCC as a quick-fix solution to such conflicts. Part IV analyses the extent to which Shabnam Hashmi has contributed to this discourse and kind of approach taken by judiciary to delve upon such issues. And in conclusion, Part V ends by suggesting a multistep plan for the government to move towards the realization of the constitutional goal enshrined in Article 44(hereinafter A.44).

II. Recapitulating The Debate

The formation of Indian law is based on liberalist and positivist principles according to which legitimacy of law is dependent upon universal, neutral, and abstract principles where law must entail features of justice, equity and good conscience[footnoteRef:12]. But such legal liberalism ceases to exist in domain of RPLs, where India by virtue of being a multicultural society has accorded minorities a special status with a vision of assimilation. [12: Maneka Gandhi v.Union of India (1978) 1 SCC 248.]

In contemporary India, such state-legitimized status is being repeatedly challenged as the history of these saving laws in India illustrate that they have been selectively used as a tool to achieve political purposes and patriarchic governance. More importantly, they have proved to be disadvantageous to certain sections of society, especially women. Such polemics further fuel the criticism of multicultural societies where unequal rights to citizens, violation of individual rights, impediments to policy change and restriction of cultural exchange are considered to be inevitable outcomes. The criticism has become more intense in relation to plural family law systems[footnoteRef:13], where these group laws to a larger extent have been unable to keep abreast of social changes. [13: Archana Parashar ,Gender Inequality and Religious Personal Laws in India, 14 Brown J. World Aff. 103 (2008). ]

However, many are of the opinion that such contentions reveals a lack of understanding of how culture, rights, law and society operates and also that such biases are a general and universal phenomenon rather than being peculiar to any one group. In this sense we need to delve into the intention of our Constitution-makers in recognizing right of minorities to follow their RPLs, deliberate upon the extent to which such reasoning is justified and to acknowledge the nature of conflict which Indias array of religious freedoms are advancing.

A. Understanding Freedom of Religion and Religious Personal Law in Democratic and Multiculturist India

While cases of religious extremism have blemished the public image of religion, scholars believe that nations around the world who have nurtured religious liberty have witnessed its positive effects including harmony and stability.[footnoteRef:14] Since the potential for animosity is greatest where differences are most profound or where majorities dominate, freedom of religion is critical because it allows people with differing convictions about the deepest matters of truth to live together peacefully. [footnoteRef:15] To most of the individuals it is an intrinsic part of their life which defines them and other rights emanate from it.[footnoteRef:16] [14: See Robert D. Putnam and David E. Campbell, American Grace: How Religion Divides and Unites Us (Simon and Schuster,UK, 2010). ] [15: Brian J. Grim and Roger Finke (eds.), The Price of Freedom Denied: Religious Persecution and Conflict in the Twenty-First Century (Cambridge University Press, Cambridge, UK, 2010). ] [16: Robert D. Baird, Human Religious Priorities and Indian Thought, 11 J. Church & St. 221 (1969). ]

It is because of such rationale that almost all democratic nation states respect for religious freedom and allow cultural liberty. In India, such a realization has existed from ancient times where difference of religion between king and his subject was not a matter of contention and such practices were prevalent at large scale.[footnoteRef:17] After the Independence, our Constitutionmakers have designated religious freedom the status of fundamental right making it justifiable in Court of law. There were two-fold reasons to such recognition: first, religious usages and beliefs have been the core value of Indian society and; second, recognition of the right to be distinct from the majority, which is the central feature of a democracy. But the commitment to protect these rights has been problematic owing to Indias diversity which is more complex in comparison to any other culturally diverse society existing.[footnoteRef:18] Numerical, social and cultural inequality were deeply rooted in Indian society; there were reasonable apprehensions that whether Independent India would be willing to do away with these inequalities.[footnoteRef:19] Independent Indian republic was thus, faced with a daunting task, to find a compromise between modern, western, liberal ideas of democracy and the enormous ethnic, linguistic, cultural, and religious diversity found in India. [footnoteRef:20] In pursuit of which certain safeguards in form minority rights on the basis of religion, language and culture were given.[footnoteRef:21]. For the purpose of this essay we will be only dealing with religious minority rights and the kind of discourse they have renewed in India in relation to RPLs. [17: Charles Drekmeier, Kingship and Community in Early India (Stanford University Press, California, 1962).] [18: Granville Austin, Working a Democratic Constitution: The Indian Experience, (Oxford University Press, New Delhi, 1999). ] [19: Erik Reenberg, Religious minorities in India, 2 Res. Cog. 138 (2007). ] [20: Id. ] [21: D. L. Sheth , Gurpreet Mahajan , Minorities and the Politics of Constitution Making in India in D.L.Sheth (ed.), Minority Identities and the Nation-State, 113 (Oxford University Press,1999).]

B. Religious Minority Rights and The Problem of Religious personal Laws Minority rights and non-interventionist policy is a pre-constitutional phenomenon tracing its genesis to colonial encounter. Each event in the aftermath of 1857, specifically the non-interventionist policy in religious affairs, divide and rule policy propagating theory of two communities i.e., Hindus and Muslims, granting separate electorate to the Muslims & Sikhs incentivised the cause of protecting religious minority rights.[footnoteRef:22] Ironically, such recognition of the minorities by the British was an instrument to protect their own interest of governance and to weaken the movement of freedom struggle by instilling communal affiliations. Remarkably the Indian intelligentsia anticipated the motive behind such moves and openly criticised their policies. [footnoteRef:23] [22: Honble Mr. K.G. Balakrishnan, Individual Rights in India: A perspective from the Supreme Court Paper presented at the International Roundtable Conference, University of Georgia (2009). ] [23: Sugata Bose, Ayesha Jalal, Modern South Asia: History, Culture, Political Economy, (Psychology Press, UK, 2004). ]

Despite such criticisms, the damage done on communal lines could not be undone. As already discussed, the Constitution-makers realized that placating the fears and suspicion raised by these groups would be pivotal to the nation-building process in pursuit of which certain safeguards were guaranteed, for instance, allowing various communities to preserve and practice their personal law.[footnoteRef:24] Thus after post-Independence Indians were governed by general territorial laws on criminal, administrative and commercial matters to the exception of personal laws.[footnoteRef:25] The source of these personal laws is the truncated form of traditions of all-encompassing sacred law aspired to achieve both holiness and spiritual progress.[footnoteRef:26] Generally, these personal laws govern the laws relating to family affairs for e.g. marriage, adoption, succession, inheritance etc.[footnoteRef:27] [24: Dinesh Kumar, Protection of Cultural Rights Under the Indian Constitution: An Analysis 9 Int'l Stud. J. 1 (2012). ] [25: Supra n.9] [26: Id. ] [27: Supra n.11]

In contemporary India the presence and practice of these RPLs has come under heavy criticism. Religious movements are accused of organizing themselves politically with the goal of challenging secular arrangements through the faade of religious minority rights and ultimately, undermining the neutral and universally applicable legal provisions.[footnoteRef:28] Existence of gender biased laws like polygamy, divorce, maintenance, etc. entail innately discriminatory features against certain groups, specifically women who enjoy superior significance in our constitution. [28: Supra n.4]

Also, one may find the existence of internal incongruity in RPLs, questioning its very tenability such as Bohras, Khojas & Kutchi Memons in Muslim community who follow various Hindu customs and beliefs which are considerably different from the tenets of Shariat law, for instance, using coconut as auspicious fruit during wedding which is a prevalent practice in Hindu tradition or following the Mitakshara succession pattern as amended by Mayukha or local customs.[footnoteRef:29] [29: Rasheeduddin Khan, Composite Culture of India and National Integration, 125 (Indian Institute of Advanced Study, 1987) : The influence of Hinduism on Muslims is more pronounced on communities like the Bohras, Kutchi Memons and Khojas who embraced Islam relatively recently, i.e., about 200 years back. Similarity in surnames or family names amongst Indian (and Pakistani) Muslims. To gauge the influence of Hinduism one only needs to ask a Khoja or Bohra his name. Names like Allibhai Premji, Abdul Hashim Premji, etc. occur frequently among the Bohras and Khojas. Hindu surnames occur more frequently among Muslims in general for instance, Chowdhury, Khatri, Munshi, etc. Khoja social functions reveal the surprising presence of Hindu customs. For instance during a Khoja wedding, a coconut is used as an auspicious fruit. In Maharashtra, Muslim women from the Konkan region even wear the Mangal Sutra after wedding. The wearing of flowers, (forbidden in Islam) by Muslim women is a common Hindu custom carried on by the converts. Caste amongst Indian (and Pakistani) Muslims: Muslims still refer to themselves as Rajputs Jats, Gujjars, etc. and caste considerations are present during match-making. Thus we can see that though Islam was spread by the sword and it acted as an exorcist to redeem the newly won adherents from the influence of their original religions, quite a few traces of pre-Islamic culture did manage to seep into the lifestyle and consciousness of the Indian converts to Islam.]

RPLs are also accused of stagnating the evolutionary process of minority religious cultures by successfully suppressing internal dissent, intensifying inter-group suspicion and fostering group identity as distinct from state.[footnoteRef:30] In such situations, if such violative RPLs are permitted to override the provisions of equality and equity, it shall defeat the very purpose of these provisions since not a single law could ever be enacted to alleviate the disadvantaged position of these communities.[footnoteRef:31] [30: Martin E. Marty, Religious Dimensions of Human Rights 10 Emory Int'l L. Rev. 97 (1996). ] [31: Constituent Assembly Debates, Nov. 23, 1948 (Tuesday), Vol. XVI. ]

Ostensibly, under such circumstances constitutionalism appears vulnerable to the claims of religious freedom rights with the apparent aim of smuggling itself into the public and political spheres behind the veil of fundamental rights and multiculturalism. Emphasizing the obligation of the government to duly adhere to the doctrine of parens patriae[footnoteRef:32], the sole prerogative should be the protection of its citizens against abhorrently discriminatory religious or social practices, as religion cannot be deployed to sanction status quo. [32: Charanlal Sahu v. Union of India (1990) 1 SCC 613.]

C. Judicial and Legislative Approach in Case of Conflict

The Courts as a part of their judicial obligation are often called upon to draw a balance between the conceptual triangle of individual rights, group rights and governmental interests in varying measures. It is precisely at this juncture where the Courts flounder. Upon apprehending a political thicket, distinguished judges like Justices Chagla and Gajendragadkar opined that reformation of law on grounds of equality was not under the purview of judicial function since RPLs do not constitute law so as to attract the fundamental rights invocations[footnoteRef:33]. This view was confirmed by the Supreme Court in 1980[footnoteRef:34] even though rightly criticized by several jurists as basically flawed. [footnoteRef:35] This made enforcement of constitutionally guaranteed rights for individuals a Herculean task when they were violated by personal laws. By denying the Article 13(hereinafter A.13) remedy and abandoning personal laws as law for equality purposes, judges averted controversy and abdicated their role to introduce equality into dubious RPLs.[footnoteRef:36] Though, the Courts have restrained from imposing their own interpretations of traditional religious authorities[footnoteRef:37] but attempts have been continually made for the harmonization of RPLs with the secular legal provisions.[footnoteRef:38] Then followed the landmark case of Mohammad Ahmed Khan v. Shah Bano Begum[footnoteRef:39](hereinafter Shah Bano) which incensed the Muslim community due to the Supreme Court disparaging Islamic law and the status of women in Islam while holding that the Court's interpretation was in conformity with the Shariat and urging the government to proceed towards enacting a UCC to remove the lacuna within Muslim personal law. The Muslim community considered a secular court interpreting religious law as grossly inappropriate. Political uproar from the Muslim community caused the Indian Parliament to reverse the law in the Muslim Women (Protection of Rights on Divorce) Act, 1986 (hereinafter Act, 1986). It thus denied Muslim women the option of exercising their rights under the provisions of secular legislation. Thus, the Court's attempt to intervene in religious law proved politically unacceptable and was reversed by the legislature who has always found an excuse to avoid legislating on personal laws bringing them in conformity with the Constitution for political appeasement.[footnoteRef:40] [33: State of Bombay v. Narsu Appa Mali AIR 1952 Bom 84.] [34: Krishna Singh v. Mathura Ahir AIR 1980 SC 707. See Maharshi Avdhesh v. Union of India (1994 Supp (1) SCC 713). ] [35: A. M. Bhattacharjee, Muslim Law and the Constitution, 45 (Eastern Law House, Calcutta, 1985). ] [36: Id. ] [37: Chancia v. Mangamma 1969 CrLJ 684 (SC).] [38: Bai Tahira v. Ali Hossein Fissati AIR 1979 SC 362 which affirmed the legality of the secular provision of s.125 of Code of Criminal Procedure, 1973 (hereinafter CrPC) in the face of conflicting provisions in RPLs. See Shahzadi Begum v. Abdul Gaffer (2002) 7 SCC 518; Sahida Begum v. Mofizul Haque AIR 1986 Gau 171; A reconciliation between CrPC and the new Act was attempted in the case of A.A Abdullah v. A.B.M. Sayeidbhaf' AIR 1988 Guj 141, where it was specifically held that: The 1986 act does not degrade the Muslim women's right to take recourse to the CrPC, as the Act is a personal law subordinate to the CrPC. A similar reasoning was applied to uphold the Muslim women's rights in the cases of Shahnaz Bano v. Baboo Khan (1986) 1 DMC 106, Ali v. Sufaria 1988 CrLJ 197 and Bashir Khan v. Jamilla Bi 1994 CrLJ 361. ] [39: (1985) 2 SCC 556.] [40: M.A. Qureshi, Muslim Law of Marriage and Maintenance 299 (Deep and Deep Publications, New Delhi, 1995). ]

The Supreme Court was finally called upon to determine the constitutionality of the Act, 1986 and held that the Act, 1986 had to be read in conjunction with the right to equality and to life with dignity in the Constitution and confirmed that the lump sum granted to a divorced Muslim woman had to be sufficient to maintain her for life and providing Muslim women better claims to maintenance.[footnoteRef:41] [41: Daniel Latifi v. Union of India (2001) 7 SCC 740.]

Second instance where the Supreme Court while deliberating upon inequities within personal laws held that any usage found to be pernicious and in derogation of the law of the land or opposed to public policy or social decency cannot be accepted or upheld by courts in the country.[footnoteRef:42] It has been held that the personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Indian Constitution but from the religious scriptures. Thus, the laws derived must be consistent with the Indian Constitution else they become void if they violate fundamental rights.[footnoteRef:43] Supreme Courts recently reminded the immoral nature of a discrimination against a woman under RPLs in John Vallamattom v. Union of India[footnoteRef:44] and further held that any legislation bringing marriage, succession and the like matters of secular character within the ambit of Articles 25 and 26 of the Indian Constitution is a suspect legislation. [42: N. Adithyan v. Travancore Devaswom Board & Ors. (2002) 8 SCC 106. ] [43: Masilamani Mudaliar v. Idol of Sri Swaminathaswami Thirukoil (1996) 8 SCC 525. ] [44: (2003) 6 SCC 611.]

It is noteworthy that Indian Divorce Act, 1869 providing grounds for divorce for a Christian couple blatantly discriminates on the grounds of sex when since the grounds available to a husband are much easier and simpler as compared to a wife thereby with additional burden accruing on the wife. Despite glaring inequalities, the court has upheld the validity of such provisions[footnoteRef:45] observing that it is a reasonable classification with the object of preserving the chastity of women[footnoteRef:46]. [45: Dwarka Bai v. Prof. Nainan AIR 1953 Mad 792.] [46: It is interesting to note that The Supreme Court has time and again reiterated that even if the object of legislation is laudable, if it results in violation of fundamental rights, it is ultra vires in Yusuf v. State AIR 1954 SC 321. ]

The High Courts[footnoteRef:47] and the Supreme Court[footnoteRef:48] have in various decisions emphasized the need for a complete reform of RPLs and suggested the need for a UCC. Several Christian communities and activists have endeavoured to reform the Christian personal laws by formulating a progressive Christian Marriage and Matrimonial Cause Bill, 1990 but in vain. The Law Commission of India in its reports[footnoteRef:49] has stressed for the much needed reform but the legislature has failed to take any significant initiatives in that direction. [47: Bombay v. Bombay Education Society AIR 1954 SC 561; R. C. Cooper v. Union of India AIR 1970 SC 564. ] [48: Jorden Diengdeh v. S. S. Chopra AIR 1985 SC 564. ] [49: Law Commission of India 15th Report on Law Relating to marriage and Divorce Amongst Christians in India (August, 1960); Law Commission of India 22nd Report on Christian Marriage and Matrimonial Causes Bill, 1961 (December, 1961); Law Commission of India 90th Report on The Grounds of Divorce Amongst Christians in India: Section 10 Indian Divorce Act 1869 (May, 1983).]

This brings us to the crucial problem. The basis of codifying RPLs is to ensure justice. This can be achieved through the Courts (the A.13 remedy) or by legislation (the A.44 solution). The judges have refused to adopt the A.13 remedy and its reformist tendencies have been negated by the legislature (The Act, 1986 enacted to nullify Shah Bano). Legislative apathy and judicial oversight have continued to deny women any realistic relief.[footnoteRef:50] [50: Sunadri Krishna, Personal Laws and the Constitution, 3 Stud. Adv. 45 (1991). ]

III. Uniform Civil Code; A Quick-Fix Solution

Indian Constitution by virtue of A.44 under Directive Principle of State Policy (hereinafter DPSP) imposes an obligation on the government to endeavor to secure for the citizens a uniform civil code throughout the territory of India[footnoteRef:51]. The implementation of such a code seeks to abrogate the dual secular-religious system through universalisation of all RPLs.[footnoteRef:52] [51: Article 37, Constitution of India, 1950 provides that the provisions contained in the Part IV shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.] [52: Shalini A. Chibber, Charting a New Path Toward Gender Equality in India: From Religious Personal Laws to a Uniform Civil Code, 83 Ind. L.J. 695 (2008). ]

The Constitution-makers subsequent to the accomplishment of independence desired to reorient the social and economic situation of the Indian society primarily through a collaborative participation of all communities under the belief that establishment of a single citizenship would enable elimination of communalist forces and usher in a utilitarian social order. [footnoteRef:53] In the light of the then existing political scenario, interests of religious minority groups could not be overlooked in order to preserve their separate identities and prevent oppression. Most importantly, the involvement of these groups as citizens of the nascent nation was indispensable to instill emotions of honour and integration in the national life. [footnoteRef:54] A twofold purpose was achieved through the recognition and assimilation of minority groups while at the same time enabling the majority and minority groups to converge into one in near future. [footnoteRef:55] Thus, the inclusion of A.44 as a DPSP emerged from the Constitution-makers yearning to achieve national unity rather than gender equality by assuring Muslims that their personal laws would not be offended. [footnoteRef:56] [53: Sarbani Sen, The Constitution of India: Popular Sovereignity and Democratic Transformation, (Oxford University Press, New Delhi,2007).] [54: Shibanikinkar Chaube, Constituent Assembly of India: Springboard of Revolution, (Manohar Publishers & Distributors, 2000). ] [55: Id. ] [56: Archana Parashar, Women and Family Law Reform in India: Uniform Civil Code and Gender Equality 158 (Sage Publications, NY, 1992).]

A very significant observation to be acknowledged at this juncture lies in the fact that the duty imposed under A.44 is not contradictory to Articles 25[footnoteRef:57], 26[footnoteRef:58], 27[footnoteRef:59] and 28[footnoteRef:60] guaranteeing right to religious freedom since the Courts have evolved a binary classification of essential practices and secular activities of religious orders identifying the permissible ambit for governmental regulation.[footnoteRef:61] Furthermore, the language of the Constitution itself encourages questions about the proper scope of religious freedom by including rights relating to the preservation of minorities identity and excluding personal laws from the scope of constitutional scrutiny. Very often these questions arise not in the context of individual or group rights sough to be enforced against the State but in the domain of relations between the religious majority and the various minority communities. Such a framing of questions in political terms highlights the possibilities of divergence between the idea of religious liberty and several core ideals of the constitutional scheme.[footnoteRef:62] Hence, religion must necessarily be confined to affairs strictly religious and must not smuggle into the social, economic and political life of the people which should be guided solely by secular considerations to strike a balance. [footnoteRef:63] [57: This guarantees to every person the freedom of conscience and right to profess, practise and propagate religion subject to public order, morality and health and to the other provisions of Part III of Constitution.] [58: This guarantees freedom to establish and maintain institutions for religious and charitable purposes, to manage its own affairs in matters of religion, to own and acquire movable and immovable property and to administer such property in accordance with law.] [59: This provides that no person shall be compelled to pay tax for the promotion or maintenance of any religion or religious denomination.] [60: This provides that no religious instruction shall be imparted in any educational institution wholly maintained out of State funds but this clause shall not apply to an educational institution which is administered by the State but was not established under any endowment or trust which requires that religious instruction shall be imparted in such institution.] [61: Supra n.19. See Durgah Committee v. Hussain AIR 1961 SC 1402. ] [62: Id. ] [63: P.N. Bhagwati, Religion and Secularism Under the Indian Constitution in Robert D. Baird (ed.) Religion and Law in Independent India (Manohar Publishers and Distributors, 2005). ]

Admittedly though, UCC since its inception has been ardently resisted by religious elites frequently calling it as Damocles Sword[footnoteRef:64] dangling over all religious communities by posing a grave threat to their domination over RPLs. [footnoteRef:65] They refer to the immutability and sacredness of RPLs in order to counterbalance this peril and ensure sustenance of their hegemony.[footnoteRef:66] This aversion to UCC assumed an aggravated form following the judgment in Shah Bano and the subsequent hyper-politicization of the debate over reforming RPLs in general and the expansion of womens rights in particular.[footnoteRef:67] [64: An impending potential disaster; Elizabeth Webber, Mike Feinsilber (ed.), Merriam-Webster's Dictionary of Allusions, (Merriam-Webster, 1999).] [65: Bader Sayeed, Need for Codification, The Hindu, Jul. 25, 2000.] [66: Shimon Shetreet, Academic Blueprint For the Implementation of a Uniform Civil Code for India, 1 Utah L. Rev. 97 (2011). ] [67: Dinusha Panditaratne, Towards Gender Equity in a Developing Asia: Reforming Personal Laws Within a Pluralist Framework 32 N.Y.U. Rev. L. & Soc. Change 83 (2007). ]

A robust secularism is the foremost prerequisite towards securing the trust of minority communities in the neutrality of the government, in absence of which minorities that have been discriminated against for decades are unlikely to accede to a relinquishment of their laws.[footnoteRef:68] The turmoil over UCC originates from concerns over the process and who controls that process, much more than the concept itself.[footnoteRef:69] Minority rights advocates appear apprehensive that UCC would lead to the relinquishment of such religious law and practices considered as the keystone of their cultural identity by imposition of the majority Hindu law under the garb of a UCC.[footnoteRef:70] It would resultantly allow Hindus to legislate on Islam with probable reformation of laws. And, these fears become stronger in contemporary times when the secular institutions are being appropriated by the Hindu fundamentalist to further its own assimilationist propaganda of Hindutva rather than fundamental rights. This is clearly evident in case of Hindu Nationalists criticizing gender-unequal features of particularly Muslim law, but ignoring the prevalence of similar practices in Hindu law. However, religious minority groups might be legitimate in fearing that the UCC would intrude upon their values in the presence of a DPSP seeking to eventually prohibit cow slaughter across India.[footnoteRef:71] Such an overtly Hindu-centric provision in a professedly secularist constitution reduces confidence in the democratic government's credibility to be unbiased while formulating religious policies and laws.[footnoteRef:72] [68: Supra n.4.] [69: Supra n.40.] [70: Ainslie T. Embree, A South Asian Dilemma: The Role of Religion in the Public Sphere, 4 Brown J. World Aff. 137 (1997). ] [71: Anton Cooray, The Protection and Promotion of Religious Rights: A Commonwealth Survey, 12 Sri Lanka J. Int'l L. 153 (2000)] [72: Supra n.55]

The issue of insecurity amongst minorities about their RPLs also relates to their privileged position as minorities in a country. Since codification would interfere with their supremacy over interpretation of the texts, UCC would abolish most or all of the authority of Muslim religious leaders.[footnoteRef:73] It is noteworthy that the government is not a passive actor and rather actively legitimizes certain interpretations of a groups culture as opposed to other competing interpretations by absolutely granting these religious groups dominion over personal laws. By choosing sides in divisive religious matters, it inadvertently denies rights to the oppressed classes and instead confers special privileges on the minority. [73: Partha S. Ghosh , Politics of Personal Laws in South Asia, Identity Nationalism and Uniform Civil Code 89 (Routledge, New Delhi, 2012). ]

In absence of political will, such progressive development in law will not occur in India inspite of its strong democratic institutions and express constitutional mandates.[footnoteRef:74] This leaves the issue of governments commitment to uphold gender equality through legal reforms an unsettled question. Shah Banos case was deployed against the Muslim community and the condition of Muslim women was severely condemned while the discourse in case of Hindu woman, Roop Kanwar[footnoteRef:75] was not as deplorable. Where Shah Bano was portrayed as a symbol of the oppressed Muslim women, but Roop Kanwar was dignified as a symbol of all that is pure and holy. In fact, both were victimized at the hands of a prejudiced culture. The temperament of the current government seems to be nowhere ahead than that of the Constituent Assembly, which prioritizes Muslims over gender equality since Muslims, and not women are a formidable voting bloc.[footnoteRef:76] [74: Laura Dudley Jenkins, Diversity and The Constitution in India: What is Religious Freedom? 57 Drake L. Rev. 913 (2008). ] [75: Roop Kanwar, an 18-year-old widow committed suttee in 1987. The incident was highly controversial, as groups throughout India either publicly defended Kanwars actions or declared that she had been murdered.] [76: Anik Rahman, Religious Rights versus Women's Rights in India: A Test Case for International Human Rights Law, 28 Colum. J. Transnat'l L. 473 (1990). ]

The Courts, as part of their judicial function have mostly proved inadequate in the sphere of personal laws. Even if the religious personal laws are made to comply with the Indian Constitution, the piecemeal manner of assessing these diverse laws will be an everlasting course of litigation and inefficient in dispensing justice to women. Also, justice for all is a more sustainable way of delivering justice as against justice from case to case.[footnoteRef:77] [77: Frances Raday, Culture, Religion and Gender, 1 Int. J. Const. L., 670 (2003). ]

Indeed, this discussion over codification raises the issue of conflict of laws.[footnoteRef:78] Unilateral pursuance of reforms to minimize conflicts may in turn lead to compromise of important internal values and customs. A further conflict may arise between contending reforms themselves owing to the uncertainty of their impact thus, a dilemma of choice arises. [78: Supra n.40.]

Having set out these observations, successive governments continue to support the arguments put forth by religious patriarchal leaders for political purposes or arising from a misunderstanding of the words religious tolerance.[footnoteRef:79] Lastly, Muslims in India are considered as a community whose votes are courted but whose interests are ignored, and sometimes attacked.[footnoteRef:80] [79: Ratna Kapur, Brenda Cossman (eds.), Gender Faultlines of Legal Liberalism and the Advance of the Contemporary Right: The Case of India 117 (Sage Publishers, New Delhi, 1996). ] [80: Srikanth Reddy, What Would Your Founding Fathers Think? What Indias Constitution SaysAnd What its Framers Would SayAbout the Current Debate Over A Uniform Civil, 41 The Geo. Wash. Intl L. Rev. (2009).]

Bearing in mind the objective of UCC, formulating an equitable opt-in code would mean the Muslim traditionalists are not only assured of their hegemony in the private domain but also legitimizes their claim of religion being sacrosanct and inflexible. Such a solution is unacceptable because it allows the patriarchal norms to prevail unchallenged. Advancing the pubic-private split, women shall continue to be perplexed with the choices of either withdrawing from the community or consenting to unfair patriarchal interpretations of religious law. Being reluctant to jeopardize their community relations and denied the privilege of making choices, such an opt-in plan is prima facie misleading while unjustly placing the hardship of resolving differences upon the individual. As evidenced by the current debate, the SMA being an opt-in secular law has been unable to rattle the predominance of RPLs.[footnoteRef:81] [81: Supra n.40.]

Though Indian Constitution deserves acclaim for its progressive aspirations of gender equality. However, incessant politicization of law and identity intertwined with RPLs continue to obstruct the achievement of UCC.

IV. Where Are We Heading: In Light of Shabnam Hashmi v. Union of India

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. [footnoteRef:82] [82: Chief Justice John Marshall in Marbury v. Madison, 5 U.S. 137 (1803).]

The question of religious accommodation and the place of ones inalienable rights has been a perennial question in Indian context. While the limits of public order, health and morality seem to be fairly defined, the bright line becomes blurry when Courts have to choose between RPLs and the core rights because the rights accorded to the groups through RPLs create hardships for Courts in resolving such issues.[footnoteRef:83] [83: Cyra Akila Choudhury, Between Traditions and Progress: A Comparative Perspective on Polygamy in the United States and India, 83 Col. L. Rev. 966 (2012).]

Religion is deployed as a shield to protect the practice of hypocrisy, pitting faith against the claims of modernity, gender justice and equality. In India, the Courts carefully navigate between honouring secular tendencies to reform RPLs and accommodating minority religions; both assimilationist and accommodationist tendencies are evident. They have been deferential to the legislature. The Indian Courts have used an array of interpretive moves to reach just outcomes but the. This tension has become intractable. Nevertheless, the hope for just code that replaces personal laws still burns albeit dimly.[footnoteRef:84] [84: Supra n.75. ]

In the latest judgment delivered by the Supreme Court while adjudicating right of adoption in the religion of Islam where the petitioner(Shabnam Hashmi) approached the Apex court praying for threefold reliefs: first, for legal recognition of the right to adopt and to be adopted as a fundamental right under Part III of the Indian Constitution; second, requesting the Court to lay down optional guidelines enabling adoption of children by individuals irrespective of religion, caste, creed etc. and; third, directing the respondent to enact an optional law primarily focusing on the child and other considerations like religion etc. taking a hind seat.

The Supreme Court held that irrespective of the constraints imposed by their RPLs, any person can adopt a child under the JJ Act. Further, the bench reiterated that the JJ Act, 2000 does not prescribe any compulsive action by a prospective parent thus, leaving such person with the liberty of being governed by the provisions of the JJ Act if he wishes. Such a person is always free to adopt or choose not to do so and, instead, follow what he understands to be the dictates of religious law applicable to him. Being an optional legislation the JJ Act does not contain an unavoidable imperative and therefore, cannot be stultified by principles of personal law and would always continue to govern any person who chooses to so submit himself as such. However, the bench did not articulate a adoption as a fundamental right which would require awaiting a dissipation of the conflicting thought processes in this sphere of practices and belief prevailing in the country. The Court considered the legislature better equipped to comprehend the mental preparedness of the entire citizenry to think in a united and uniform manner on the issue which for the present expresses its view through the enactment of the JJ Act and the same must receive due respect.

Though the goal of UCC is yet to be fulfilled, the JJ Act is a small step further in achieving the goal aspired by A.44. The Court emphasized that the personal beliefs and faiths, though must be honoured, should not be allowed to override the provisions of an enabling statute.

Prior to the judgment, there was no law governing adoption for people belonging to communities other than Hindus, Sikhs and Jains. Parents belonging to other religions like Muslims, Christians, Jews and Parsis only had the power of guardianship in which one possesses only legal right in the child till he or she turns an adult, although the biological parents can intervene during that period. But, adoption makes one natural parents and the child also acquires all rights akin to a naturally born child and can even inherit property.[footnoteRef:85] [85: Shivesh C. Thakur, Religions and Social Justice 44 (Macmillan Press, NY, 1996). ]

A careful analysis of the judgment reveals that howsoever, tactfully drafted it is nothing but a small step in recognizing adoptions under JJ Act and also granting that Indian Muslims may adopt children. It seems to be wholly facilitative in the sense it does not impose any compulsive action upon the adoptive parent. [footnoteRef:86] [86: Upendra Baxi, Perils of Restraint, The Indian Express, Feb. 26, 2014. ]

The approach of the relief granted in this case is comparable with that of SMA which places responsibility on the individual to access the enabling provisions of the Act. Thus, a dilemma arises where the individual member of the minority community seeks affirmation of rights from the state against the diktats of the community and has to choose between acceptance within the community or enforcement of the constitutionally guaranteed rights. For the fear of stigmatization and ostracization within the religious community, one may rather remain silent and be denied her rights as witnessed in the aftermath of Shah Bano where the widow refused to comply with the decree of the Court after realizing that her demand for maintenance beyond the stipulated time period was against the tenets of Islam. Hence, a zero sum game is an inevitable consequence.[footnoteRef:87] [87: Id. ]

On the one hand, the Court adores Article 21 (hereinafter A.21), right to liberty and rendering of complete justice by expanding its own jurisdiction but on the other hand, denied elevation of the right to adopt to the status of a fundamental right guaranteed under A.21. It can be concluded that Judicial self-restrained stands commended; judicial activism stands downgraded.[footnoteRef:88] [88: Id.]

It is to be noted that the Court evaded its responsibility in furthering the realization of A.44 and stresses that the legislature has to discharge the constitutional obligation under A.44 and it now lies upon the future generation to draft a UCC. The Court was not justified in ruling so when it could have followed on the lines of historical judgment of Shah Bano even if the public response would have been provocative.

Lastly, the Court had failed to note that many Muslim jurists are interpreting fiqh (jurisprudence) as distinct from the divine Sharia when, even though Sharia remains subject to conflicting human interpretations and is no more divine in its origin.[footnoteRef:89] [89: Id. ]

It is puzzling and rather, distressing that even after 65 years of Independence, India has been unable to undertake any step towards actualization of A.44. The question lingers whether the RLPs and the publics religious sentiments are supposed to guide and influence the state actions or the Indian Constitution which forms the very basis of religious freedoms and right to complex equality?[footnoteRef:90] [90: Zoya Hasan, Ritu Menon (eds.) In a Minority Essays on Muslim Women in India, (Oxford University Press, Uk, Delhi, 2005). ]

V. The Process of Building Consensus: The Road to Uniform Civil Code

It is often quoted that in the interest of development of secularism and national integration, UCC is a necessity. Examples of strong countries like Israel, Japan, France and Russia who have successfully implemented UCC are quoted to buttress the cause of UCC.[footnoteRef:91] Admittedly, such directive under A.44 of Indian Constitution is desirable and might be able to accelerate national integration but such a possibility is always rebuttable if democracy chooses to operate the other way. Such trends in contemporary times are common and rampant where any attempt to bring UCC can result in reactive culturalism, where a minority group does not merely freezes internal reform; there is actually a concerted effort on the part of the group's leaders to move the group backwards in time to more traditional practices. [91: Nandini Chavan, Qutub Jehan Kidwai (eds.), Personal Law Reforms and Gender Empowerment: A Debate on Uniform Civil Code (Hope India Publications, New Delhi, 2006).]

It is therefore suggested that before resorting to any radical actions which can be counterproductive there must be some internal reforms in personal laws to make them more equitable and such internal reforms must be guided by forces of vernacularization[footnoteRef:92] and gradualism[footnoteRef:93]. Rather than a unitary focus on culture, special attention should be given to structural inequalities of wealth, power, access to education[footnoteRef:94], employment[footnoteRef:95], and gendered poverty.[footnoteRef:96] The notion of culture must be demystified to gain recognition of the fact that it is not monolithic and in fact it is deeply contested, politically contingent, actively negotiated, discursively created and selectively reinvented. [footnoteRef:97] This scheme could also be applied in alleviating womens condition in Muslim community as culture can be strategically used to forward womens rights campaigns.[footnoteRef:98] [92: Supra n.5 p.111. ] [93: Leila P. Sayeht, Adriaen M. Morse , Islam and the Treatment of Women: An Incomplete Understanding of Gradualism, 30 Tex. Int'l L. J. 311 (1995). ] [94: Minority Rights Group International, Muslim Women in India (Feb. 1990)Literacy rate of Muslim women was found to be 21.91% lower than even the poor national average of 24.82%.] [95: Venkitesh Ramakrishnan, Community on the margins, Frontline, Dec. 2, 2006; In 1983, the Gopal Singh Committee instituted by the government, declared Muslims as a backward community in India. A central feature of this backwardness is their exceedingly poor socio-economic status, particularly of Muslim women. Most Muslim women remain invisible workers in the informal economy.] [96: Rohit De, Personal laws: A Reality Check, Frontline, Sep 6, 2013;New evidence suggests that gender inequality within the family bears a greater correlation to socio-economic conditions than the form of religious law. New areas of emphasis on family law reform address questions such as domestic violence which cut across community identities and concerns. ] [97: Iris Marion Young, Justice and the Politics of Difference 18 (Princeton University Press, New Jersey, 1990).] [98: Ratna Kapur, Revisioning the Role of Law Rights in Womens Human Rights Struggles in Saladin Meckled-Garca, Baak Cali (eds.), The Legalization of Human Rights: Multidisciplinary Perspectives on Human Rights and Human Rights Law 80, 81 (Psychology Press, 2006).]

International human rights conventions[footnoteRef:99] can provide helpful insights for domestic interpretation of the constitution and can greatly impact in reforming the constitutional position of women other adversely affected classes.[footnoteRef:100] International human rights law impacts womens status through the acceptance and incorporation of these standards by national constitutional courts.[footnoteRef:101] [99: ] [100: See Shah Bano and Sarla Mudgal. Mr. Justice S. Saghir Ahmed and Mr. Justice R. P. Sethi in Sarla Mudgal: This court had not laid down any new law but only interpreted the existing law which was in force. ] [101: In case of principles related to women; Application of Principle of Convention on Elimination of Discrimination of Women (CEDAW) and International Covenant of Cultural and Political Right (ICCPR). ]

Also one must understand that there can be no claim to a pure cultural authenticity and indeed one must acknowledge hybridity of culture and modernity of tradition.[footnoteRef:102] For instance earlier religious texts and traditions are much more often quoted in debates about Muslim law in comparison to India's other family law systems which leads to an assumption that the position of Muslim law particularly with regard to position of women have remained static and have not changed for better. This is not the case as Islam was the first document which recognized rights of man quite earlier than Magna Carta in 1215. [footnoteRef:103] Also, in India Muslim women had greater rights to control shares of ancestral property than Hindu women until Hindu inheritance law was changed in 2006[footnoteRef:104] where the Hindu daughters were given rights to greater shares of their parents "self-earned" property than Muslim daughters. These internal discourses by using their own culture as an instrument can largely facilitate internal changes. But at last, we need to understand that changes in social practice and public opinion do not determine legal change because of the fluctuating influence of groups and opinions. [102: Supra n.6 p.93. ] [103: ] [104: Hindu Succession (Amendment) Act, 2005 (Act 39 of 2005). ]

Legal change depends specifically on legal mobilization, the patterns of litigation associated with these movements especially by women's organizations and other rights organizations for women's rights and cultural pluralism and more importantly policy makers' orientations toward the regulation of family life, their understanding of group norms and group initiatives, their normative vision of family life, etc. Thus any reform in personal laws aftermath of Shah Bano requires greater external intervention by the legislature.

The legislature in order to address reactive culturalism and internal dissent occurring in the Muslim community must proceed in stages which will serve two fold purpose first it will keep religious groups involved in the process and the second ultimate objective of enacting a uniformcivil code will be on board[footnoteRef:105]. The central aim of the legislature should be to provide all religious communities a long, but defined, period of time in which they are required to reform their own personal laws and contributes towards the creation of a uniform civil code.[footnoteRef:106] However, constitutional gender equality should be the substantive component of all RPLs. [105: Supra n.54 p.712. ] [106: Id. ]

By involving both men and women of the different religious groups in the discussion and final outcome, the plan seeks to encourage internal reform and to dilute the majority- minority tensions by making each group responsible for its own reform and equally a part of drafting the uniform civil code[footnoteRef:107]. If successful, India will achieve its goal of promoting a secular state where various cultural diversity and rights of individual will co-exist together rather than on altar of each other. [107: Martha C. Nussbaum, Women and Human Development: The Capabilities Approach, 717 (Cambridge University Press, Cambridge, 2001). ]

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