uniform civil code vs

8/3/2019 Uniform Civil Code Vs

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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 Indiannation”.

“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 thestates of India where they are part of the law of theland, and the individual is entitled to have thatindividual's own personal law applied and not the lawwhich 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 emphasizethat no particular religion in the state will receiveany state patronage whatsoever and no citizen inthe state will have any preferential treatment orwill be discriminated against simply on theground 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 betaken into consideration.



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

• Under Article 25 of the Constitution, all personsare equally entitled to freedom of conscience andthe right to freely profess, practice, andpropagate religion subject to public order,morality, and health.

• Article 26 gives to every religious denomination afundamental right to manage its own affairs inmatters of religion. This cannot be abrogated inany way.

• Article 29 gives the absolute and unqualified

right to minorities to conserve their distinctlanguage, script, and culture.

• Article 30 gives the fundamental right to allminorities, whether based on religion orlanguage, to establish and administereducational institutions of their choice, but thereligious denomination's right to manage its ownaffairs is restricted to "matters of religion" whichare "subject to public order, morality and health."

•

The only rights that are absolute and unfetteredare the right to freedom of conscience underArticle 25 and the right of minorities to conservetheir distinct language, script, and culture underArticle 29.

Under the Constitution religion is not equated withfreedom of conscience, and the freedom of religion(defined as embracing the propagation, practice, andpublic 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 beconducive 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 andbelief, but also included rituals, ceremonies, andreligious practices according to the tenets of areligion. Courts are called on to determine not onlywhether a practice of a religion is an essential part of the religion, but also to scrutinize governmentalrestrictions on the practice and propagation of religion to determine whether the restrictions passthe 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. Secularismpervades its provisions, which give fullopportunity to all persons to profess, practiceand propagate the religion of their choice.

“The constitution not onlyguarantees a person's freedom of religion and conscience, but alsoensures freedom for one who hasno religion, and it scrupulouslyrestrains the state from makingany discrimination on grounds of religion”.

• A single citizenship is assured to all personsirrespective 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, itdoes not mean that we reject the reality of anunseen spirit or the relevance of religion to lifeor to exalt irreligion. It does not mean thatsecularism itself becomes a positive religion orthat the state assumes divine prerogatives. Wehold that not one religion should be given

preferential status. This view of religiousimpartiality, or comprehension andforebearance, has a prophetic role to playwithin the National and International life".

Components of Secularism

1. Equality as incorporated in Article 14.

2. Prohibition against discrimination on thegrounds of religion, caste etc; asincorporated under Article 15 and 16.

3. Freedom of speech and expression and allother important freedoms of all the citizensare conferred under Articles 19 and 21.

4. Right to practice religion is conferred underArticles 25 to 28.

5. Fundamental duty of the state to enactuniform civil code treating all the citizens asequal, is imposed by Article 44.



According to “ D.D.Basu”

"He described the expression " secular " asvague.he further stated that it would be acorrect summary of the provisions of articles

25-30 to say that the expression " Republic" asqualified by the expression "secular" means arepublic 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 freeprofession, practice and propogation of religion--------

(1) subject to public order, moralityand health and to the otherprovisions of this part, all personsare equally entitled to freedom of conscience and the right freely toprofess, practice and propogatereligion.

(2) Nothing in this article shalleffect the operation of any existinglaw or prevent the state frommaking any law--------



a. regulating or restricting anyeconomic, financial, political orother secular activity whichmay be associated with

religious practice;

b. providing for social welfareand reform or the throwingopen of Hindu religiousinstitutions of a publiccharacter to all classes andsections of Hindus.

• Article 25(1)

o 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 wellbeing.

• 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 viewof religion held that the teachings of Sri Aurobindoconstituted a philosophy and not religion even if theirfollowers 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 newreligion or a new school of religiousthought but whether his disciples andcommunity thought so because religion is amatter of belief and doctorine, concerningthe human spirit, expressed overtly in theform of ritual and worship and since

Aurobindo's disciples took Aurobindo's teachingsin that spirit the teachings constituted a distinctreligion.

Uniform civil Code for the citizens

Article 44 talks about a Uniform civil Code for thecitizens---------

The state shall endeavor to secure for the

citizens a uniform civil code throughout theterritory of India

On the one hand we have Article 25, which gives theliberty to all to profess and propagate their religion.The state will not glorify any particular religion.



On the other hand Article- 44 though a directiveprinciple but fundamental in the governance of thecountry talks of a uniform civil code which caninfringe 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 onepoint of time it says that the state will not propogateany partiular religion and in the second breath it isamassing the role of religion itself.

The state is indulging itself into a sabotage to repressand suppress the minority right and religion.

This is what was done in Mohd Ahmed Khan vs. ShahBano Begum whereby Chief Justice Chandrachudechoed his misapprehension about Islam.

He said that “ the fatal point in Islam isthe degradation of women. And tomake things worse he declared thatthe actual and final solution of theproblem he was tackling lay in the

immediate enactment of a uniform civilcode”.

• 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 byabandoning all their un-islamic anti womenpractices.

True essence of Holy Quaran has to be codifiedfor the benefit of both the Muslims and Non-Muslims otherwise an unwanted Uniform civilcode will be imposed on us.

uniform civil code vs

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