Secularism & its various aspects and UCC

Society: Secularism in India

"Justice that is rooted in equity, in social welfare and in community is not justice at all"

• Concept (which is originated from USA)
• Different Models of Secularism
• US Model of Secularism
• French Model of Secularism
• Indian Model of Secularism
• Secularisation, Differentiation, Privatisation and decline of social significance of religion.
• Contemporary issues
• UCC
• Essential religious practice doctrine
• Triple talaq
• Sabrimala issue
• Santhara/Sallekhana

Secularisation 

• It is defined as the principle of separation of government institutions and people who have mandate to represent the state from religious institutions and dignitaries.
• It is devoid of both inter and intra-religious domination.
• It promotes freedom and equality both within the religion and between the religion.
• It includes separation between state and the religion. However, the nature and extent of separation depends upon the values it (Nation) intends to promote.

Secularism in USA - by Thomas Jefferson

• The US Model of Secularism is based on the rationale that the religion constitutes the private affairs. Hence, it should be restricted to private domains only.
• Sphere of politics is separated from the sphere of religion (i.e., Religion and State have an arm length distance between them. They are mutually exclusive and totally independent of each other).
• State shall not adopt any religion as state religion.
• No one shall be discriminated on the basis of his/her religion.

Secularism in France - (Laicite means Secularism in French)

The French Model of Secularism is known as Laicite. It has following features -

• There exists separation of state and religion.
• It does not promote any religion or discourage any as long as the beliefs and practices do not interface with the state or any citizen's right.
• Due to its commitment to total separation explicit religious practices and symbols are banned in public sphere such as Public Schools, Offices, Public space, etc.
• The rationale behind the French model of secularism is that it had the history of Church domination and hence to curtail the authority of Church; French government prohibits people from expressing their religious sentiments in public spheres.

Thus, it can be said that, US adopted for Soft Secularism whereas France adopted for Hard Secularism.

Secularism in India 

Since, India is religiously diverse nation, the idea of secularism although inspired by west; it is rooted in the India's socio-historic circumstances.

For example - Freedom struggle which advocated equal respect for all religion, ideology of salad bowl theory of multi-culturalism, to counter the communal tensions which was created due to British policy, etc.

So, in Indian context, the wall of separation between state and religion is porous (or they are at principled distance). It means there is no such strict separation between state and religion.

In Indian Context - 

• Religion → Can't interfere in the matter of politics/state
• State → but state can interfere in religious matters for the following reasons -
• to ensure inter-religious equality as well as intra-religious equality.
• to give effect to progressive voices among different religion.
• For example - If any practice which goes against human right or is discriminatory, then the state can interfere to protect the rights of minorities (like abolition of untouchability, Abolition of Sati, Abolition of Triple talaq, etc)

The wall of separation between the state and religion in the context of India is porous. The state can intervene in the religious matters to give progressive voices within every religion and to allow disagreement with some aspect of religion. 

For example - Abolition of Sati, Untouchability, Triple talaq, etc.

It is known as Principled Distance (concept given by Rajeev Bhargav). It means that the state tries to balance different but equally important values. However, religion is strictly prohibited to intervene in state matters.

For example - Any electoral mobilisation on the basis of religion is unconstitutional.

Secularism vs Secularisation 

• Secularism → A principle (a political concept)
• Secularisation → Process through which one tries to domesticate religion (curtail the authority of religion) by -
• Differentiating
• Privatising
• Declining the social significance of religion

Question for practice 

How Western model of secularism is different from Indian model of secularism. Discuss.

• USA → Individual right
• India → Individual as well as Community (religious) right 

Doctrine of Essential Religious Practices (ERP) 

Article 25 - Freedom to conscience and free profession, practice and propagation of religion. 

But it is subjected to public order, morality and health. And nothing shall affect the operation of any existing law or prevent the state from making law.

i.e., It is not an absolute right. State can intervene.

1954 - Shirur Math Case - Supreme Court gave the concept of 'Doctrine of Essential religious practices' whereby certain religious practices which are essential/integral to the core philosophy or existence of religion cannot be taken away by the state and under any circumstance State/Judiciary would not be allowed to intervene.

So, Essential Religious Practices of a Religion consists of - 

• Mode of worship
• Certain Ceremonies
• Certain Customs/Rituals 

Provided they are integral for the vary existence of the religion.

Anand Margi Case - Supreme Court declared that performing 'Tandav' in the Public Space is not an Essential Religious Practice.

Judiopapism - It is defined as over interference of judiciary in religious matters.

Doctrine of Essential Religious Practices -

• It defines the limit on what could be called the sole domain of religion, i.e., certain groups can claim their rights to manage affairs of religious institutions and performs specific rituals provided it does not challenge the constitutional guarantees to other.
• In Shirur Math Case (1954), Judges gave themselves the power to determine what constitutes essential religious practices.
• However, Judicial encroachment on religious matters known as Judiopapism is often questioned.

Different cases and related issues -

1. Right to Maintenance - Shah Bano Case & Daniel Latiffi Case
2. Conversion for the purpose of marriage - Sarla Mudgal Case
3. Nikah Halala, Polygamy, Triple talaq - Shayla Bano Case

These are usually dealt under Sec 125 of CrPC (The Code of Criminal Procedure).

Shah Bano Case 1986 -

• Muslim women are entitled to maintenance for entire life not till Iddat period (90 days).

It was questioned in Supreme Court on the basis of interference in personal life (religious life).

Rationality given by Supreme Court -

• As Maintenance falls under Sec 125 of CrPC, which is a criminal provision and it is a criminal offence for not supporting/providing maintenance to your divorced wife who is unable to sustain herself and Criminal provisions are applicable to all irrespective of religion.

In this effect, Rajiv Gandhi Government passed a law which states, "A fair and reasonable amount would be decided and given Within Iddat period". Here, it should be noted that the wording used in the Act is 'Within' not 'For'. Thus, it creates a confusion.

Daniel Latiffi Case 2001 -

• Supreme Court again reiterated based on wording of law (Within). Shah Bano Judgement still hold true.

Sarla Mudgal Case -

• Conversion for the purpose of marriage is illegal and marriage will be declared null and void.

Hindu - Only one marriage is allowed

Muslim - Polygamy is allowed

So, many people starts converting religion to have more than one wife. 

So, in Sarla Mudgal Case, Supreme Court declared it illegal.

Shaylra Bano Case 

In Muslim, the husband can give talaq (divorce) to his wife in two ways -

1. Talaq-i-biddat
2. Talaq-i-sunnat

• Talaq-i-biddat is instantaneous talaq (Saying talaq 3 times continuously for instant talaq)
• Talaq-i-sunnat is uttering talaq in 3 subsequent months.

Supreme Court declared instantaneous talaq (Talaq-i-biddat) illegal and null & void.

Rationality given by Supreme Court -

• Talaq-e-biddat, itself in Islam is sin. So, how can it encompass Essential Religious Practice. So, Court can intervene.

An act was passed which made giving instantaneous talaq is a criminal offence and invite 3 years of imprisonment and fine.

But, Court did not say anything on the issue of Nikah Halala and Polygamy in Muslim.

Triple Talaq 

• Shayara Bano Case
• Provisions of the Act -
• Talaq-i-biddat is declared void and illegal.
• Made it a criminal offence - 3 years of imprisonment and fine
• The offence is Cognigible, if information is provided by women herself or any relative related by blood.
• Scope of reconciliation without Nikah Halala if party stops legal proceedings.
• Provisions for subsistence allowance and custody of child (as determined by magistrate).
• Magistrate can grant bail after hearing wife.

Analysis of the Triple Talaq Act 

For the motion -

1. It serves the purpose of having stringent law, so as to curb the arbitrary practice.
2. It will cause gender justice.
3. It provide redressal to women (subsistence allowance with child custody).
4. It act as source of deterrence.
5. It declared Triple talaq as not an essential religious practice and is not sanctioned by Islam.
6. It is a move towards gender equality.

Against the motion -

1. Criminalizing the civil offence is wrong.
2. How can man provide 'Subsistence allowance' when he is in jail.
3. It can be seen as a selective criminalising.
4. Issue of implementation in case of oral talaq-i-biddat in case of lack of witness.
5. Rise in divorce and abandonment (shut the possibility of reconciliation).
6. Infact, it is Nikah Halala which needs to be criminalised as it is the violation of women right.
7. Issue of lack of proportionality - Muslim men is subjected to a 3 years of jail whereas for the same offence non-muslims are liable for 1 year of jail.
8. Issue with mis-use of act by women.

Santhara 

• Practiced by Jainism.
• It is an act where a person starve till death.

Nikhil Soni Case - 

People in the name of Santhara are forcing their old parents because they want to get rid of them.

Rajasthan High Court -

• Santhara is not an Essential Religious Practice.
• Santhara is equivalent to suicide.
• It violates Article 21 (Right to life).
• Also, Article 21 does not give you the right to die.

So, This judgement is challenged in Supreme Court.

Supreme Court -

• Supreme Court overturned the judgement and put a stay on this matter.
• Supreme Court also declared that Judiciary does not have the right to declare any practice as essential religious practice or not.
• Supreme Court also states that Santhara is not equivalent to suicide as it is not impulsive practice.
• Practitioners/Philosophers of the religion and the religious scriptures will identify whether the practice is ERP or not.

Santhara 

Santhara refers to a Jain practice of facing death voluntarily at the end of one's life.

This was banned by Rajasthan High Court in Nikhil Soni Case on two grounds -

1. Right to life does not include right to die and hence not protected under Article 21.
2. It does not constitute essential religious practice, hence not protected under Article 25.

However, the Judgement was challenged in Supreme Court. It lifted the ban on Santhara based on following arguments -

1. High Court judgement is based on incorrect observation on Jainism.
2. The court has criminalised the philosophy and they do not have the right to determine whether the practice is essential or not.
3. One can't equate Santhara with Suicide as it is not impulsive and is an act of spiritual purification.
4. The court said, the Jain Scholars were not consulted by the court while making judgement and hence it is an act of Judiopapism.

Sabrimala Issue 

Doctrine of living tree - Constitution is like a living tree (living document or evolving document). As the society changes, evolves the requirement of the constitution and the ambit of the article can be widened.

With respect to Sabrimala, the issues involved were right to equality vs right to religion, faith vs rationality and regressive and patriarchal attitude of the sociey. 

The case was being filed by Indian Young Lawyer Association and it said discrimination in matters of entry into temples was neither a ritual nor a ceremony associated with Hindu religion and hence it is anti-religious.

Argument in favour of ban (by Indu Malhotra) -

1. Different temples have different customs, hence in Sabrimala it is not about discrimination, it is about restriction.
2. Practice of not allowing women to entry is an Essential Religious Practice and hence it is protected under Article 25 of the Constitution.
3. Right to privacy of god needs to be respected.
4. The Celibate character of the god (Lord Ayyappa's Celibate avatar) can't be challenged by those who wish to pray.
5. It is not possible for women to put up the physical hardship and austerity and days of celibacy like men.

Argument against the ban -

1. The ban on the entry of women is based on patriarchal belief where only men is capable of performing austerity while a women is incapable of remaining pure for 41 days prior to the pilgrimage.
2. Women's right to worship is constitutional and hence can't be denied.
3. Temple ban on women violated Article 17.

In essence this case is a test case not only for freedom of religion and women's right but also respecting the wider principle of constitution. There is a need to change the religious belief based on rationality and modernity. However, the doctrine of Essential Religious Practice needs to be applied.

Thus, Supreme Court declared the ban of women entry by considering it pollute is unconstitutional and violates Article 14 (Right to Equality), Article 17 (Abolition of Untouchability) and Article 25 (Right to Freedom of Religion).

Thus, through this judgement Supreme Court also expanded the definition of Untouchability (under Article 17), it now also include considering some one as pollute based on gender, caste, religion, race, etc. is unconstitutional.

Sabrimala Temple

Uniform Civil Code (UCC)

• Concept
• Debate
• Way forward

Uniform Civil Code - It refers to body of laws governing rights and duties pertaining to property and personal matters like marriage, divorce, adoption, inheritance, etc.

Article 44 of the Constitution guarantees the state shall endeavor to secure for the citizen a Uniform Civil Code throughout the territory of India.

Debate wrt UCC as Fundamental Right or DPSP

• Since, partition just happened on Communal lines and due to the incidences of Communal riots, UCC was put in Part IV of the Constitution, i.e., DPSP.
• Sub-Committee on Fundamental Right headed by Sardar Vallabh Bhai Patel (total members - 9) made a decision to put it in Part IV under Article 44 (decision was made through voting and 5 out of 9 voted to put it in Part IV).

Argument in Favour of UCC 

1. It will ensure uniformity in personal laws.
2. It will reduce the burden on the legal system (as because of the ambiguity of personal laws, judiciary is overburden and the judgement came after a very long hearing).
3. It will promote unity and national integration.
4. It will also be a major step towards gender and social justice.
5. A lot of personal laws have been unjust, unfair, discriminatory and are given protection under religious freedom. Hence, by means of UCC better laws will be enacted in a more rational way.
6. It will help to bring an end to vote bank politics on the issue of religious uniformity.

Argument against UCC 

1. In the absence of clarity with respect to what constitute UCC, there is an apprehension that it is a means to impose majoritarian culture over minorities.
2. Lack of political will due to complexity and sensitivity of the issue.
3. Change in laws in favour of women like Hindu inheritance Act has neither brought any change in the percentage of property held by women not in their status.
4. Ensuring uniformity in the personal laws goes against the essence of multi-culturalism (Salad Bowl Theory).
5. Supreme Court in TMA Pai Foundation Case reiterated that the essence of secularism in India is recognition and preservation of diversity. Hence, the idea of UCC might not be in consonance with Indian Secularism.
6. In 2018, law commission opined that UCC is neither necessary nor desirable at this stage in India.
7. Also, there is a Hindu Code bill (Hind, Sikhism, Buddhism and Jainism) which governs majority (approx 80%) of the population.

The argument that the UCC will ensure gender justice but gender justice can also be ensured without UCC. For example - declaring triple talaq illegal.

UCC deals with adoption/guardianship

Currently, there is Hindu code bill for Hindu, Sikh, Buddhist and Jains for that and for others there is Guardians and Ward Act.

Also, in 2015 Juvenile justice act was amended which made a provision of CARA (Central adoption resource agency) which provided adoption to be done by all religious communities.

Conclusion 

Democracies can be established in those countries which are multi-cultural, however efforts should be made to end the cultural exclusion, development of complementary identities and promoting unity in diversity.

National cohesion does not require imposition of common identity, instead accommodation of diversity. Hence, any decision with respect to Article 44 should be on the basis of popular consensus.

Question for practice 

A UCC is a much needed step for India to move forward in 21st century. Critically analyse.

Discuss the possible factor that inhibit the government from enacting for its citizens a UCC.

• Possible factors that inhibit the government from enacting UCC are - 
• Society is not prepared not as it is not well educated, rational, secularised.
• Religion is not only a matter of faith but also the way of life.
• Religious connotations are so enraged in our life that UCC would backfire.
• No blue prints of UCC.
• Lack of will.
• Vote bank politics.
• UCC is always seen from the prism of religion only, it is not seen with the larger perspective of equality, rationality, justice, freedom, etc.
• Lack of secularisation among the people, etc.

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