Religion, secularism, conversion and the uniform civil code
Law and Social Transformation in India · Unit II · Topic 4 of 13 · 7 min read
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Cases checked to exist. Read the judgment before quoting a holding.
Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.
1. Religion as divisive and as synthesising
Religion has produced India's composite culture (the Bhakti and Sufi traditions, shared shrines, syncretic festivals) and also its worst violence (Partition, 1984, 1992–93, 2002). Communalism, in Bipan Chandra's account, is the belief that people who follow the same religion share common secular interests opposed to those of other religious groups; it is a modern political ideology, not a survival of religion as such. The law's answer has three parts: a secular State that does not take sides; guaranteed freedom of religion for individuals and groups; and criminal law against hate (now sections 196 and 299 of the Bharatiya Nyaya Sanhita, the old sections 153A and 295A IPC), together with the Places of Worship (Special Provisions) Act 1991.
2. The constitutional scheme
- Article 25: freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality, health and the other provisions of Part III. Clause (2) saves laws regulating secular activity associated with religion and laws for social welfare and reform.
- Article 26: denominational autonomy in matters of religion.
- Articles 27 and 28: no tax for the promotion of a religion; no religious instruction in wholly State-funded institutions.
- Articles 29 and 30: minority cultural and educational rights.
- Articles 14, 15, 16: no discrimination on the ground of religion.
- Article 44: the State shall endeavour to secure a uniform civil code.
- “Secular” was added to the Preamble by the Forty-second Amendment, 1976, but the design was secular from 1950.
3. Indian secularism compared
| Model | Core idea |
|---|---|
| United States | A “wall of separation” (Jefferson); the Establishment Clause bars State support of religion (Everson v. Board of Education, 1947). |
| France | Laïcité under the 1905 law: religion confined to the private sphere; the 2004 law on conspicuous religious symbols in schools. |
| India | Equal respect for all religions (sarva dharma sambhava) and what Rajeev Bhargava calls principled distance: the State may intervene in or support religion where that advances equality and liberty. |
In S.R. Bommai v. Union of India, 1994 INSC 111, a Nine-Judge Bench held secularism to be a basic feature, and held that a State government that pursues unsecular policies can be dismissed under Article 356. In Ismail Faruqui v. Union of India, 1994 INSC 479, the Court upheld the acquisition of the Ayodhya site and observed that a mosque is not an essential part of the practice of Islam. Donald Eugene Smith's India as a Secular State (1963) is the classic study; T.N. Madan and Ashis Nandy have argued that a Western secularism does not fit a deeply religious society.
4. Conversion
The right to “propagate” was debated in the Constituent Assembly and kept. In Rev. Stainislaus v. State of Madhya Pradesh, 1977 INSC 12, the Constitution Bench held that propagation means transmitting one's religion by exposition of its tenets, not a right to convert another person, and upheld the Madhya Pradesh and Orissa Freedom of Religion Acts, which penalise conversion by force, fraud or inducement, as laws for public order. Several States have since enacted similar laws, including Karnataka in 2022, many requiring prior notice to the District Magistrate. The objections: freedom of conscience includes the freedom to change belief (Article 18 of the Universal Declaration of Human Rights; Article 18 of the ICCPR), the notice requirement chills private choice and sits uneasily with the privacy right recognised in Puttaswamy, and “inducement” is defined broadly. Conversion also affects Scheduled Caste status: the Constitution (Scheduled Castes) Order 1950 limits SC status to Hindus, Sikhs and Buddhists, which is under challenge for Christian and Muslim Dalits.
5. Personal laws and Part III
In State of Bombay v. Narasu Appa Mali (Bombay High Court, 1952) personal laws were held not to be “laws in force” under Article 13, so they escaped fundamental rights review. The Supreme Court has never squarely overruled it, but it has struck down particular rules: Shayara Bano v. Union of India, 2017 INSC 785, held instant triple talaq invalid (the majority split between Nariman and Lalit JJ., who held the practice arbitrary under Article 14, and Kurian Joseph J., who held that a practice contrary to the Quran is not part of Shariat). Parliament then made it an offence by the Muslim Women (Protection of Rights on Marriage) Act 2019.
6. Reform of family law
- Hindu law. The Hindu Code Bill, resisted in the Constituent Assembly (Legislative), led to Ambedkar's resignation in 1951; it was enacted in parts as the Hindu Marriage Act 1955, Hindu Succession Act 1956, Hindu Minority and Guardianship Act 1956 and Hindu Adoptions and Maintenance Act 1956: monogamy, divorce, daughters' inheritance. The 2005 amendment made daughters coparceners; Vineeta Sharma v. Rakesh Sharma, 2020 INSC 487, held the right arises by birth, whether or not the father was alive in 2005.
- Muslim law. Dissolution of Muslim Marriages Act 1939; Mohd. Ahmed Khan v. Shah Bano Begum, 1985 INSC 97 (maintenance under section 125 CrPC); the Muslim Women (Protection of Rights on Divorce) Act 1986, read in Danial Latifi v. Union of India, 2001 INSC 468, to require a reasonable and fair provision for the whole future, made within the iddat period.
- Christian and Parsi law. The Indian Divorce Act was amended in 2001; John Vallamattom v. Union of India, 2003 INSC 322, struck down section 118 of the Indian Succession Act, which restricted Christians' bequests for charity.
- Secular options. Special Marriage Act 1954; adoption under the Juvenile Justice Act, open to all (Shabnam Hashmi v. Union of India, 2014 INSC 111).
7. The uniform civil code
The judicial push. Shah Bano regretted that Article 44 remained a dead letter. Sarla Mudgal v. Union of India, 1995 INSC 363, held that a Hindu husband who converts to Islam to marry again commits bigamy, and urged a code. Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, 2019 INSC 1029, described Goa, whose Portuguese-era civil code applies to all, as an example.
The judicial caution. In Ahmedabad Women Action Group v. Union of India, 1997 INSC 185, the Court refused to strike down personal law rules wholesale, holding reform to be a matter of legislative policy.
The legislative position. The 21st Law Commission's consultation paper of 2018 said a uniform code was neither necessary nor desirable at that stage and preferred reform within each personal law. The 22nd Law Commission reopened consultation in 2023. Uttarakhand enacted a Uniform Civil Code in 2024, in force from January 2025, covering marriage, divorce, succession and live-in relationships for all residents except Scheduled Tribes.
How this is examined
As an essay on religion as divisive or synthesising, on secularism and the constitutional provisions, or on the UCC as a solution. Short notes: secularism, religion and law, communalism, reform of family law, “in India the State is not to take sides in matters of religion”. Always give the comparison table and Bommai; for the UCC, end with the debate box.
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