Introduction
The word “secular” was not part of the Constitution as the Constituent Assembly adopted it. It entered the Preamble through the Forty-second Amendment in 1976, and the authoritative Hindi text of the Constitution renders it as “panthnirpeksh”.1 The expression in common Hindi usage, and the one this paper uses, is “dharma nirpeksha” (Dharma Nirpekshata), not “dharma virodhi”. It signifies that the State shall not have any religion of its own, shall not identify itself with any religion and shall not discriminate against any religion; it is neither irreligious nor anti-religious. Dr. Sarvepalli Radhakrishnan expressed the same idea when he wrote that the Indian State “will not identify itself with or be controlled by any particular religion” and that “no one religion should be given preferential status”.2 In S.R. Bommai v. Union of India the Supreme Court held that secularism is a basic feature of the Constitution, which requires the State to treat all religions equally and to identify itself with none.3
The concept of secularism in India is not an imported Western concept. Its philosophical foundation lies in the Vedas. The Rigveda declares “Ekam Sat Vipra Bahudha Vadanti”: Truth is one, the wise call it by different names.4 The Maha Upanishad propounds “Vasudhaiva Kutumbakam”: the whole world is one family. Together these principles formed the doctrine of “Sarva Dharma Sambhava”, equal respect for all religions, also expressed as “Sarva Pantha Sambhava”.
Despite this Vedic foundation of secularism, the Indian legal system presents a paradox. Criminal law under the Bharatiya Nyaya Sanhita, 2023, the law of contract under the Indian Contract Act, 1872 and the law of evidence under the Bharatiya Sakshya Adhiniyam, 2023 apply uniformly to all citizens irrespective of religion, yet civil matters such as marriage, divorce, maintenance, adoption and inheritance are still governed by personal laws based on religion. A Hindu is governed by the Hindu Marriage Act, 1955 and the Hindu Succession Act, 1956; a Muslim largely by uncodified Muslim personal law; a Christian by the Indian Christian Marriage Act, 1872 and the Indian Succession Act, 1925; and a Parsi by the Parsi Marriage and Divorce Act, 1936.
This duality is a legacy of British colonial policy. The Regulations made under Warren Hastings in 1772, followed by those of 1781, provided that in matters of inheritance, marriage and religious usage each community was to be governed by its own personal law.5 The Lex Loci Report of 1840 recommended that the personal laws of Hindus and Muslims be kept outside codification, while other branches of the law were codified, as in the Indian Penal Code, 1860. After independence, the framers faced the same dilemma. The Karachi Resolution of 1931 had affirmed religious liberty and the protection of minorities and had declared that “the State shall observe neutrality in regard to all religions”.6 In the Assembly, Mohamed Ismail Sahib moved a proviso that no group, section or community should be obliged to give up its own personal law, and Naziruddin Ahmad sought to make any change in a community’s personal law conditional on that community’s prior approval.7 Dr. B.R. Ambedkar explained that “all that the State is claiming in this matter is a power to legislate” and that “[t]here is no obligation upon the State to do away with personal laws”; what he sought was to separate the secular aspects of life, such as marriage and succession, from religion.8
As a compromise, the uniform civil code was placed in Part IV as Article 44, which provides: “The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India.”9 Article 37 provides that the Directive Principles shall not be enforceable by any court, but it also declares them fundamental in the governance of the country and makes it the duty of the State to apply them in making laws.10 Seventy-five years of non-implementation therefore cannot be justified as a mere matter of policy.
Goa continues to apply the Portuguese Civil Code of 1867 under the Goa, Daman and Diu (Administration) Act, 1962; Uttarakhand has enacted the Uniform Civil Code, Uttarakhand, 2024, which received the President’s assent on 11 March 2024;11 and the 22nd Law Commission began a fresh consultation on a uniform civil code in June 2023.12 With these developments, the debate has revived on whether a uniform civil code violates Dharma Nirpekshata or completes it. This paper attempts to answer that question.
Historical evolution of personal laws in India
In pre-colonial India, law formed part of the Dharmashastra for Hindus and of the Shariat for Muslims. Custom was a dominant source of law, and no distinction was drawn between religious and secular law. During British rule, personal laws were applied by the courts with the assistance of pandits and maulvis. The Muslim Personal Law (Shariat) Application Act, 1937 made the Shariat the rule of decision for all Muslims in the matters it lists, in place of custom. Its Statement of Objects and Reasons described the status of Muslim women under “the so-called Customary Law” as “simply disgraceful” and presented the Shariat as raising them “to the position to which they are naturally entitled”.13 For Hindus, there was no comprehensive codification until after independence.
After independence, Jawaharlal Nehru and Dr. Ambedkar pressed the Hindu Code Bill, which orthodox sections strongly opposed. In 1955 and 1956 four Acts were finally enacted: the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956. The reform was far-reaching: it introduced monogamy and a right to divorce, and it gave property rights to Hindu women.
Muslim personal law remained largely uncodified, except for the Dissolution of Muslim Marriages Act, 1939, which gave Muslim women a limited right to seek divorce. Christian and Parsi laws long remained unreformed.
Reform was thus uneven. Hindu law was reformed while the other personal laws were left largely untouched, so that women of different communities came to hold unequal rights.
The Constituent Assembly debate of 23 November 1948 on draft Article 35, now Article 44, is important. K.M. Munshi argued that the question was “whether we are going to consolidate and unify our personal law in such a way that the way of life of the whole country may in course of time be unified and secular”, adding: “We want to divorce religion from personal law, from what may be called social relations or from the rights of parties as regards inheritance or succession.”14 Alladi Krishnaswami Ayyar supported Munshi.15 Dr. Ambedkar observed that India already had “a uniform code of laws covering almost every aspect of human relationship”, that marriage and succession were the only province which the civil law had not yet been able to invade, and that Muslim personal law had not in fact been immutable or uniform throughout India.16 In the debate of 2 December 1948 on draft Article 19, now Article 25, he said that he did not understand “why religion should be given this vast, expansive jurisdiction” covering the whole of life, and that religion should be defined so as not to “extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious”.17 The opponents of draft Article 35 argued that it would violate freedom of religion.18
Article 44 as a constitutional mandate: a harmonious reading
Article 44 cannot be read in isolation. It must be read harmoniously with the Fundamental Rights.
A. Article 44 and Article 14: equality
Article 14 guarantees equality before the law and the equal protection of the laws. A classification of civil rights based solely on religion lacks an intelligible differentia having a reasonable nexus with any legitimate object. Polygamy, for example, is punishable for Hindus under Section 17 of the Hindu Marriage Act, 1955 read with Section 82(1) of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 494 of the Indian Penal Code), but is permitted to Muslim men under uncodified personal law. Similarly, under Section 10 of the Indian Divorce Act, 1869 as it stood before its amendment in 2001, a Christian wife had to prove adultery coupled with cruelty or another specified matrimonial offence to obtain a divorce, while a husband had to prove adultery alone. Such distinctions violate Article 14.
B. Article 44 and Article 15: non-discrimination
Article 15(1) prohibits the State from discriminating against any citizen on grounds only of religion, race, caste, sex or place of birth. Practices such as instant triple talaq (since set aside in Shayara Bano), nikah halala and iddat, the rule of Muslim intestate succession under which a daughter receives half the share of a son, and the position of a Parsi woman who marries outside the community are open to challenge as discriminating against women. Article 15(3) allows the State to make special provisions for women, and a uniform civil code can be justified as such a special provision in the interest of gender justice.
C. Article 44 and Article 21: dignity and privacy
In Shayara Bano v. Union of India (2017), the Supreme Court set aside instant triple talaq by a majority of 3:2.19 The opinion of Nariman J., for himself and Lalit J., rested on Article 14: it held the practice manifestly arbitrary and struck down Section 2 of the 1937 Act to the extent that it recognises and enforces triple talaq. The majority did not rest its decision on the guarantee of dignity under Article 21.20 In K.S. Puttaswamy v. Union of India (2017), the Court held that privacy is part of the right to life and personal liberty under Article 21.21 Gender-discriminatory laws violate the dignity of women and deny them privacy and autonomy.
D. Article 44 and Articles 25 and 26: freedom of religion
Article 25(1) guarantees 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. Article 25(2) saves the power of the State to regulate secular activity associated with religious practice and to make laws for social welfare and reform. Marriage, divorce and succession are secular activities, though associated with religion; they are not essential religious practices. In Shayara Bano, Nariman J. found that triple talaq, being regarded as sinful by the very Hanafi school that tolerates it, formed no part of any essential religious practice, and Kurian Joseph J. held that a practice contrary to the Quran could claim no constitutional protection, since “what is bad in theology is bad in law as well”.22
The older view in State of Bombay v. Narasu Appa Mali (1952), that personal law is not “law” or “laws in force” under Article 13, has come under strain.23 In Shayara Bano, Nariman J. and Lalit J. held that the 1937 Act, insofar as it recognises and enforces triple talaq, is within the expression “laws in force” in Article 13(1) and must be tested against the Fundamental Rights. They found it unnecessary to decide whether Narasu Appa Mali is good law, while observing that it may need a re-look in a suitable case.24
E. Legislative competence: Entry 5 of List III
Entry 5 of the Concurrent List covers marriage and divorce, infants and minors, adoption, wills, intestacy and succession, and joint family and partition.25 Both Parliament and the State Legislatures can therefore legislate on these subjects. The Uttarakhand law is within the competence of the State Legislature, though a central law is desirable to avoid conflict.
Secularism versus the Uniform Civil Code: a false conflict
A. Indian secularism
The Forty-second Amendment of 1976 inserted the word “secular” in the Preamble. In Bommai, a nine-judge bench held that secularism is a basic feature of the Constitution. Sawant J. explained that the constitutional scheme prevents the State “either identifying itself with or favouring any particular religion or religious sect or denomination” and enjoins it “to accord equal treatment to all religions and religious sects and denominations”.26 Jeevan Reddy J. described secularism as “more than a passive attitude of religious tolerance” and as a positive concept of equal treatment of all religions.27 Western secularism is often described as a wall of separation between church and State; Indian secularism is a doctrine of equal respect. Dharma Nirpekshata means that the State has no dharma of its own but respects all dharmas equally: Sarva Dharma Sambhava.
B. Does a uniform civil code violate secularism?
The argument that a uniform civil code violates secularism rests on a misconception. Secularism means that law should not be based on religion. When the State applies Hindu law to Hindus and Muslim law to Muslims, it enforces religious law as State law, which is contrary to Dharma Nirpekshata. True secularism requires a common civil law irrespective of religion, just as the criminal law is common. In Sarla Mudgal, Kuldip Singh J. observed that since legislation, not religion, was the authority under which personal law had been permitted to operate, it could be “superseded/supplemented by introducing a uniform civil code”, and that successive governments had been “wholly remiss” in their duty under Article 44.28 R.M. Sahai J. considered a unified code “imperative both for protection of the oppressed and promotion of national unity and solidarity”, while cautioning that it could “concretize only when social climate is properly built up”.29
C. Article 29 and cultural rights
Article 29(1) protects the right of any section of citizens having a distinct language, script or culture of its own to conserve it. Culture cannot, however, be invoked to protect discriminatory practices that violate gender equality. A uniform civil code does not interfere with modes of worship, rituals or belief; it regulates only the secular, civil aspects of life. Comparative experience points the same way. Turkey adopted a civil code modelled on the Swiss Civil Code in 1926, Tunisia prohibited polygamy in its Code of Personal Status of 1956, and Morocco reformed its family code, the Mudawana, in 2004.30 These Muslim-majority States retained their faith while reforming their civil law.
A uniform civil code thus fulfils secularism.
Judicial trajectory towards a uniform civil code
The judiciary has repeatedly reminded the State of Article 44.
In Mohd. Ahmed Khan v. Shah Bano Begum (1985), the Supreme Court held that a divorced Muslim wife who is unable to maintain herself may claim maintenance from her former husband under Section 125 of the Code of Criminal Procedure, 1973 (now Section 144 of the Bharatiya Nagarik Suraksha Sanhita, 2023) beyond the period of iddat, and it regretted that Article 44 “has remained a dead letter”.31 In Sarla Mudgal v. Union of India (1995), a Hindu husband had converted to Islam in order to marry a second time without dissolving his first marriage. The Court held that the first marriage subsisted, that the second marriage was void and that the husband was guilty of the offence under Section 494 of the Indian Penal Code (now Section 82 of the Bharatiya Nyaya Sanhita, 2023). It also directed the Government of India, through the Secretary, Ministry of Law and Justice, to file an affidavit in August 1996 indicating the steps taken towards securing a uniform civil code.32 In John Vallamattom v. Union of India (2003), Section 118 of the Indian Succession Act, 1925, which restricted bequests by Christians for religious or charitable uses, was declared void as violating Article 14.33
In Shayara Bano (2017), instant triple talaq was challenged, and a majority of 3:2 set the practice aside. Nariman J. held it manifestly arbitrary and violative of Article 14, and Kurian Joseph J. held that what is bad in theology is bad in law as well.34
In Joseph Shine v. Union of India (2018), the Court struck down the offence of adultery, showing that the law governing marital relations must rest on equality.35
In its Consultation Paper on Reform of Family Law of 31 August 2018, the 21st Law Commission considered that a uniform civil code was “neither necessary nor desirable at this stage” and preferred reform within the personal laws.36 By a public notice of 14 June 2023, the 22nd Law Commission, noting that more than three years had passed since that paper and bearing in mind the relevance and importance of the subject and the various court orders on it, decided to solicit afresh the views of the public and of recognised religious organisations.37
The Goa and Uttarakhand models
The Portuguese Civil Code of 1867, continued in force by Section 5 of the Goa, Daman and Diu (Administration) Act, 1962, is the nearest India has to a uniform civil code.38 It applies to all residents irrespective of religion and provides for the compulsory registration of marriages, a community of property between spouses and equal succession. The Supreme Court has described Goa as “a shining example of an Indian State which has a uniform civil code applicable to all, regardless of religion except while protecting certain limited rights”, noting that spouses jointly own the assets of the marriage and that Muslim men whose marriages are registered in Goa cannot practise polygamy.39
The salient features of the Uniform Civil Code, Uttarakhand, 2024 are: a prohibition of polygamy, since neither party may have a living spouse at the time of marriage; a minimum age of marriage common to all communities, twenty-one years for men and eighteen for women, with a penalty for procuring a marriage below that age; the right to remarry a divorced spouse without any condition such as first marrying a third person, and a penalty for compelling such a condition, which ends the practice of halala; the dissolution of marriage only in accordance with the Code and on common grounds of divorce; the compulsory registration of marriages and of decrees of divorce; equal shares for sons and daughters, who are both Class 1 heirs; and the compulsory registration of live-in relationships.40
A. Critical evaluation
First, Part 3 of the Code (Sections 378 to 389) makes it obligatory for partners in a live-in relationship to submit a statement of the relationship to the Registrar. The Registrar must forward the statement to the local police station and, where either partner is below twenty-one years of age, inform the parents or guardians; and staying in a live-in relationship for more than one month without submitting the statement is punishable with imprisonment for up to three months, a fine of up to ten thousand rupees, or both.41 These provisions may violate the right to privacy and intimate association recognised in Puttaswamy42 and the protection the Supreme Court has extended to live-in relationships in D. Velusamy v. D. Patchaiammal and S. Khushboo v. Kanniammal.43 They fail the test of proportionality.
Second, Section 2 excludes from the Code the members of the Scheduled Tribes within the meaning of Article 366(25) read with Article 342, and persons whose customary rights are protected under Part XXI of the Constitution.44 This defeats uniformity. Constitutional protection for tribal customary law, such as that in Articles 371A and 371G in Part XXI, is valid, but a complete exclusion creates a classification of its own. The Goa model is more inclusive.
Third, divergent State codes will create conflicts of laws. A person married under the Uttarakhand Code who moves to another State will face a different law, which may violate Article 14 and Article 19(1)(d). A central law is therefore imperative.
Conclusion and suggestions
A uniform civil code should be presented not as a uniformity of rituals but as a uniformity of rights. It should be renamed the Bharatiya Samana Nagrik Samhita or the Gender Justice Code. The following suggestions are made.
1. Drafting should be entrusted to a broad-based committee comprising retired Supreme Court judges, the Law Commission, the National Commission for Women and women scholars of all faiths, and not to the political executive alone.
2. Implementation should be phased: first, equality within each personal law; then, unification of the core principles, retaining beneficial customs such as mehr or dower.
3. A central framework law should allow limited State variation consistent with the protection given to tribal communities under Article 371 and the related special provisions and under the Fifth Schedule.
4. Non-registration should not be criminalised, except in cases of bigamy and child marriage; it should carry only civil consequences.
5. The law should be accompanied by extensive awareness programmes, translation into all languages and consultations centred on women.
6. Provisions on live-in relationships should protect privacy and should be optional, not mandatory and penal.
Dr. Ambedkar told the Constituent Assembly that the Directive Principles were not meant to be “mere pious declarations” and that they “should be made the basis of all executive and legislative action that may be taken hereafter in the matter of the governance of the country”.45 After seventy-five years, and with the progress of gender-justice jurisprudence, the time is ripe to implement a uniform civil code through an inclusive process that embodies the true Vedic spirit of Sarva Dharma Sambhava and Dharma Nirpekshata and secures the equality of status promised in the Preamble.
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Footnotes
1. India Const. pmbl., amended by The Constitution (Forty-second Amendment) Act, 1976, § 2. The authoritative Hindi text of the Constitution, published under Article 394A, renders “secular” as “panthnirpeksh”.
2. S. Radhakrishnan, Recovery of Faith 202 (1955), quoted in S.R. Bommai v. Union of India, AIR 1994 SC 1918 (Ahmadi, J.).
3. Bommai, supra note 2 (Sawant, J.; Jeevan Reddy, J.).
4. Rigveda 1.164.46.
5. Sarla Mudgal v. Union of India, (1995) 3 SCC 635 (Kuldip Singh, J.).
6. Bommai, supra note 2 (Jeevan Reddy, J.) (citing M.C. Setalvad’s account of the Karachi Session).
7. 7 Constituent Assembly Debates (Nov. 23, 1948) (India) (amendments to draft art. 35 moved by Mohamed Ismail Sahib and Naziruddin Ahmad), reproduced in Shayara Bano v. Union of India, (2017) 9 SCC 1 (Khehar, C.J.).
8. 7 Constituent Assembly Debates (Dec. 2, 1948) (India) (statement of Dr. B.R. Ambedkar on draft art. 19), ¶ 7.65.178, https://www.constitutionofindia.net/debates/02-dec-1948/.
9. India Const. art. 44.
10. India Const. art. 37.
11. The Uniform Civil Code, Uttarakhand, 2024, Act No. 3 of 2024, Uttarakhand Gazette, Extraordinary, Mar. 12, 2024 (assented to by the President on Mar. 11, 2024).
12. Law Commission of India, Public Notice: Uniform Civil Code (June 14, 2023), https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbdf/uploads/2023/06/2023061446.pdf.
13. The Muslim Personal Law (Shariat) Application Act, 1937, Statement of Objects and Reasons, reproduced in Shayara Bano, supra note 7 (Khehar, C.J.).
14. 7 Constituent Assembly Debates (Nov. 23, 1948) (India) (statement of K.M. Munshi), reproduced in Shayara Bano, supra note 7 (Khehar, C.J.).
15. 7 Constituent Assembly Debates (Nov. 23, 1948) (India) (statement of Alladi Krishnaswami Ayyar), reproduced in Shayara Bano, supra note 7 (Khehar, C.J.).
16. 7 Constituent Assembly Debates (Nov. 23, 1948) (India) (statement of Dr. B.R. Ambedkar), reproduced in Shayara Bano, supra note 7 (Khehar, C.J.).
17. 7 Constituent Assembly Debates (Dec. 2, 1948) (India), supra note 8, ¶ 7.65.178.
18. 7 Constituent Assembly Debates (Nov. 23, 1948) (India), supra note 7 (statements of Naziruddin Ahmad and B. Pocker Sahib Bahadur).
19. Shayara Bano, supra note 7 (Order of the Court).
20. Id. (Nariman, J., for himself and Lalit, J.).
21. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
22. Shayara Bano, supra note 7 (Nariman, J.); id. (Kurian Joseph, J.).
23. State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84.
24. Shayara Bano, supra note 7 (Nariman, J.).
25. India Const. sched. VII, list III, entry 5.
26. Bommai, supra note 2 (Sawant, J.).
27. Id. (Jeevan Reddy, J.).
28. Sarla Mudgal, supra note 5 (Kuldip Singh, J.).
29. Id. (Sahai, J., concurring).
30. See Sarla Mudgal, supra note 5 (Sahai, J., concurring) (noting that Syria, Tunisia, Morocco, Pakistan and Iran, among other Muslim countries, had codified their personal law and prohibited or severely restricted polygamy).
31. Mohd. Ahmed Khan v. Shah Bano Begum, AIR 1985 SC 945, (1985) 3 SCR 844, 866.
32. Sarla Mudgal, supra note 5 (Kuldip Singh, J.).
33. John Vallamattom v. Union of India, AIR 2003 SC 2902.
34. Shayara Bano, supra note 7 (Order of the Court; Nariman, J.; Kurian Joseph, J.).
35. Joseph Shine v. Union of India, (2019) 3 SCC 39.
36. Law Commission of India, Consultation Paper on Reform of Family Law (Aug. 31, 2018).
37. Law Commission of India, Public Notice, supra note 12.
38. The Goa, Daman and Diu (Administration) Act, 1962, § 5(1) (India).
39. Jose Paulo Coutinho v. Maria Luiza Valentina Pereira, (2019) 12 SCALE 338.
40. The Uniform Civil Code, Uttarakhand, 2024, supra note 11, §§ 4(i), 4(iii), 6, 8, 25, 29, 30(2), 32(1)(i), 32(1)(iii), 51, 378 & sched. 2 (as enacted). Section 32(1) was substituted by Uttarakhand Act No. 2 of 2026, under which a marriage below the minimum age is punishable under § 32(1)(ii) by reference to the Prohibition of Child Marriage Act, 2006, and compelling a condition before remarriage under § 32(1)(v).
41. Id. §§ 378(1), 385(1), 387(1). Section 385 was amended, and sub-sections (4) to (6) were added to Section 387, by Uttarakhand Act No. 2 of 2026.
42. Puttaswamy, supra note 21.
43. D. Velusamy v. D. Patchaiammal, (2010) 10 SCC 469; S. Khushboo v. Kanniammal, (2010) 5 SCC 600.
44. The Uniform Civil Code, Uttarakhand, 2024, supra note 11, § 2; India Const. arts. 342, 366(25).
45. 7 Constituent Assembly Debates (Nov. 19, 1948) (India) (statement of Dr. B.R. Ambedkar on the Directive Principles), ¶ 7.56.26, https://www.constitutionofindia.net/debates/19-nov-1948/.