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The Legislative and Judicial Dilemma in Harmonising Religious Freedom and Secularism in India

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The Legislative and Judicial Dilemma in Harmonising Religious Freedom and Secularism in India AEGAEUM JOURNAL ISSN NO: 0776-3808 The Legislative and Judicial dilemma in Harmonising religious freedom and secularism in India Dr. Vipin Malhotra Associate Professor, Department of Political Science, Sri Aurobindo College, University of Delhi, New Delhi, India. Mobile: 98688177335 E-mail: [email protected] B.A( Hons), M.A, M.Phil, PhD in Political Science, LLB, LLM Abstract The democratic aspirations of the people of India were cherished at the dawn of independence. India embarked upon a constitution for self which could accommodate equality of law, freedom of religious denominations,and achieve fraternity amongst its diverse demography. Aspiration of a secular polity was enunciated to realise these goals. The conflicts between different kind of religious freedoms and the notion of secular polity soon falsified the legal perception of equality and brotherhood in the society at large. Type of secularism which Indian legislature contemplated proved to be a utopia, infact, a mirage which only satisfied the hunger of unscrupulous power grabbers. Who adopted the policy of appeasement to muster the votes of illiterate masses on the religious sentiments. The given article deals at length the various incidence which damaged the secular fabric of India in the name of personal law. Superstitious believes and practices. Despite, the progressive attitude of the judiciary, the legislature could not keep itself away from luring itself from using the masses on religious sentiments for coming to power, despite, several landmark steps to achieve a secular polity. The BJP government has also not been able to provide a uniform civil code to its people. Through its efforts to abolish Article 370, criminalising triple Talaq, and pass Citizenship Amendment Act, 2019 can not be overlooked the secular polity demands yet much more than that. If India Aspires for a genuine secular polity, then it has to think of curving religious freedom. Keywords Constitution of India,gender equality, Personal law, Secularism. The Legislative and Judicial dilemma in HarmonisiHarmonisingng religious freedom and secularism in India Volume 8, Issue 10, 2020 http://aegaeum.com/ Page No: 65 AEGAEUM JOURNAL ISSN NO: 0776-3808 Introduction The Indian Constitution (26 th January 1950) was enforced to achieve the defined goals in letter and spirit to restore its age-old glory. The democratically elected Legislatures, responsible Executive and independent Judiciary, entrusted the job of building India into the Sovereign Democratic Republic with secular credentials enshrined in the fundamental rights and directive principles of the state policy. Over time, the constitutional system of India has come under severe strains. Three organs of the state could not bear the influence of the religious sentiments of the people. The electoral politics corrupted by the communal menace has not been able to perform its legislative functions in tune with the demand of a secular society. Undue stress on religious sentiments by the legislators has affected the working of the Judiciary, posing a threat to the mandates of the constitutional system of India. The various flaws in the constitution, coupled with the lack of sincerity or its promulgation, has virtually eroded the rule of law, especially in the sphere of establishing India as a secular state. Upendra Baxi, an eminent legalist, while talking about the status of the Indian constitution, maintained that like the disputed structure of Ayodhya, the Indian constitution also requires a “Kar Seva” to bring Indian political system back to its track. It is important to remember that the process of secularisation was powerfully helped by the elaboration of natural law instead of law derived from the sanctity of religion. Amid this process, there emerged the Modern Nation-State, the question arose and indeed arose in our country with a particular sense of legitimacy about the nature and character of our state. Is the state an instrument for enforcing divine law? Alternatively, is state an instrument for the enlargement and protection of the totality of national interest, transacting religious or denominational divisions? It is from these considerations that there arose the need for the state, confining itself to the affairs of this world and thus being secular rather than being an instrument of any particular faith or dogma. It may be noted that the concept of secularism in India arose to achieve two-fold motives. Firstly, it has come to impart and teach scientific temperament and modernize society. Secondly, the multireligious nature of Indian culture demanded that along with modernization, the society should have some force to harmonise it. However, the process of secularisation could hardly satisfy any. Personal Law And Status of Women: Demolishing the Fantasy of equality of or before Law The Rule of Law, on which the concept of secularism rests, has come under the spell of various religions, which are continuously fondling with the process. In India, there are laws and procedures relating to crime, laws relating to evidence, laws governing the transfer of property, and taxation. All these laws concerning a variety of affairs could not strengthen the secular legal system. Personal became more political. If the words secular, secularism and secularisation are to go understood as part and parcel of a universal process of secularisation of the human mind, then we have inflicted enormous damage on the nation-building process in India. An unacceptable and false translation of the words “secular” and “secularism,” i.e., which equates to the doctrine of religious tolerance, in words like Dharma-Nirpeksh and Sarva Dharma Sambhava have generated high schizophrenia in our politics. The Jammu, Kashmir, Punjab and other parts of the country, where, still religious animosity exists, are a glaring example of this phenomenon, where all political parties make their electoral calculations in terms of Hindu, Muslim, Sikh, Christian, etc. [1] The quest to preserve self-identity on the religious ground becomes a logical result of it. The Uniform Civil Code, in this respect, has sparked off much controversy since the time of our constitution- making. The prerequisite of a secular state is that all citizens are governed not only by a Common Criminal Code but also by a Common Civil Code. Different Personal Laws perpetrate not only discrimination on the grounds of caste, sex, creed, and even religious identities, which is not in keeping with the secular ethos. All citizens should have a collective identity, a national identity. It is only when this sense of collective identity develops that secularism will be useful in making the nation secure with a viable polity, based on national interest. It is also argued that under a secular constitution, everyone should be equal before the law. However, if personal laws are allowed to be practised, not only would there be sexual inequality, but also the women of one Volume 8, Issue 10, 2020 http://aegaeum.com/ Page No: 66 AEGAEUM JOURNAL ISSN NO: 0776-3808 community would become more privileged than the women of another religious community. The following points establish such inequalities: (1) The Muslims are polygamous, but the Hindus, Christians, and Parsis are monogamous. (2) The Muslims are allowed extra-judicial divorce, but the Hindus, Christians, and Parsis can affect divorce only through court. (3) A wife married under the Muslim law could be divorced by the husband at his whim or pleasure, but a wife married under the Hindu, Christian, or the Parsi law and be divorced by the husband only on specific grounds specified in those laws. (4) Under the Muslim law, husband apostasy from Islam results in the automatic dissolution of a Muslim marriage, under the Hindu law, apostasy from Hinduism by either of the spouses does not affect a Hindu marriage. However, it confers on the non-apostate spouse a right to sue for divorce. Under the Parsi law, too, any spouse ceasing to be a Parsi Zoroastrian would only entitle his or her spouse to sue for dissolution but would not otherwise affect a Parsi marriage. Under the Christian law, a change of religion by one or the other spouse does not affect a Christian marriage except where the apostate husband has married again, in which case the wife would be entitled to sue for divorce. (5) Under Muslim law, a divorced wife is not entitled to any maintenance except during the period of Iddat. Still, another personal I laws allow divorce as also post-divorce permanent alimony. (6) Under the Muslim law, the daughter inherits half the share, but under the Hindu law, a daughter shares equally with a son. (7) Under Muslim law, a person cannot dispose of more than one-third of his property by will, but other personal laws do not impose such limitations. (8) The Muslim law confers on a person the right to pre-empt any property in respect of which he is a co-sharer or a participator in appendages or immunities or an adjoining owner. Still, other personal laws do not confer any such right. The above discriminations militate against the spirit of a secular constitution and hence must be removed by enacting a Common Civil Code. It is high time already, and 73 years have passed since our country became independent and 70 years since our constitution was promulgated. However, there is no sign of the enactment of a Common Civil Code. [2] The efforts to achieve a Uniform Civil Code has been frustrated by the fundamentalist, and leaders having secular credentials have not been able to generate much will power in this regard. The history of the Indian state is full of such instances. One such blow was heralded on Indian secularism in 1985, in the Shah Bano Judgement. Shah Bano Case Shah Bano was a Muslim woman of 73 years, who had filed a case under section 125 of the Criminal Procedure Code for maintenance against her husband from whom she was separated.
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