Democracies sometimes confront a difficult question: when religious customs, practices, or scriptures conflict with the principles of equality, liberty, and particularly gender justice, which should prevail? A secular state cannot evade this dilemma by retreating behind claims of religious neutrality, non-interference, or the guise of endless consensus-building. Unlike a theocratic state, its foremost obligation is not to preserve religious tradition but to safeguard the constitutional rights of its citizens.
This principle is particularly relevant to the contemporary debate on the future of Muslim personal law in India and the move towards a Uniform Civil Code (UCC). At its core, the debate concerns the relationship between constitutional citizenship and religion-based personal law regimes. The central question is whether individual rights should remain subordinate to religious norms or whether the Constitution should guarantee justice irrespective of faith.
The framers of the Indian Constitution had anticipated this conflict. During the Constituent Assembly debates on what became Article 44, a Directive Principle of State Policy that directs the State to endeavour to secure a Uniform Civil Code for all citizens, several members recognised that a modern democratic republic could not indefinitely sustain separate personal laws. Dr. B.R. Ambedkar argued that personal laws were not beyond legislative reform and that the State had historically intervened in matters previously regarded as religious whenever justice and constitutional principles required it.
The inclusion of Article 44 in the Constitution was therefore deliberate. It reflected the constitutional aspiration to establish a Uniform Civil Code based on equal citizenship rather than differential religious identities. Although its implementation was deferred at that time, the constitutional direction remained clear.
Critics often argue that reforming religious personal laws or introducing a UCC infringes religious freedom under Articles 25 and 26. This argument overlooks the constitutional design: religious freedom is a fundamental right but is expressly subject to public order, morality, health, and other provisions of Part 3 of the Constitution. Religious freedom cannot override the Constitution's guarantees of equality, dignity, and non-discrimination.
Indeed, India's legal-constitutional history shows that when religious customs have violated basic principles of justice, the State has intervened. The abolition of sati is a powerful example. Despite claims that it was religiously sanctioned and voluntary, its prohibition affirmed a fundamental principle: practices that undermine life, dignity, and
equality cannot be protected in the name of religion. Today, no serious argument exists for its restoration.
Similarly, the Hindu Code Bills of the 1950s reformed marriage, inheritance, guardianship, and adoption laws within Hindu personal law. These reforms faced resistance but were enacted because constitutional justice required it. The Hindu Marriage Act introduced monogamy and legal divorce, while the Hindu Succession Act significantly improved women's inheritance rights, later strengthened further in 2005. These were not merely legal adjustments but deliberate constitutional interventions prioritising equality over tradition.
Today, these reforms are widely accepted as milestones in gender justice. Few would now argue for a return to pre-reform Hindu personal law simply because it reflected religious custom. The same constitutional logic must apply across all communities.
If Hindu personal law could be reformed despite religious objections, there is no constitutional reason for Muslim personal law to remain immune from scrutiny. Equality before law cannot be selective.
The Shariat Application Act of 1937, which made Muslim personal law applicable to matters such as marriage, divorce, inheritance, and family relations, is a colonial-era statute enacted by the legislature. It is not sacred law and has been amended over time, confirming that it remains subject to legislative authority. Parliament therefore retains the constitutional power to amend or repeal it.
The Supreme Court has also reinforced this constitutional trajectory. In Shah Bano, it held that maintenance under secular law cannot be denied on the basis of personal law. More recently, in the Triple Talaq judgment, the Court struck down instant divorce not to interfere with religion but because arbitrariness violates constitutional guarantees of equality and dignity. These rulings affirm that citizenship rights precede community-based norms.
The Doctrine of Essential Religious Practices further limits constitutional protection under Articles 25 and 26 to practices deemed essential to a religion. Since courts determine what is "essential," non-essential practices remain open to state regulation and reform, preventing absolute claims of religious immunity.
Whenever a secular constitutional state must choose between religious custom and fundamental rights, the Constitution itself provides the answer. It exists to protect individuals when tradition fails to do so. Indian secularism is therefore not strict separation but principled intervention in the service of equality and dignity.
The debate over the Shariat Act and the Uniform Civil Code should not be framed as a conflict between religions. It is about ensuring that justice, liberty, equality, and dignity apply equally to all citizens, irrespective of faith or gender.
Although untouchability was once justified by some as a religious practice, the Constitution rejects it outright. Article 17 abolishes untouchability and forbids its practice, while the Protection of Civil Rights Act enforces this prohibition through legal penalties. Together, they establish that constitutional values of equality and dignity prevail over any religious or customary practice.
The exclusion of Scheduled Tribes from the Uniform Civil Code is constitutionally defensible because tribal customary laws occupy a distinct position within India's constitutional framework. Unlike religious personal laws, tribal customs are protected under the Fifth and Sixth Schedules and other special provisions aimed at preserving indigenous identity, cultural autonomy, and self-governance. These customs are not merely religious practices but integral to collective social organisation.
Moreover, many tribal customary laws have evolved through community consensus and are often more flexible and, in several cases, more gender-egalitarian than codified personal laws. Exempting tribal communities, therefore, is not an exception to equality but an affirmation of India's commitment to protecting vulnerable indigenous cultures while pursuing reform in other personal law regimes.
In the context of Muslim personal law, state intervention is neither arbitrary nor majoritarian but is triggered when certain rules produce systemic rights-violations, particularly gender-based discrimination. The constitutional threshold for such intervention is failure to meet the guarantees of equality, and dignity under Articles 14, 15, and 21. Where aspects of personal law deny women equal rights in matters such as marriage, divorce, or inheritance, they cannot remain insulated as purely religious norms and become subject to constitutional correction. The purpose of reform, therefore, is not to target a faith, but to ensure that all legal regimes within the republic conform to the basic standards of justice and equality.
(The author is a Senior Advisor at the Ministry of Information and Broadcasting, Government of India. Views are personal)
Disclaimer: These are the personal opinions of the author
