SECULARISM
The Preamble of the Indian Constitution states that India is a Secular, Democratic, Republic. This means that there is no State religion. A secular state shall not discriminate against anyone on the ground of religion. A religion is only concerned with relation of man with God. It means that religion should not be interfering with the mundane life of an individual. The process of secularisation is intimately connected with the goal of uniform Civil Code like a cause and effect. In the case of S.R. Bomai v. Union of India[1], as per the Justice Jeevan Reddy, it was held that religion is the matter of individual faith and cannot be mixed with secular activities and can be regulated by the State by enacting a law. In India, there exists a concept of positive secularism as distinguished from the doctrine of secularism accepted by the United States and the European States i.e. there is a wall of separation between the religion and the state. In India, positive secularism separates spiritualism with individual faith. The reason is that America and the European States went through the stages of renaissance, reformation and enlightenment and thus they can enact a law stating that State shall not interfere with the religion. On the contrary, India has not undergone any kind of renaissance or reformation and thus the responsibility lies on the state to interfere in the matters of religion so as to remove the impediments in the governance of the state the reason why a country like India cannot undergo a renaissance is very clear. There is prevalence of not only different religions in the country but also their own personal legislative laws. This is why chances are, that the conflicts, instead of decreasing may go on increasing and showing reverse effects on the laws that are made. For instance, a practice or a tradition in one’s personal law may be acceptable but on the other hand, it may not be acceptable to the people of other personal laws. So, when the traditions will be in practice, the nature of the conflict will transform itself from general differences to hardcore animosity. The Preamble of the Indian Constitution resolves to constitute a “Secular” Democratic Republic. This means that there is no state religion or in other words the state does not operate on any one particular religion and shall not discriminate on the ground of religion.
Article 25 and 26 of the Constitution of India as enforceable fundamental rights guarantee freedom of religion and freedom to manage religious affairs. At the same time Article 44 which is not enforceable in a court of Law states that the state shall endeavour to secure a uniform civil code in India. Uniform civil Code is the uniform method or the uniform law that governs the people as a uniform law and does not discriminate on the basis of any religion or faith. As a new principle evolves and comes into the knowledge of the people several questions arise and criticisms pave their way. In unification of the personal laws, an important question that arose was what will be the ingredients of the Uniform civil code. Since, the personal laws of each religion contain separate provisions, their unification will bring not only resentment, but also enmity in the public towards one another, therefore the Uniform Civil Code will need to bring in such laws that strike a balance between the protection of the fundamental rights and the religious principles of the different communities that exist in the country. Issues such as marriage, divorce, maintenance etc. can be matters of secular nature and law can regulate them.
Read – Article 21 : An Expansive Interpretation
PLURALISM
“Legal pluralism is concomitant of social pluralism: the legal organisation of a society is congruent with its social organisation. Legal pluralism refers to the normative heterogeneity attendant upon the fact that social action takes place in the context of multiple overlapping, semi-autonomous social fields, which it may be added, is in practice a dynamic condition.”[2]
Diversity is natural while uniformity is forced. Therefore, in the natural state, which Hobbes described as state of nature[3], people lived by their group norms, which in one or the other respect differed from group to group. But Hobbes gave a harrowing depiction of that society and developed the idea of a sovereign to whom all people expressed their allegiance in exchange for establishing order. Austin[4] used that concept to define law in top down terms that all law was direct or indirect command of the sovereign and whatever could not be so proved could not be law. Later scholars like Kelsen[5]and Hart[6] gave a bottom up description of all law by propounding that any norm or rule of conduct to be law must be capable of being traced back to a grundnorm or rule of recognition. Unless it is capable of being so traced it is not law. But from 1930s several scholars, most prominently Ehrlich[7]started questioning this notion of law. They noticed the difference between the state law either there was no reference in the state law or even if there was such a reference, people behaved differently without coming into conflict with it. People indulged in many activities by making clubs or associations or religious groups or any other informal organisation without coming in conflict with the state law. The norms set by these bodies or groups could regulate large part of their lives, sometimes even larger than regulated by state law. Initially all societies lived like that by their customary laws. Even after the establishment of the state they continued to live like that except in criminal activities for which generally the same law applied to all of them. Accordingly, they claimed that legal centralism is a myth while legal pluralism is the reality, the fact of life. In the modern history Warren Hasting’s following regulation of 1772 is cited as the first example of state recognition of legal pluralism: “In all suits regarding marriage, caste, and other religious usages and institutions the law of the Koran with respect to the Mohammedans and of the Shaster with respect to the Gentoos shall be adhered to.” Such a conception of legal pluralism perfectly fits with the social facts in India. India is known for its enormous diversity and social heterogeneity. But the same should apply to any society which is so diverse and heterogeneous. All societies are becoming more and more heterogeneous with globalisation resulting in movement of people of different backgrounds to a commonplace. Consequently legal pluralism becomes their condition too and therefore, more and more countries are now looking for solutions of legal problems that have been caused by social heterogeneity. Even in legal theory and facts of life, India is not unique in having more than one legal systems or laws operating within certain fields under the overall umbrella of a state legal system willing to accommodate its social heterogeneity.
[1] AIR 1994 SC 1918
[2]John Griffiths, “What is Legal Pluralism?” J. Legal pluralism & Unofficial L. 1, 38 (1986).
[3]Thomas Hobbes, Leviathan (Penguin Publishing Group, Delhi., 1651).
[4]John Austin, the Province of Jurisprudence Determined (John Murray, London, 2nd Edn., 1861).
[5]Hans Kelsen, a General Theory of Law and State (Harvard University Press, Cambridge., 1945).
[6]H. L. A. Hart, The Concept of law (Clarendon Law series., 1961).
[7]Eugene Ehrlich, Fundamental Principles of the Sociology of law (Transaction Publisher, New Brunswick (U.S.A) 2005).
