Page 2151 - 2164 DOI: https://doij.org/10.10000/IJLMH.

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INTERNATIONAL JOURNAL OF LAW

MANAGEMENT & HUMANITIES
[ISSN 2581-5369]
Volume 6 | Issue 2
2023
© 2023 International Journal of Law Management & Humanities

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Legal Pluralism and the Politics: A Study

KETAN DAYAL1

ABSTRACT
Pluralism has always been prevalent in India. It has been a center of symbiotic coexistence
of varied kinds of life in terms of social, cultural, religious, and legal phenomena ever since
the British-run states and the princely state came under the single flag of being recognised
as "India." The very practical methods of the land have been the acceptance and coexistence
of these varied populations. The term "legal pluralism" refers to the nation's faith-based
pluralist system, which aims to incorporate long-standing, widely accepted religious or
communal customs. It refers to the various sources of law that can be recognised as both
state and non-state in order to meet the demands of various communities, such as the
personal laws of various communities living in India.
At this point in the concept of legal pluralism's development and acceptance, it is possible
to express the hope that growing awareness of its benefits will ultimately help to improve
our overall understanding of law and the interrelationship between law and society in all
legal systems, whether or not they have a colonial history.
We might also define legal pluralism as an approach for incorporating the demands of every
community into the legal framework. Hindu law is specifically used to resolve family issues
and is a component of the larger Indian legal system. Since it covers Sikhs and Buddhists,
it is arguably more inclusive than Mohammedan law. The Indian Divorce (Amendment) Act
2001's provisions for Christians on divorce, separation, maintenance, and adoption were
changed to more closely resemble those in Britain as Christian Law has come to be
recognised as a plural jurisdiction since the 2000s, resulting in a highly interconnected
system of laws. In this paper, we will also compare the idea of a uniform civil code to the
current system.
Keywords: Legal, Pluralism, Religion, System, Law.

I. INTRODUCTION
(A) Legal Pluralism

A crucial aspect of the Indian legal system is legal pluralism, which is basically the existence
of multiple legal systems inside the same state. We might also define legal pluralism as an
approach for incorporating the demands of every community into the legal framework. This
idea has also undergone internal conceptual evolution in recent years, as seen by the use of

1
Author is a LL.M Student at Chanakya National Law University, India.

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terms like "weak legal pluralism" and "strong legal pluralism."2; There are ongoing efforts to
find classifications for identifying legal systems based on different understandings of law, such
as official law, state law, modern law, unofficial law, folk law, people's law, tribal law,
indigenous law, nonstate law, and customary law. "Classic legal pluralism" and "new legal
pluralism" indicate realising about the inadequacy of hitherto accepted terms such as
"customary law" to denote the legal phenomena of the "indigenous" societies Perhaps, some of
the early efforts to promote legal pluralism that now seem constrictive served as a foundation
for effective application of the idea. These provided the foundation for the development of
certain perceptive theories, like the "intercultural approach to law" and "critical legal
pluralism".3 They have led scholars to suggest refined and complex methodological approaches
in order to get a better and wider understanding of the legal phenomena of different societies.

At this point in the concept of legal pluralism's development and acceptance, it is possible to
express the hope that growing awareness of its benefits will ultimately help to improve our
overall understanding of law and the interrelationship between law and society in all legal
systems, whether or not they have a colonial history. The formal/official admission in the
academic community that law is what various groups or societies take to be law will have
particular significance for nations with a colonial background, it can be said more confidently.
One can only hope that this acknowledgment would focus scholarly efforts on combating the
elitist inclinations that are all too common and have portrayed indigenous complex legal
systems as "frustrating, complicated, and obstructive to development." In order to achieve
"modernization," perhaps strategies should be developed for the resurgence of indigenous
activities that have either been suppressed or have been derecognised, criminalised, or just
neglected earlier as a result of colonisation and now in the postcolonial era. Genuine interest in
various indigenous ways of life on their own terms, rather than for the goal of altering them in
accordance with certain predefined ideals of "progress," can be anticipated to result from a
sincere and open acknowledgement of legal pluralism. It may be feasible to reclaim people's
control over their own lives, lessen communities' reliance on the all-powerful state, and find
ways to relegate the state and its laws to their supervisory and facilitating functions rather than
giving them an autonomous existence apart from society.

(B) Constitutional Pluralism

The roots of legal and constitutional pluralism are unrelated, despite their similar name and the

2
John Griffiths, What is Legal Pluralism?, 24 Journal of Legal Pluralism and Unofficial Law, 1-55, (1986)
3
Christoph Eberhard, LEGAL PLURALISM IN INDIA : AN INTRODUCTION, (2005)

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close relationship between their subject topics. While constitutional pluralism developed in
reaction to two other separate types of concerns, which are explored below, legal pluralism
emerged as a field of anthropological and sociological study regarding the nature of law. The
forefathers of constitutional pluralism have not focused on definitional issues. They haven't
mixed up the concept with assertions about the descriptive neutrality of constitutional pluralism
either. The albatross' curse is so abated. In order to emphasize constitutional pluralism's
primarily normative nature, we briefly discuss the two sorts of concerns that gave rise to it in
this section.

Integration of existing constitutional orders:

Constitutional pluralism emerged primarily as an attempt to explain how several constitutional

regimes might coexist, particularly in the context of integration in the European Union. The
Westphalian constitutional model, on which the constitutions of European states are founded,
was considered to play a significant role in earlier writing on constitutional orders in the EU
(and practically everywhere else, in fact). These conventional interpretations of the Westphalian
model, however, have disintegrated in the face of European integration, which upends the
formerly distinct constitutional hierarchy. The Westphalian paradigm, which is based on the
notion that distinct sovereign nation-states are superior, pays little attention to creating
conceptual frameworks for multi-national scenarios like those that are developing within the
EU. Hence, the model has shown to be unable to offer a conceptual framework for
comprehending the problems caused by the EU's integration or for offering solutions to the
ensuing conflicts.

In this respect, constitutional pluralism offers an alternative to the Westphalian model.

Constitutional pluralists begin with the idea that there are various competing constitutional
orders that clash on certain topics. The problem for pluralists is to create a conceptual,
constitutional framework that will enable multiple orders to work together to accomplish shared
objectives. Many constitutional pluralists who take up the topic are obsessed with issues of
plural and competing constitutional authorities (not unlike legal pluralists). A solid theory of
constitutional pluralism must identify means to fairly decide these claims when different
authorities offer conflicting legal recommendations. The conflicting authorities approach is one
definition of constitutional pluralism.4

4
P Ishwara Bhat, CONSTITUTIONALISM AND CONSTITUTIONAL PLURALISM, at 115

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II. LEGAL PLURALISM- WESTERN PHILOSOPHY

(A) Understanding Pluralism in terms of ‘Secularism’ in the Western Constitutional
Philosophy

Secularism is typically what is meant when pluralism is discussed in western civilization.

Secularism, in its most basic sense, involves the separation of religion and state. Political
theory's notion of a secular state is a relatively recent development. But the history of
Christianity and its interactions with the state can be used to explain the idea of a secular state.
The phrase emphasises that there should be a "clear separation of the spiritual and temporal
authorities," and that civil and natural law, rather than any religious organisation or divine law,
should serve as the foundation for authority and administration. The renowned Catholic thinker
Marsilius of Padua, who lived in the fourteenth century, was one of the first to formulate the
idea of a secular state. In his treatise Defensorpacis (1324) he rejected the idea of a Christian
state and argued that "the state be based upon law inherent in nature, and that the church should
not have jurisdiction over the state." Marsilius established the idea of a secular state by arguing
that citizens' rights are independent of the religion they practise and that no one should be
imprisoned because of their beliefs. Although his progressive ideas were unpopular at the time,
they had an impact on the Protestant Reformation and the modern constitutional state.

(B) Further Reformation in concept of Pluralism and Secularism

During the Reformation movement, a new notion of church—the Corpus Christi—was

established. It championed the idea of complete separation between the church and the state and
condemned the use of compulsion in religious affairs. Yet, Rhode Island's "lively experiment,"
led by Roger Williams, saw the first application of the concept of a secular state, in which
everyone was granted full political rights regardless of their religious convictions. All religious
topics were therefore removed from the purview of civil authority in order to further the idea of
"for the good of the entire." Later, John Locke's writings conceptualised the idea of separating
church and state into a political doctrine based on the natural rights theory, in which he argued
that because all people have the same fundamental human rights to life, liberty, and property,
the legitimacy of the state derives from the consent of the governed in accordance with the terms
of the social contract. All laws are carried out primarily for the benefit of the general population.
The American founding fathers were greatly influenced by Locke's theories, and they included
similar principles in their Declaration of Independence. The United States is the first country in
modern history to adopt the secular state system, in which all religions are treated equally before
the law and where the government has no authority over religious matters. All religious groups

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are treated as private voluntary associations, and no faith is given special status.The US
Supreme Court in Watson v. Jones5 held that the law knows no heresy, and is committed to the
support of no dogma, the establishment of no sect’. The concept of secularism has become part
of modern constitutional practice, but it was not until the twentieth century that the democratic
states of Western Europe adopted the secular ethos in their state functioning and governance.6

III. LEGAL PLURALISM- INDIAN PHILOSOPHY AND POLITICS

(A) Pluralism in India: Historical Philosophy

The word "India" has many different connotations. In the context of contemporary politics, it
refers to the nation that attained independence in 1947 with a clear political boundary. In the
past, it was either referred to as the region beyond the Hindukush mountains or the region where
the Sindhu River flows (at present referred to as River Indus). In a sociocultural context, it was
referred to as Hindustan, designating the inhabitants of the Indian subcontinent as Hindus.
Throughout millennia, individuals from many regions of the world have settled in the Indian
subcontinent as invaders, traders, refugees, religious propagandists, etc., bringing with them
their own culture, language, and religion. India has long been a "melting pot" of religious,
linguistic, and cultural diversity, which has resulted in the development of a distinctive cultural
fabric built on multiculturalism and pluralism. The principles of sarvadharmasambhava, or that
all religions lead to the same place, and vasudaivakutumbakam, or that the entire universe is
one family, served as the foundation for ancient Indian philosophy. In India, these intellectual
ideas now have legal standing.

(B) Secularism in the Indian Context of Multiculturalism and Pluralism

In the West, secularism developed as a fundamental component of constitutional principles.

After gaining its independence in 1947, India enacted a constitution that was founded on liberal
democratic ideas and principles, but it also made an effort to contextualise and integrate these
values within the larger context of its multilingual, multicultural, and multireligious society.

The necessity to integrate many interest groups within a single legal framework was one of the
issues the Constituent Assembly faced while writing the Indian Constitution. The majority, led
by the Indian National Congress, separatists, led by the Muslim League, and the 584 separate
princely states made formed the three main groups. It was vital for the Drafting Committee to
bring these many groups together into one nation-building process by guaranteeing that the fear

5
80 U.S. 679 (1871)
6
Yashomati Ghosh, Secularism, Multiculturalism and Legal Pluralism: A Comparative Analysis Between the
Indian and Western Constitutional Philosophy, (2020)

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of majoritarianism was diminished by acknowledging and defending the features of plurality

and diversity through state institutions.

After lengthy deliberations, the Constituent Assembly came to the conclusion that the state must
equally safeguard all religions and respect cultural and religious diversity. Parallel to this, it was
acknowledged that neither a single official state religion nor a rigid separation of state and
religion was possible. Hence, India is acknowledged as a sovereign nation with a socialist,
secular, democratic, and republican polity in the Preamble of the Indian Constitution. A 1976
amendment to the Constitution established secularism as a goal. Secularism has been
recognized as a basic and integral part of the Constitution by the Indian Supreme Court in the
S. R. Bommai7 case and is deemed to be beyond the scope of any amendment. Although the
term "secularism" was not specifically mentioned in the initial formulation of the Constitution,
its objectives were fully incorporated as a part of the freedoms and rights of individuals. Article
14 forbids the state from depriving "to any individual equality before the law or the equal
protection of the laws," and Articles 15 and 16 forbid the state from discriminating against any
citizen on the basis of religion or sex, including while offering employment to such citizen. The
scope and boundaries of India's right to religious freedom are outlined in Articles 25 to 28.
Article 25 guarantees everyone, regardless of nationality, the freedom to profess, practise, and
propagate their religion, subject to public order, morality, and health, as well as other
fundamental rights. Every religious denomination has been granted the right to construct,
administer, and manage institutions for religious and charitable reasons.

Parallel to this, the Constitution ensures that no one will be forced to pay a tax for religious
purposes or receive religious instruction in any government-sponsored educational facility. As
a result, the Indian model of secularism differs significantly from secularism as it is understood
in the West.

S. Radhakrishnan, former president of India, in his book Recovery of Faith had described the
concept of Indian secularism as follows:

“When India is said to be a Secular State, it does not mean that we reject the reality of an unseen
spirit or the relevance of religion to life or that we exalt religion. It does not mean that secularism
itself becomes a positive religion or that the State assumes divine prerogatives …. We hold that
not one religion should be given preferential status…This view of religious impartiality, or
comprehension and forbearance, has a prophetic role to play within the National and

7
S.R. Bommai v. Union of India, 1994 SCC (3) 1

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International life.” 8

In a similar vein, Mahatma Gandhi had said, "I do not anticipate India of my dreams to develop
one religion, i.e., to be entirely Hindu, wholly Christian, or wholly Muslim, but I want it to be
wholly tolerant, with its religions working side-by-side with one another."

The idea of secularism based on sarvadharmasambhava indicates not only that the state should
not interfere with religions, but also that all religions should receive equal treatment and support
in order to achieve parity.

(C) Freedom of Religion Vis-à-Vis Pluralism and Secularism in the Indian

Constitution

The universal ideals of religion acceptance, tolerance, and respect have been linked to the Indian
viewpoint on "secularism." Secularism has evolved into a component of national identity that
promotes the notion that India is more than just a territorial identity; rather, it is a humanistic
ideal that embraces all inhabitants of her territory, regardless of their differences in language,
religion, or culture.

The ideal of secularism is a reflection of the diverse Indian culture and encompasses all religious
and cultural groups who have an equal right to practise their faith and to receive instruction in
their mother tongue. The legal definition of a "secular" state in India does not imply a strict
separation of the state from religion; rather, it means that all religions are protected equally, that
no one religion is upheld as the official state religion, and that all religions are treated with
neutrality and impartiality. The government's provision of Haj subsidy, facilitation of the
staging of religious festivals like Kumbh Mela, organisation of religious pilgrimage to Kailash
Mansarovar Yatra, etc. are instances of how this special idea of secularism is actually put into
practise. The constitutional moral principles of liberty of belief, faith, and worship, as well as
the rights granted under the freedom of religion, contain the fundamental elements of
secularism. The Supreme Court has made attempts to define and explain the idea of
"secularism" as it applies to India in a number of judgements.

In the early case of Sardar Taheruddin Syedna Saheb v. State of Bombay9 describing the secular
nature of the Indian Constitution Ayyangar J. observed that Articles 25 and 26 embody the
principles of religious toleration that has been the characteristic feature of Indian civilization
from the start of history. The instances and periods when this feature was absent being merely
temporary aberrations. Besides, they serve to emphasize the secular nature of the Indian

8
S. Radhakrishnan, Recovery of Faith (George Allen & Unwin, 1956)
9
AIR 1962 SC 853

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democracy which the founding fathers considered to be the very basis of the Constitution. In
the case of Kesavananda Bharati v. State of Kerala,10 secularism was recognized as part of the
basic structure of the Constitution. This was explained in Ahmedabad St. Xaviers College
Society v. State of Gujarat11 wherein it was stated that ‘secularism in the context of our
Constitution means only an attitude of live and let live developing into the attitude of live and
help live’. The modern Indian concept of secularism was further clarified in Ziyauddin
Burhanuddin Bukhari v. Brijmohan Ram Das Mehra.12

In the leading case of S. R. Bommai v. Union of India,13 according to the Supreme Court, the
term "secularism" does not suggest that the state should be opposed to religions; rather, it
suggests that it should act neutrally towards all religions. According to Ahmadi J., secularism
is founded on the "principles of conciliation and tolerance." Every person is free to practise and
profess their own religion, but when they respect the freedom of others to practise their beliefs,
they remain secular citizens. If religion were to be exploited for political reasons and promoted
by political parties in this context, the ideals of secularism would be compromised. Politics and
religion should be put aside to ensure proper government. The state must enact secularism
through legislation or executive orders. Similarly, it is the responsibility of the court to make
sure that no political party compromises secular ideals.

In the subsequent case of Ismail Faruqui v. Union of India,14 the Court attempted to provide an
Indianized definition in contradistinction to the Western concept of secularism by referring to
ancient Indian texts such as Yajur-Veda, Atharva-Veda and Rig-Veda and gave formal
recognition to the concept of sarvadharmasambhava, largely based on the notions of tolerance.

In the case of Manohar Joshi v. Natin Bhaurao Patil,15 the Court held that the concepts such
Hinduism and Hindutva were not necessarily anti-secular and emphasized on the notions of
tolerance. It clarified that ‘the words “Hinduism” or “Hindutva” are not necessarily to be
understood and construed narrowly, confined only strict Hindu religious practices, unrelated to
the culture and ethos of the people of India, depicting the way of life of the Indian people’.16 In
A. S. Narayana Deekshitulu v. State of A.P.,17 Ramaswamy J. quoted from the ancient scriptures
to explain the social and religious plurality existing in the Indian society:

10
(1973) 4 SCC 225
11
AIR 1974 SC 1389
12
AIR 1975 SC 1778
13
1994 SCC (3) 1
14
AIR 1995 SC 605
15
AIR 1996 SC 796
16
AIR 1996 SC 796
17
AIR 1996 SC 1765

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The term "Dharma" or "Hindu Dharma" refers to upholding, nourishing, or supporting that
which maintains social order, upholds societal stability, and promotes the general progress and
well-being of humanity; Dharma is anything that contributes to the accomplishment of these
goals. It is Hinduism, or "Sarwa Dharma Sambhava," in the end. Dharma is that which one has
approved for oneself or good consciousness or which springs from due consideration for one's
own happiness as well as the welfare of all beings free from fear, desire, and disease, cherishing
good feelings and a sense of brotherhood, unity, and friendship for the integration of Bharat.

Consequently, it can be said that the Indian judiciary has always considered multiculturalism
and legal pluralism as the key tenets of defining the concept of secularism in India. The
fundamental tenets of secularism, which support the concepts of religious tolerance and unity
in variety, are rooted in the antiquated Indian philosophy of sarvadharmasambhava. This
philosophy also underlines the distinctiveness of Indian secularism from Western political
thought.

IV. UNIFORM CIVIL CODE

A uniform civil code (UCC), which would enable all the many religious norms to be merged
and a single religious code of practise to be developed, is currently in high demand. According
to Article 44 of the Chapter on Directive Principles of State Policy, the Constitution requires
the implementation of UCC. In the case of Sarla Mudgal v. Union of India,18 the Supreme Court
had also advocated for the inclusion of UCC as part of secularism doctrine.

The current push for UCC implementation stems from the desire to achieve gender equality by
embracing the "best traditions and harmonising them with the modern times." But, a realistic
evaluation of Indian tradition would suggest that, given the current diversity in society, any kind
of religious unity is difficult to accomplish. Due to the diversity of Hindu laws, customs, and
traditions, it is highly challenging to create a single legal system that will be accepted by the
whole Hindu community throughout the entire nation. Similar to this, there are various
variations in the applicable personal laws among Muslims.

The constitutional duty of UCC can only be carried out if an attempt is made to forge a
consensus among the members of various communities, preventing coercion in the name of
uniformity. UCC will remain a distant ideal until efforts are taken to build an atmosphere of
equality without sacrificing on the social, cultural, linguistic, and religious plurality. From the
standpoint of sarvadharmasambhava, the genuine application of secularism is to put all

18
(1995) 3 SCC 635

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members of various religious communities on an equal basis. The Indian concept of

multiculturalism, legal pluralism, and secularism should serve as the guiding light until a
consensus on the UCC's standards and values is reached so that every person of every religion
is treated equally with respect and dignity and the constitutional obligation to "promote
harmony and the spirit of common brotherhood among all the people of India transcending
religious, linguistic, regional, or sectional diversities" is properly carried out.19

(A) Uniform Civil Code: Historical Background

India is a secular nation with a single citizenship, and the government ensures that everyone of
us has certain fundamental rights that are upheld equally without regard to our race, religion,
sex, caste, or place of birth. Therefore, a just and equal state, as envisioned in the Constitution,
requires uniformity of laws.

Pandit Nehru was once questioned by the French author Andre Malraux about his greatest
obstacle after gaining freedom. "The only way to establish a just state is via force," Nehru
retorted. attempting to create a secular state in a religious environment. India was largely feudal,
ignorant, and weak at the time of its independence, and the horrors of partition were still vivid
in people's minds. Being a revolutionary document, the constitution destroyed the ancient pillars
of Indian society, uprooting the caste system and making crimes untouchable; establishing
equality and the rule of law in a society where everyone had equal rights. In contrast, faith plays
a significant part in dictating the rules that apply to its believers in a multicultural and
heterogeneous society like India, and it was the responsibility of the constitutional framers to
establish a civil code for the nation in Part IV of the Constitution. This idea was supported by
Pandit Nehru and Dr. B.R. Ambedkar, India's first law minister, who all considered its adoption
as a confirmation of India's commitment to modernity and secularism. According to Article 44,
“The state shall endeavor to secure for the citizens a uniform civil code throughout the territory
of India.”

Particularly among Muslim members and Orthodox Hindus, who saw these proposed reforms
as an outright repeal of Hindu tradition and an inappropriate interference with caste rules and
traditional gender ties, this article sparked a great deal of resentment and protest during the
constituent assembly debate. Their argument was that since they abstained from participating
in personal laws during the British dictatorship, why couldn't the successor state follow the
same course? Muslims argued that the adoption of a uniform civil code would violate the right

19
Article 51A of the Indian Constitution

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to freedom of religion and be overly ambitious and preexisting.20

The Hindus were singled out because they made up a sizable majority and were subjected to a
fierce reform movement. The codification had two purposes: first, it improved the position and
rights of Hindu women, and second, it eliminated caste-based inequalities and disparities. These
changes have made significant progress towards gender equality, a concept that is absent from
Hinduism and represents a significant departure from the general corpus of law. Rajendra
Prasad, a staunch opponent of this bill, because it imposed radical values on the entire Hindu
society of the tiny minority.

The original bill was divided into several parts following the 1952 elections, and the prime
minister said that "the true development of the country involves progress not only on the
political level, not only on the economic level, but also on the social level." They were led by
the newly appointed law minister, H.V. Pataskar, who pointed out that the current legal
framework is centred on the recognition of dignity in the constitution. Unforeseen changes were
made to the Hindu constitution as a result, but the government did not deem it necessary to
make the same changes to the Muslim constitution. This was because Muslims were weak and
unsteady after being brutalised and shunned during the partition of India, and they looked to the
state for security. The lack of a respectable middle class was another problem associated with
Partition. The surviving Muslims were the working class, fisherman, workers, and craftsmen,
while a sizable number of Muslim judges, intellectuals, physicians, and businessmen had
immigrated to Pakistan. Hindu Communalism and Pakistan's provocations put constant pressure
on India's Muslims, who were a sizable minority. The expert believes that since Hinduism's
core foundations—which form the basis of its identity—are flexible and non-restrictive, it was
simpler to codify Hindu law.

(B) Uniform Civil Code and Courts

The judiciary has a strong commitment to the principles of secularism and the objective of
creating a diverse Indian society. The Supreme Court reiterated its dedication to this
integrationist vision of nation-building in Pannalal Bansilal Pitti v. State of Andhra Pradesh in
1996 by upholding procedural uniformity in the following terms: "To unite all facets of society
into one Bharat, the founding fathers created a democratic constitution. Article 44 attempts to
encourage homogeneity among citizens of all religions." Another landmark decision is S.R.
Bommai v. Union of India, in which the Supreme Court determined that secularism is a

20
Abhishek Jena, Uniform Civil Code, Legal Pluralism and Indian Constitution, (2021)

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fundamental component of the Constitution.

Justice Ramaswamy said, "Secularism in the Constitution is not anti-God ... this Court does not
support the wall of distinction between law and faith ..." Justice Reddy said, "Secularism is
nothing more than a passive mindset of religious tolerance. It is a good principle of fair justice
for all faiths.” The Supreme Court deplored the fact that Article 44 of the Constitution remained
“a dead text”. In the same decision, the Supreme Court firmly affirmed Parliament's
constitutional authority to amend personal laws and encouraged the Government to introduce a
common civil code to facilitate national integration. In Ahmad Khan v. Shah Bano21, the
Supreme Court pronounced its judgment in gross breach of the Muslim Personal Rule. This
decision would have opened the way for a uniform civil code in India if the Muslims of the
country had not opposed the same thing. It was held:

“It is also a matter of sadness that Article 44 of our Constitution remains a dead text. The idea
seems to have gained ground that it is for the Muslim community to take the lead in the reform
of their personal rule. No group is likely to bell the cat by making free concessions on this
subject. It is the State which is responsible for maintaining a uniform civil code for the people
of the country and, without a doubt, has the constitutional competence to do so. We understand
the challenges involved, but a start needs to be made. However, a piecemeal effort by the courts
to fill this distance between personal laws cannot take the place of a common civil code. Justice
is a much more satisfactory way to administer justice than justice on a case-by-case basis.”

Chandrachud CJ in the above case observed:

The 1772 Regulations that came before the Regulations of 1781 stated that either group should
be governed by its "private" rule in subjects pertaining to succession, marriage, religious
customs, and institutions. Personal constitutions may be replaced or supplemented by the
establishment of a standard civil code because the constitution, not religion, is the authority
under which they were allowed to exist and continue to operate. In my judgement, no group
will object to the creation of a uniform civil code that applies to everyone living in Indian
territory.

In Ms. Jordan Diengdeh vs S.S. Chopra22, the court observed:

It is also clear that the law on judicial division, divorce, and nullity of marriage is far, far from
uniform. It is definitely time for a complete overhaul of the law of marriage and for a uniform
law to extend to everyone. It is proposed that the time has arrived for the legislature to interfere

21
AIR 1985 SC 945
22
1985 SCR Supl. (1) 704

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in these affairs in order to lay down a uniform code of marriage and divorce and to lay down,
by statute, a way out of unfortunate circumstances. In the case of Mrs. Mary Roy Etc. Etc vs
State of Kerala & Ors23, the Supreme Court ruled that the terms of the Syrian Christian Law of
Travancore, 1916, and the Cochin Succession Act, 1921, which restricted the right of Syrian
Christian women to their paternal land, were unconstitutional. However, it was only in 2010
that the decree in Mary Roy's case was executed and she was allowed to demand back her
brother's share of her father's house.

We can also infer that India is committed to maintaining its constitutional mandate of secularism
and that, over the years, we are progressing towards what is envisaged in Article 44 The
judiciary has done its hardest to ensure secularity and freedom, but it is the State's responsibility
to ensure that Article 44 becomes law. The obvious lack of politics does not contribute to the
realization of our constitutional responsibilities.

V. CONCLUSION AND SUGGESTIONS

In conclusion, legal pluralism is no longer fit for India. A new ‘one law for all’ approach is
necessary to end the discrimination experienced by many Indians of different communities and
this can help in cementing religious harmony in the state.

In the case Mrs. Valsamma Paul v. Cochin University24, According to the Supreme Court,
religious tolerance is the cornerstone of Indian secularism, and pluralism is the defining
characteristic of Indian culture. It is predicated on the idea that all religions offer equally
beneficial and effective routes to perfection or God-realization. It represents a difficult
interpretive process in which different religions are united while also transcending them. In a
multireligious society, it serves as a bridge across religions to overcome the obstacles posed by
their differences.

The fundamental characteristic of the Constitution as a guiding principle for state policy and
activity is secularism. The cornerstone of the egalitarian and progressive society that our
Constitution seeks to construct is secularism in the good sense. In a multireligious and socially
fractured society, it is the sole basis for a consistent and long-lasting national identity. It is an
effective method for resolving disputes and promoting harmony and peace. It guarantees full
civil liberties, constitutional rights, and equal opportunities while giving believers in all
religions a sense of security.

The Indian people and their religious leaders have the power to decide whether or not to embrace

23
1986 AIR 1011
24
AIR 1996 SC 1011

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the Uniform Civil Code, but ultimately it is up to the political parties. That can only happen if
the vast majority of Indians are sensible enough to accept the Universal Civil Code that will
govern their private affairs. It is a laborious effort that can only be completed by a gradual
process of civilization, and one can only hope that the idea of the Universal Civil Code would
genuinely replace fundamentalism and religious extremism across the Indian subcontinent.

Suggestions
Religious freedom is a contentious issue in India, and recent studies on the subject have noted
that it is one of the country's core values. This has been acknowledged by politicians and courts,
and the Indian judiciary has argued that the decision should be left to Parliament because it is
simply too political for the courts to handle. So, it is arguable that change may be accomplished
by the Indian Parliament dismantling the present legal framework and establishing a single body
of legislation that would be adhered to - a real "one law for all" strategy. Nonetheless, many
politicians would probably be hesitant to fundamentally alter a legal system that is generally
functional.

Moreover, to face the issue head on may only exacerbate tensions and completely undermine
its purpose. This has been noted by jurist John Duncan Martin Derrett who stated that the best
way to reform the Indian pluralist system is to let it ‘wither away’25 and gradually replace it
with a uniform law, thus avoiding confrontation between religious groups. Although this is a
drawn-out process, it would nevertheless achieve the aim of protecting women and reducing
religious tension.

*****

25
Faizan Mustafa, ‘Why Legal Pluralism Matters’, The Indian Express, 2015

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