DR.

RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY,

LUCKNOW

Constitution

PROJECT ON:

Right to religion and restrictions to it

SUBMITTED TO: SUBMITTED BY:

Dr. ANKITA YADAV PRADYUMNA PODDAR

ASSISTANT PROFESSOR ROLL No.: 107,

RMLNLU B.A LL.B.(Hons.)- III sem

Table of Contents
Introduction................................................................................................................................2

The free exercise of religion......................................................................................................3

Freedom to Practice of Religion................................................................................................4

Subject to Law........................................................................................................................8

Critical Aalysis of triple talaq Judgement..................................................................................9

Why Religious Law?................................................................................................................10

Religious Personal Laws Do Not Enjoy Religious Freedom...................................................11

Further Implications: Uniform Civil Code...............................................................................13

Conclusion................................................................................................................................13
Introduction

In Western political history the concept of secular State and granting of religious freedom
developed out of many different historical situations and philosophical impulses. In
particular, they have been shaped by the process of secularizations of the State and sundering
of the medieval fusion between the Church and the State. In practice, this separation hasn’t
been always complete. The question, however, may be raised whether the separation between
religion and the State in the absolute sense can ever be maintained in this age of ours, when
political decisions affect every aspect of human life, especially moral and religious issues,
which people hold important in their lives.

The Courts in India have taken upon themselves the task of giving judicial definition to
‘religion’ protected under the secular provisions of the country’s Constitution. They also have
the burden of doing the sensitive job of differentiating ‘matters of religion’ protected under
the same provisions from matters of secular interest added or associated with religious
practices, which may be liable to the action of the State when needed to maintain common
good and to promote social welfare and reform.

The Indian Supreme Court made two landmark decisions that were widely
appreciated among civil rights activists. In one of the decisions, the Supreme Court
invalidated the triple talaq (i.e. the instant divorce of a Muslim husband of his wife
by uttering the words “talaq”). The discussion concerning the triple talaq focused
heavily on religious freedom and its limits. The debate around the triple talaq was
phrased in almost a cliché version of the religious freedom vs. liberal values clash.

Unfortunately, the Supreme Court did contribute to this by a lengthy discussion of

the right to religious freedom and its application to triple talaq. This focus was a
red herring. The Supreme Court should have never considered this argument.
Religious freedom is a non-starter if you want to defend the legality of triple talaq.
For the sake of argument let us assume (as is debatable) that the triple talaq forms
part of Sharia law and is thus part of the religious practice of Muslims. Let us
further assume (as is even more debatable and was rejected by the Court) that it is
an integral and essential part of Islam as a religion.

The free exercise of religion

Article 25[1] a person has a two -fold:-[a] freedom of conscience, [b] freedom to profess,
practice and propagate religion. The preceding cases point out that the Supreme Court of
India has held a principled approach towards religion when appealed for judicial definition of
‘religion’ and ‘matters of religion’ protected under articles 25 (1) and 26 (b) of the
Constitution. As a general rule, it has maintained a liberal definition of religion - as assumed
in most of the liberal democratic States - covering in its ambit belief, doctrines and moral
codes, rituals and observances, ceremonies and modes of worship. 1 However, in some cases,
the Supreme Court did not hesitate to pass a strict definition of ‘matters of religion’ as
protected under clause (b) of article 26 of the Constitution limiting them only to those
essentials and obligatory overt acts necessary to express one’s faith. 2 These are the instances
where the Court found that certain acts of rituals though sanctioned by a particular religion, if
allowed to perform would violate, on reasonable grounds, social solidarity and even cause
harm to life.3 In the context of a religiously plural society like India, where conflicting value
systems often compete with each other, the principled approach of the Supreme Court on
religious matters is to promote religious freedom that secures human dignity. Therefore, the
Court may apply a liberal or a conservative approach towards religion depending on which of
the two better promotes religious liberty consistent with a set of values that protect the
sanctity of human life and provide a life-affirming space for all to live in dignity. Hence, the
Indian judiciary tells in unambiguous language that the Constitution recognizes the
importance of religion in people’s life, and that it holds religious liberty as a fundamental
value of the Indian political community but not at the cost of certain substantive principles
which are necessary in the society for all to lead a life worthy of human dignity. Religion
thrives in India and it remains an integral aspect of Indian ethos. Its popular practices are
multifarious and often unrestrained as shown by Dr. B.R. Ambedkar during the debates in the
Constituent Assembly4In this context, the principled approach founded on reason as held by

1
Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Tirtha Swamiar of Shri Shirur Mutt,
AIR 1954 SC 282, at 290.
2
Mhm. Hanif Qureshi vs. State of Bihar, AIR 1958 SC 731, at 739.
3
CAD, vol. 7, and pp.568-581.
4
CAD, vol. 7, p. 781.
the Indian Supreme Court regarding religion is an important requirement to keep religions to
be authentic in their practices. Such an interpretation of religion would remind believers to
shed away non-religious and, at times, even unreligious accretions added to religious
practices. It would enlighten the followers of various faith traditions not to thwart the
legitimate activities of the State to further the cause of human dignity. The individual
person’s religious freedom as guaranteed by the Constitution of India is provided in clause
(1) of article 25. Some say5 that this part of the article seemed to have been based on the
clause (1) of article 2 of the Constitution of Eire (1937). 6 Others say that the tenor of article
25 resonates with the Karachi resolution on the fundamental right adopted by the Indian
National Congress in 1931 that declared, "Every citizen shall enjoy freedom of conscience
and the right freely to profess and practice his religion, subject to public order and morality.” 7
Dr. D.D. Basu8 commented that all the rights pertaining to religion provided in article 25 of
the Indian Constitution appear to be included in the expression ‘exercise’ clause of the First
Amendment to the U.S. Constitution. The religious freedom guaranteed under article 25 is
not limited to the citizens of India only but also applies to “all persons” as spelt out in clause
(1) of the said article. Question was raised in the Ratilal case 9whether the aliens and in
particular, the foreign Christian missionaries who were exclusively engaged in propagating
their religion, were also protected under clause (1) of articles 25 of the Indian Constitution.
Mr. Justice Mukerjea who spoke for the Court said, “Article 25 of the Constitution guarantees
to every person and not merely to the citizens of India, the freedom of conscience and the
right freely to profess, practice and to propagate religion”. 10 Hence in the next section, we
shall discuss the different aspects of the religious freedom protected under article 25 (1).

Freedom to Practice of Religion

To 'practice' religion is to perform the prescribed religious duties, rights and rituals, and to
exhibit his religious belief and ideas by such acts as prescribed by religious order in which he
5
Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Tirtha Swamiar of Shri Shirur Mutt,
AIR 1954 SC 282, at 290.
6
”Article 2 (1) of the Irish Constitution (1937) reads: “Freedom of conscience and the free profession and
practice of religion are, subject to public order and morality, guaranteed to every citizen”
7
Donald E. Smith, op.cit. p. 102
8
D. D. Basu, Commentary on the Constitution of India, vol.2 (Calcutta, S.C. Sarkar & Sons, 1962), p. 144.
Sadiq Ali, ed., Congress and the problem of Minorities (Allahabad, Law Journal press, 1947), pp.119, 129.
9
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
10
Ibid.
believes. The freedom to practice religion is protected under article 25 (1) of the Indian
Constitution. In the year 1952, the first case of this sort seeking protection under this
constitutional right as guaranteed in clause (1) of article 25 appeared before the High Court of
Bombay.11 The case arose out of the Bombay Prevention of Hindu Bigamous Marriage Act, 12

passed by the State of Bombay. The Act prevented bigamy among Hindus alone who resided
in that State while the Muslim community that practiced polygamy was left out of the
operation of the said Act. Therefore, Shri Narasu Appa Mali appealed before the High Court
of Bombay, because the Act infringed the plaintiff’s religious freedom. The aggrieved
plaintiff alleged that by enacting the Bombay Prevention of Hindu Bigamous Marriage Act of
1946, the State of Bombay discriminated between Hindus and Muslims residing in that State
on the basis of religious practice and, therefore, pleaded that the enactment was void. The
Court upheld the impugned Act constitutionally valid. Mr. M.C. Chagla, the Chief Justice of
the Bombay High Court, who gave the judgment of the Court in this case, indicated that the
freedom to practice religion as provided under article 25(1) was not absolute, in the sense that
if religious practices contravened to public order or to a policy of social welfare, then they
said practices could not claim State protection. He also opined, “a sharp distinction must be
drawn between religious faith and belief and religious practices. What the State protects is
religious faith and belief.”13 Subsequent to the Narasu Appa Mali case, 14
many cases came
before the Supreme Court of India for constitutional protection to “religion” and “matters of
religion” as guaranteed in articles 25 (1) and 26 (b) respectively against certain state
statutes.15 In these cases, the Supreme Court had the occasion to deal with the question of
“freedom of practice of religion” protected under article 25(1). First among them was the Shri
16
Lakshmindra case. The matter under dispute in the instant case was on the rights of the
head of a religious institution in the management of the affairs of religious denominations in
“matters of religion” given under article 26 (b) of the Constitution. In giving its judgment, the
Supreme Court studied in great detail freedom of religious practice as protected under article
25 (1) of the Indian Constitution in comparison with similar cases brought before the Courts
in the United States of America and Australia. The Supreme Court of India observed that the
“practice of religion” as given in article 25 (1) and “matters of religion” as given in article 26
11
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.
12
Bombay Prevention of Hindu Bigamous Marriage Act, 1946 (Bombay Act 25 of 1946) (as amended by
Bombay Act 38 of 1948).
13
The State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84, at 86
14
Ibid.
15
Ibid.
16
Commissioner, Hindu Religious Endowments, Madras v. Shri LakshmindraTirtha Swamiar of Shri Shirur
Mutt, AIR 1954 SC 282
(b) of the Indian Constitution have the same scope. Mr. Justice Mukerjea who spoke for the
unanimous opinion of the Supreme Court said, “The guarantee under our Constitution not
only protects the freedom of religious opinion but it protects also acts done in pursuance of a
religion and this is made clear by the use of the expression ‘practice of religion’ in Art.25.“ 17
He further observed that the freedom of religion in article 25 included not only the “freedom
to entertain such religious belief, as may be approved of by his judgment and conscience, but
also to exhibit his belief in such outward acts as he thinks proper.” 18 In some of the latter
cases of this sort, the Supreme Court’s ruling seemed to have been rather strict regarding the
practice of religion protected under article 25 (1) of the Constitution. For instance, Mr.
Justice Mukerjea who once again delivered the judgment of the Supreme Court in the Ratilal
case19 said: Thus, subject to the restrictions which this Article imposes, every person has a
fundamental right under our Constitution not merely to entertain such religious belief as may
be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt
acts as are enjoined or sanctioned by his religion and further to propagate his religious views
for the edification of others.20 So, we notice that the space granted for the protection of
religious practice is getting restricted. In Shri Lakshmindra case 21 the court decided that a
person had his \ her religious freedom protected in those overt acts of his \ her belief which he
\ she thought proper; and it was not required that such overt acts should be enjoined or
sanctioned by one’s religion. On the contrary, in the Ratilal case 22 the court held that such
overt actions must be enjoined or sanctioned by one’s religion. In the Quareshi case 23 the
Supreme Court further held that the religious practice under question should not only be
“enjoined or sanctioned”24 by one’s religion but it must also be “an obligatory overt act” 25 of
the concerned religion to exhibit its tenet. As seen earlier, in this case the appellants pleaded
for the sacrifice of a cow on Bakr-Id day.26 After going through the Islamic custom of animal
sacrifice on Bakr-Id day and the tradition maintained by Muslim rulers in India, the Supreme
Court observed that cow sacrifice was sanctioned by Islam but it was not an obligatory overt
act to express Islamic faith and, therefore, it would not be protected under practice of religion

17
Ibid., at 290.
18
Ibid., at 289.
19
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
20
Ibid391
21
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shri Shirur
Mutt, AIR 1954 SC 282, at 289.
22
Ibid., at 739.
23
Mohammad Hanif Quareshi v. State of Bihar, AIR 1958 SC 731.
24
Ibid., at 739.
25
Ibid., at 740.
26
“The Quareshi Case”, pp. 142-146.
as given in clause (1) of article 25. The criterion adduced to the practice of religion, which
might claim State protection. In giving the judgment of the Court Dr. Justice P. B.
Gajendragadkar observed: In order that the practices in question should be treated as a part of
religion they must be regarded by the said religion as its essential and integral part; otherwise
purely secular practices which are not an essential or an integral part of religion are apt to be
clothed with a religious form and may make a claim for being treated as religious practices
within the meaning of Art.26. Similarly even practices though religious may have sprung
from merely superstitious beliefs and unessential accretions to religion itself. 27 According to
the criterion set by the Supreme Court an act is a religious practice, which deserves protection
under clause (1) of article 25 of the Constitution of India, in so far as it is held by a particular
religion as essential and integral part of its tenet. This criterion was proposed by the Court
with the objective of saving true religious practices from non-religious accretions and even
superstitions. By 1963, the Courts in India have followed this approach in dealing with
matters related to the practice of religion, which is protected under right to religious freedom.
The test is that a particular religious community must regard it as something essential of its
religious tenet. In the case of counter claims by competing individuals or groups on this
matter, the court is the proper forum to resolve it. This was brought out in the Tilkayat case. 28
The approach pursued by the Courts in India towards matters pertaining to the practice of
religion has come under severe criticism from Constitution experts. Dr. P.C. Jain has
suggested29 that in the matter of doubtful religious practices, the Courts in India should accept
the contention of a believer who claims before the Court that certain practice has religious
significance to the plaintiff instead of restoring to judicial prove into plaintiff’s claim so as to
see whether it is an essential and an integral part of a religion, and in some other instances to
ascertain whether it is an obligatory overt act of a religious tenet.

The Exercise of Religion Subject to State Restriction

The Constitutions of the democratic States guarantee freedom of conscience and the right to
manifest one’s religious beliefs in overt ways. But this freedom is to be ensured in a balanced
manner so as not to endanger the security and well being of the society, the maintenance of
which is the prerogative of the State for the proper growth and progress of the people. Hence,
Constitutions provide also the power to regulate and even to restrict this freedom. The
manner and various reasons under which religious freedom comes under State restriction in
27
Ibid., at 1415.
28
Tilkayat Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638, at 1660-1661.
29
P. C. Jain, op.cit., p. 21
India will be discussed in the proceeding sections. The freedom of religion as restrictively
guaranteed by Article25 [1] is further subjected to the exceptions provided by sub -clauses
{a} and {b} of clause 2 of the same article. Rea with clause [1] the grounds for restricting the
freedom of religion guaranteed by clause {2} are,

Subject to Law

Article 25 (1) of the Constitution of India guarantees the individual’s right to freedom of
religion.30 The exercise of this freedom, however, is made explicitly subject to public order,
morality, and health and to the other provisions of Part III of the Constitution, which lay
down the fundamental rights. Exercise of religion means the performance of acts in
pursuance of one’s religious tenet. In India the limitations laid on the exercise of religious
freedom is really very emphatic. The Constitution of India does not presume that beliefs that
are religious deserve absolute protection. Clause (1) of Article 25, therefore, begins with a
number of safeguards. The right to religious freedom may be exercised only under these
conditions. These are substantial conditions. Commenting on the provision protecting
religious freedom under article 25 of the Constitution, Shri K. Santhanam remarked in the
Constituent Assembly: “Hitherto it was thought in this country that anything in the name of
religion must have the right to unrestricted practice and propagation. But we are now in the
new Constitution restricting the right only to that right which is consistent with public order,
morality and health”.31 The Courts in India on various occasions interpreted the scope of
freedom guaranteed to religion that reflects the mind of the framers of the Constitution. The
Bombay High Court held in one of the cases32 that article 25 provided to all persons the right
to freedom of religion. But the Court reiterated that this “right is not an absolute or unlimited
right. In the first place, it is subject to public order, morality and health. In the second place,
it is subject to other provisions of Part III”. 33 In another case34 the Supreme Court of India
ruled that article 25 of the Constitution guaranteed to every person freedom of religion. But
the Court emphasized: This is subject, in every case, to public order, health and morality…
Subject to the restrictions which this article imposes, every person has a fundamental right
under our Constitution…to entertain such religious beliefs as may be approved by his

30
“Subject to public order, morality and health and to the other provisions of this Part, all persons are equally
entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” Article 25 (1),
Constitution of India.
31
CAD, vol. 7, p. 834.
32
The State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84.
33
Ibid., at 87.
34
Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388.
judgment or conscience.35 Similarly, the Calcutta High Court in interpreting the scope and
limitations laid on the free exercise of religion as provided in clause (1) of article 25 held that
this provision did not give, for example, a Hindu student the right to perform the the
Constitution, which lay down the fundamental rights. Exercise of religion means the
performance of acts in pursuance of one’s religious tenet. In India the limitations laid on the
exercise of religious freedom is really very emphatic. The Constitution of India does not
presume that beliefs that are religious deserve absolute protection. Clause (1) of Article 25,
therefore, begins with a number of safeguards. The right to religious freedom may be
exercised only under these conditions. These are substantial conditions. Commenting on the
provision protecting religious freedom under article 25 of the Constitution, Shri K.
Santhanam remarked in the Constituent Assembly: “Hitherto it was thought in this country
that anything in the name of religion must have the right to unrestricted practice and
propagation. But we are now in the new Constitution restricting the right only to that right
which is consistent with public order, morality and health”.36 The Courts in India on various
occasions interpreted the scope of freedom guaranteed to religion that reflects the mind of the
framers of the Constitution. The Bombay High Court held in one of the cases 37 that article 25
provided to all persons the right to freedom of religion. But the Court reiterated that this
“right is not an absolute or unlimited right. In the first place, it is subject to public order,
morality and health. In the second place, it is subject to other provisions of Part III”. 38 In
another case39 the Supreme Court of India ruled that article 25 of the Constitution guaranteed
to every person freedom of religion. But the Court emphasized:

Critical Aalysis of triple talaq Judgement

The Indian Supreme Court made two landmark decisions that were widely
appreciated among civil rights activists. In one of the decisions, the Supreme Court
invalidated the triple talaq (i.e. the instant divorce of a Muslim husband of his wife

35
Ibid., at 391.
36
Sanjib Kumar v. St. Paul’s College, AIR 1957 Cal, 524. (Cantwell v. Connecticut, 310 US 296, at 304). As
quoted in V.P. Luthera, op.cit., p. 114.
37
Commissioner of H.R.E. v. Nakshmindra, A.I.R. 1954 S.C. 282; Ratilal v. State of Bombay, A.I.R. 1954 S.C.
38
Bombay v. Narasu Bapa Mali, A.I.R. 1952 Bombay 84; Ram Prasad v. The State of U.P., A.I.R. 1957 All.
411.
39
State of Bombay v. Narsu Appa Mali, A.I.R. 1952 Bom. 84.
by uttering the words “talaq”). The discussion concerning the triple talaq focused
heavily on religious freedom and its limits. The debate around the triple talaq was
phrased in almost a cliché version of the religious freedom vs. liberal values clash.

Unfortunately, the Supreme Court did contribute to this by a lengthy discussion of

the right to religious freedom and its application to triple talaq. This focus was a
red herring. The Supreme Court should have never considered this argument.
Religious freedom is a non-starter if you want to defend the legality of triple talaq.
For the sake of argument let us assume (as is debatable) that the triple talaq forms
part of Sharia law and is thus part of the religious practice of Muslims. Let us
further assume (as is even more debatable and was rejected by the Court) that it is
an integral and essential part of Islam as a religion.

Why Religious Law?

We should ask ourselves why Sharia law is relevant at all for this discussion. India
is a secular democracy and not a theocracy like Iran or Saudi Arabia. One would
expect Sharia law to play an important role in Iran or Saudi Arabia, but not really
in a secular country like India. With respect to the secular United States
Constitution Thomas Jefferson famously wrote that it had built a wall of separation
between Church and State.

The solution is that India has chosen to continue a fragmented system of family
law divided by religious groups originally invented by the British colonial rulers.
Unlike in virtually everywhere else in the world, there are different family laws for
different religious communities. The Shariat Act of 1937 constitutes the legal basis
for family laws (such as inheritance, marriage, divorce and so on) for Indian
Muslims. Following the Shariat Act, the family law for Muslims is identical with
the Muslim religious law governing family matters. This should not confuse us
however, as it seems to have confused the Supreme Court, to think of these as one
and the same.

A Religious Marriage Is Not Equal to a Legal Marriage

We can see this most clearly if we look at how marriage and divorce work in other
countries. In most countries marriage involves two separate procedures that are
entirely independent of one another. A couple can get married by the church (or
mosque) and it can get married by the state. The two ceremonies are entirely
independent of one another. A couple can get married by their religious customs.
In the eyes of their religious community (and perhaps God, if the chosen God
happens to exist), this couple is married. But legally they are not. In India,
religious and legal marriages are co-existential. But co-existential does not mean
that there is a necessary or conceptual link between the two.
After the abolition of triple talaq, this is the case for Muslim couples. A Muslim
couple can now be legally married while religiously divorced. There is nothing
inconsistent or odd in this. It is the reverse of the couple who decided to only get
married religiously. What is important about this case is that the religious practice
of triple talaq, as opposed to the legal recognition of it, is not infringed at all.
Muslims are free to practice their religion by treating the couple as divorced.
Nothing of religious significance is lost. But if the religious practice of triple talaq
is not affected the least by the outcome of the decision, then it should never have
been a consideration in the judicial deliberation.

Religious Personal Laws Do Not Enjoy Religious Freedom

The Supreme Court overlooked the crucial difference between a legal marriage and
a religious marriage in its judgment. Instead, all five judges considered that a prima
facie challenge under Article 25, the constitutional provision guaranteeing religious
freedom, would be possible. The judges were unanimous in considering Article 25
relevant to the case. The two dissenting judges even held that triple talaq is
protected by Article 25. The majority judgment and the concurring judgment by
Justice Joseph hold that while triple talaq forms part of Islam, it does not form an
essential part of Islam.

The essentiality doctrine of religious freedom has its problems however. To begin
with, it is nowhere to be found in Article 25. Article 25 is broader than the
essentiality doctrine since it does not require religious beliefs to fulfil any such
standard. It is also problematic for minorities within religious communities. In
every religion, there are disputes about the correct interpretation of its religious
customs. What is an essential practice for some followers, may not be an essential
practice for the vast majority of followers.
Asking a given practice is essential to Islam as such does not take into account the
views of those dissenting religious followers. Even though for them the practice
(for example triple talaq) is essential it will not be protected if we apply an
essentiality test to religious freedom. But as the Supreme Court has reminded us in
the other landmark decision on privacy, the mere fact that a group is small does not
mean it does not enjoy fundamental rights. The essentiality test thus appears to be
self-defeating.
So let us assume that triple talaq was an essential part of Islam (or essential for
some subset of Muslims). The judges would agree that in this case Article 25 and
religious freedom would play a role. But this is tantamount to claiming that
religious freedom includes the right to have one’s religious practices enforced by
the power of the state! This is a far-fetched suggestion, even more so for a secular
state.

Religious freedom, in the eyes of the Court, does not only mean being allowed to
practice one’s customs. It also has to mean that some of these customs must have
legal significance. But why? Religious freedom is the freedom to practice one’s
beliefs. Nothing is added to this freedom by enshrining religious practices in law.
No one complains that the Holy Confession is not a legal requirement for Catholic
Christians or that the prohibition against taking interest rates is not part of a special
“Muslim Finance Code”.

Further Implications: Uniform Civil Code

We might think that the mistake of the Supreme Court is not grave. After all, the
Court did rule against triple talaq. However, the Court’s unfortunate admission that
at least some religious personal laws enjoy the protection of Article 25 has wider
implications. Adopting a Uniform Civil Code would replace religious personal
laws. If the existence of these laws was protected by Article 25, then it seems that a
Uniform Civil Code would be unconstitutional. This creates unnecessary
constitutional confusion since Article 44 of the Indian Constitution expressly
permits the adoption of a Uniform Civil Code and hence the abolition of religious
personal laws. Following my argument, this tension dissolves once we see that the
religious customs of marriage are independent from their legal recognition. A
Uniform Civil Code would leave the religious customs intact and is therefore not in
tension with Article 25. It is a different issue whether or not adopting a Uniform
Civil Code is a good idea. I am merely arguing that it would be constitutional.

Conclusion

The Supreme Court made an important contribution for the rights of Muslim
women with its judgment. But it also missed a chance to clarify the relation
between the state and religion. There is a wall of separation between religious
practice and the legal system. The wall protects both religion and the state.
Religious practice, dissent and debate is freed from authoritative statements of the
true content of one’s religious practice. On the other side, we can see that family
laws are like any other ordinary law. Like all other laws, they have to meet the
scrutiny of constitutionality.