Secularism, as an operating directive, was not a part of the Indian constitution until the 42nd Amendment. It was added into the preamble during the Emergency in 1976. Thereafter, it became an integral feature of Indian identity. History and literature alike have portrayed India as a melting pot where different religions coexist. The continued integrity of this diverse federation has been used to certify India’s secular credentials. In recent years, there has been a consolidation of power by the Sangh Parivar: a Hindu nationalist political alliance (Vanaik 2019). Under the BJP, the ideal of a secular India has undergone a comprehensive rebranding into Hindustan/Bharat. This has been justified through a rhetoric of decolonization while simultaneously harkening back to a glorified pre-Islamic past.
In 2019, the BJP government passed a Citizenship Amendment Bill which granted citizenship to only non-Muslim refugees fleeing religious persecution. The law polarised the nation and sparked widespread protests. Left-wing political groups lamented the loss of India’s secular credentials while protesters rallied to defend the constitution. Readings of the Preamble were routinely held at protests, reflecting the sentiment that the foundation of laws on religious values leads to discrimination and oppression. To the contrary, the BJP claims that it is actually a champion of minorities’ and women’s rights, citing the criminalization of the practice of Triple Talaak to its credit (Roy, 2018). Hindu nationalists paint Hinduism as a civilizing force that protects Muslim women from supposedly regressive Islamic laws. In response, Muslim women have also spoken out against this patronizing rhetoric in an attempt to reclaim their religious identity and agency (Hassan 1998, 85). As a result, Indians stand polarised on the question of which is a better legal basis for minorities’ and women’s rights: Religion or Secularism?
This dichotomous line of questioning is not capable of accomodating the possibility of any third variable that would lend both systems equally culpable in the creation of an unequal society (Wilson 2019). The religion vs. secularism debate over social justice and equality in India creates divisive identities and strategically obscures the overarching problem of patriarchy that privileges Brahmin men over all others.
The first section of this paper breaks down conventional notions of secularism and shows how it has actually enabled closer ties between the state and certain religions. The second section examines the processes that led to codification of religious practices as Religious Personal Laws in India. This is followed by a critical analysis of the Hindu Succession Act (Amendment) of 2005, to determine the patriarchal biases therein. By critically examining reforms to Religious Personal Laws in India, and the mechanisms that enable it, this paper aims to understand the nexus between patriarchy, religion and the secular state.
Secularism, as it was originally conceived, was used to deny women their political franchise. The process of secularization in the west during the age of Enlightenment involved the separation of the church and the state. Due to the patriarchal notions of women as the bearers of tradition and religious practices, women were considered to be more susceptible to priestly influence. Enfranchising women was seen as granting the excesses of “feminine religiosity” a place in secular politics (Scott 2013, 31). With the success of women’s suffrage movements, secularism became relatively egalitarian. In contemporary times, secularism has come to imply not only the freedom to practice and profess a faith between religions, but also within. It is meant to protect against discrimination from other members of one’s own faith on the basis of gender, sexuality, caste, class etc. (Vanaik 2019). Therefore, there is a natural tension between safeguarding individual rights without infringing on the rights of the community, and vice versa.
The secularism enshrined in the Indian constitution is fundamentally different from the conventional disestablishment model. India follows a system of positive secularism, which does not call for a complete separation of religion and the state. Instead, it mandates the state to ensure equality between (and by extension within) all religions and provide protection, regulation and/or reform as needed (Hassan 2010, 940-41). In a multi-religious society like India, assured protection of religious freedom by the state was considered necessary to prevent religious groups from vying for control over the state to ensure their survival. The secular framework empowered the government to reform religious practices to ensure that individual liberties are not encroached upon by the community’s right to freedom of religion (Hassan 2010, 941). These provisions were seen as essential to eliminate practices like caste discrimination which plagued the nation.
However, enabling the government to interfere in religious practices has led to the formation of a nexus between the state and certain religious institutions. Meera Nanda in her book The God Market talks about the state-temple-corporate complex and how the state has tacitly sanctioned – through the use of India’s particular strain of secular ideals – the economic exploitation of the devotee by Hindu religious leaders and capitalist elites (2011, Chapter 3). In contrast, the state also uses this power to obstruct funding for (Baruah 2015) and criminalize certain progressive missionary groups that set up schools and hospitals in underserved areas. Hindutva stalwarts claim that the religious converts that emerge from this service are converted through allurement, which goes against secular values and is therefore illegal (Vanaik 2019). Simultaneously, conversion to Hinduism has been justified as re-conversion to the ostensibly original faith (Savarker 1923).
Convenient interpretation of the secular framework also allows selective religious instruction in publicly funded schools. Moreover, government published NCERT textbooks have strategically erased the caste discrimination and violence that Dalits continue to face in India. They do this by introducing it as a practice that used to exist, and through a form of “textbook gaslighting” that portrays Dalits as benefiting from (as opposed to needing and deserving) reservations now (Chaturvedi 2019). A historical rendering of concepts such as secularism reveals the call to “defend the constitution” as being lacking to say the least. A better goal would be to defend the constitution by deepening and strengthening the values upon which it is built (Vanaik 2019).
The state’s misuse of the constitutional principle of secularism is almost predictable. Successive parliaments, including the current one, have been dominated by upper caste Hindu men who constitute less than 10% of India’s population today. This was true for the Constituent Assembly as well (Vanaik, 2019). One major repercussion of this lack of diversity was the unwillingness of the assembly to formulate a gender non-discriminatory Uniform Civil Code (hereinafter UCC), as was the standard in many secular nations. Implementing a UCC would have been an effective way to correct the discriminatory religious laws that existed previously, especially considering the momentum of social reform post-partition. However, the lack of diversity in the Constituent Assembly coupled with the resulting anxieties among the minorities over Hindu domination made the task difficult (Vanaik 2019). Thereafter, the lack of a Uniform Civil Code has routinely been blamed on the need to pander to religious minorities. However, this view ignores the unwillingness of the Hindu leaders to stand up to the dominant Hindu majority (Hasan 2010, 942). A UCC does not just imply uniformity, but also equality between and within religions, meaning that Hindu men stood to be equally affected by such a code. As a result, the Constituent Assembly chose to continue the Colonial system of having separate laws to govern people of different religions (Vanaik 2019).
Religious Personal Laws
In the precolonial era, regions of the Indian subcontinent were ruled by various monarchs at different times. Rulers formulated laws for their kingdoms by using some interpretation of and guidance from religious institutions, like Ashoka and Buddhism for instance. Hence there was not as much scope for conflict between state laws and religion as all laws were based on religious values. In contrast, England had legal codes for governing the territory and separate personal laws which were framed with the church’s guidance (Parashar 2008, 105). Consequently, as and when the British gained control over these regions in India, they brought them under a unified set of territorial laws, but left personal matters to “religious laws” under the pretext of safeguarding religions (Parashar 2008, 104). However, all laws (territorial and personal) were religiously sanctioned earlier. Therefore, these new personal laws ended up crystalizing certain oppressive practices specific to a community as codified Religious Personal Laws. As more and more regions came under British control, these communal practices ended up being arbitrarily clubbed into different RPLs (Parashar 2008, 104). In Precolonial India religion defined laws, however with the advent of RPLs, laws defined religion making them somewhat immutable.
By continuing this system, the Indian constitution embedded patriarchal practices into law in the name of RPLs. This state control over what religion was, got doubly entrenched due to India’s secular framework which also gave the state the tools to redefine acceptable religious practices through the amendment of these RPLs (Hassan 2010, 942). Coupled with the domination of the Indian parliament by upper caste Hindu men, this has enabled the preservation of patriarchal privilege (Parashar 2008, 105).
Hindu Personal Laws
Hindu Personal Laws apply not only to Hindus but to anyone else who isn’t a follower of an Abrahamic religion. These laws govern various aspects of family life such as marriage, inheritance, divorce, maintenance, custody/guardianship and adoption. Despite the diversity in the culture and practices of Sikhs, Jains, Buddhists, etc. the government managed to bring them under the ambit of the same legislature (Vanaik 2019). This supports the idea that a Uniform Civil Code was not so much impossible as inconvenient for the Constituent Assembly to implement.
After independence, successive governments have passed legislation reforming only Hindu Personal Laws (HPLs), while simultaneously obstructing reform to other RPLs to appease Muslim leaders and clerics (read men). This asymmetric reform served to essentialize Islam as regressive and oppressive and ahistorically render Hinduism as a civilizing force; (Hassan 2010, 944) reminiscent of the colonial rhetoric that served to divide and rule.
The following section looks at the changes made to the inheritance laws of ancestral property in the Hindu Succession Act (Amendment) of 2005. While it is true that Hindu women have gotten more rights than before, these reforms haven’t gone nearly far enough to achieve equality across gender, sexuality, class, caste, etc (Parashar 2008, 105). Instead, they served as disclaimers regarding the ruling class’ commitment to the constitutional principles of equality, and enabled the preservation of Brahmanical male privilege.
Inheritance – Revealing Patriarchy in the State-Religion Nexus
The original Hindu Succession Act of 1956 identifies an entity called the Hindu Undivided Family (HUF). Although members of all religions lived in joint families, these were only legally recognized for Hindus. A HUF is a fundamentally patrilinear institution which consists of the lineal descendants of a common ancestor and their respective wives. Originally, only men could be Kartas and coparceners, who could inherit the property or call for the partition of the HUF. Daughters and wives were given limited rights as “members”. However, after the 2005 amendment, daughters were also given the right to be coparceners and “blend” their self-acquired or inherited property into the HUF. By extension, this meant that women could now legally form a HUF without men, a concept alien to HPLs earlier. Considering the outdated and misogynistic laws that this amendment modified, it is understandable why this was heralded as a win for gender equality. In reality however, this amendment did not go nearly far enough but instead updated this patriarchal institution to be better positioned to exploit women in the neo-liberal capitalist economy.
The New Economic Policy of 1991 marked the entrance of the global neo-liberal capitalist system into India. Women were now increasingly being gainfully employed. The exclusion of daughters from coparcenary under the old act meant that this income naturally belonged to them and could not be blended into the HUF. Therefore, the popular support to pass this amendment coincides with the threat to patriarchal power posed by the prospect of a woman’s financial independence from the family. In addition, although wives are not coparceners in their husband’s HUF, as members they still have the right to “gift” their property/income to the HUF. By gifting to her husband’s HUF in which she cannot be a coparcener, she essentially forgoes her claim over the property. This is because as a member, she cannot call for the partition of her husband’s HUF. For similar reasons, the Supreme Court ruled against a wife blending her inherited property into the HUF. However, the fact that this legislation did not go further to regulate the process of gifting is a cause for concern. This could be used as a neat loophole for paying dowry as the woman supposedly gifts her property/wealth by her own choice.
The ‘rights’ language which implies choice and desire to exercise the given right, is extremely limited in its utility to women as it does not acknowledge their lived experiences (Parisi 2010). Assuming that the daughter/wife has the choice to ‘blend’/‘gift’ her property to the HUF overlooks the pressure and impetus on a woman in a joint family to act as per the wishes of the elders, whether it be in her paternal house or with her in-laws and husband (Mitta 2015). The amendment does not do anything to address these structural inequalities that affect a woman’s ability to exercise the choice implied by her right. Instead, this can be seen as a tokenistic effort to protect the HUF system from criticism for being gender discriminatory while also enabling the HUF to preserve the woman’s dependence on the Hindu family in the neo-liberal economy. In a piece of legislation that has been worked on for decades, such errors of omission must be criticised as vocally as the words that have been penned down.
The HUF act and amendment not only enable patriarchal power within the family, but also ensure the preservation of Brahmanical privilege in society by constraining inter-caste marriages. In 1954, the Special Marriages Act was passed in order to legitimize civil marriages between members of different castes and religions. This law was again celebrated as a victory for secular politics. Inter-caste marriages were set to dissolve the caste system as Ambedkar had envisioned. However, Section 19 of this law marks a concession made to the Hindu right which mandated that any marriage of a Hindu belonging to a HUF performed under this law would result in their severance from the HUF (Mitta 2015). This meant that if a boy or girl from a HUF marries out of their community, they would forfeit their share of the property if and when the HUF was dissolved. This legally mandated expulsion sanctifies and encourages caste discrimination. Considering the hierarchical nature in which the caste system is set up, the lower caste communities always have more incentive to ‘marry up’ and the Brahmin community has the most incentive to impede this and utilize the provisions of the succession laws to preserve their privilege. In addition, the law remains unchanged regarding the inheritance of the father’s self-acquired property. It allows him to disinherit his children at (and through a) will, for marrying into a different community (Mitta 2015).
Other than keeping one’s inheritance, there are a host of other incentives for remaining in a HUF. As per the Income Tax Act of 1922, the HUF is an independent taxable entity and can even own property. This allows the transfer of income generating assets into the HUF which would be taxed at a lower rate (nil for less than 2.5 lakhs) as compared to being taxed in addition to one’s primary income (at around 20-30%). This and the provision of other tax exemptions and loopholes meant that HUFs are routinely used for tax avoidance, which is why multiple commissions have repeatedly called for their reform or removal altogether. These benefits however accrue more to upper caste communities. Ancestral wealth and land, which several HUFs are founded on, have historically been concentrated with the upper caste communities (Mukund 2019, 1353). Therefore, HUFs have been an important tool for not only preserving wealth within Hindu families, but within upper caste Hindus. A close examination reveals how the HUF system, embedded within a larger framework of HPLs, is amended by the secular state to secure the privilege of Brahmin men.
Uniting Divided Identities
These selective amendments of HPLs serve a dual purpose: to shore up Brahmanical privilege and to stereotype Islam as a regressive religion that is incompatible with India’s democratic values. However, as the analysis of HPLs in the previous section has revealed, religion by itself does not perpetuate an unequal society. It is rather the overarching patriarchy that is entrenched within both religion and the state that results in oppressive laws and practices. This reveals two venues for alliances between activists and feminists of various inclinations: secular, Hindu, Muslim, etc. One is to formulate and institute a gender non-discriminatory Uniform Civil Code (UCC). The other is to promote feminist reinterpretations of religious texts.
The process of instituting a UCC has been underway for a long time. It was even mentioned in the non-justiciable section of the constitution that the legislature must work towards implementing a UCC. In 2018, the Law Commission of India published a report with recommendations for the same. The promise of a uniform civil code is that it would open up debate on previously unquestioned notions of gender and sexuality, with regards to marriage, adoption, and inheritance. However, the fundamental problem with the legal approach remains the balancing act between individual and community rights. On this matter the Law Commission states that practices that do not conform to the fundamental tenets of human right cannot seek protection under the law as religion, however that the necessity of a certain practice to the faith must be assessed judiciously. It also warned against the codification of discriminatory customs, which would result in their crystallization. Like India, societies throughout the world are becoming multi religious and are experiencing this friction with secularism. In such a landscape, defining the struggle for equality as being against patriarchy, rather than any faith or the secular framework, is necessary for enabling the creation of alliances across different religious and political identities.
Men have always had a monopoly over the interpretation of almost all religious texts which has led to patriarchal biases being infused into them. Theologists as well as feminists stand divided on whether a reinterpretation of texts is feasible considering the perceived immutability of the word of God. However, such an exercise is not impossible. Feminist engagement with religious texts help reclaim faith as a tool for emancipation (Dube 2012). One such Islamic feminist is Sherin Khankan, the first Muslim Imam of Denmark. She works to reinterpret Islamic texts and challenge patriarchal structures in religious institutions. Islamic fundamentalists critique her work as blasphemy and some feminists critique it as untenable and inadequate. However, she says that bridge builders cannot afford to burn all the bridges behind them, and that the process of reconciling feminism and faith is a long one (Sherwood 2016). Such attempts at reinterpreting religious texts might make the process of reconciling individual and community rights through a UCC that much more practical.
§2(31) Income Tax Act, 1961.
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 The Muslim community has been divided on this issue. The motive behind the criminalization instead of outlawing of the practice being questioned (Roy 2018).
 Equality is defined as similar access to resources and opportunities regardless of gender, sexuality, religion, caste, class, etc. Basically, the most egalitarian view of equality that is a process and not an end in itself.
 Patriarchy is defined as “different formations of gender-based power that privileges certain kinds of men and masculinities over different kinds of men, masculinities, women, femininities, LGBTIQ and other gender and sexual identities.” (Wilson 2019).
 It is not possible to get a concrete number as the Socio Economic and Caste Census did not ask for caste but for reservation category. The census found that 27% Hindus are forward caste, of which a minority are Brahmin men.
 It is important to not conflate the non-discriminatory Uniform Civil Code or Family Law that is mentioned here and the kind of UCC that has been promoted by the BJP which would effectively ignore cultural differences and be detrimental to the right to freedom of religion.
 Even the most recent Lok Sabha elections have yielded only 14% women’s representation and 90% of them are Hindu (Trivedi 2019).
 Mohd. Ahmed Khan vs Shah Bano Begum, 1985 AIR 945, 1985 SCR (3) 844
 §6, Hindu Succession Act, 1956 (Before Amendment)
 §6, Hindu Succession (Amendment) Act, 2005
 However, as several feminist authors have written, this neoliberal capitalist framework did not promote gender equality but rather exploited women and the poor as cheap labor for foreign markets.
 Pushpa Devi v. CIT, (1977) 4 SCC 184.
 §2(31) Income Tax Act, 1961.
 Mr Justice S. Ranganathan, Indian Income Tax Law—Five Decades, (2002) 1 LW (JS) 17
 Law commission report on Family Law Reform
 The Constitution of India, 1950, Art. 44
 For instance, the story of Adam and Eve usually centers around Eve eating the forbidden fruit, which is why god tells the husband to rule over her. However, it is forgotten or ignored that Eve was tricked by the snake – Satan – into eating the fruit