ABSTRACT :
Religion has played one of the most significant if not one of the most important roles in the making of a modern and an Independent India. For Example : It was religion which began the first war of Independence when the soldiers of the British East India Company mutineed because they felt that the British were violating their religious beliefs with the new rifle cartridges [that were supposedly greased with cow and pig fat] and also the orders that came with it. Religion has also played a very divisive role in many parts of India and it was religion itself which led to the partition of an united India into the divided countries of India and Pakistan. It was because of these very reasons that the legislature and the judiciary of Independent India recognised that the laws of this country should be made intertwining it with the religious beliefs of the society as a whole. Moreover, religion is the social fabric that has held society together and has inspired the system of values on which not just India but other countries from which India draws its constitutional and legal inspiration has been built upon like the USA. It is for this very reason that the makers of the Indian constitution and the members of the legislative assemblies that framed various laws for the population framed these laws keeping in mind that these laws have to be intertwined with the religious beliefs of the general Indian populace or the religious beliefs of the populace of that particular state [for the tribal states in the Northeastern parts of India and the Specially Administered region of Jammu and Kashmir]. Through this research paper I shall make an attempt to show the relationship that exists between the religious beliefs of the people and the various laws that are framed in India. Moreover this paper shall also try to explain the evolution of law from religion and how religious laws led to the framing of personal laws for every single religious group in India.
KEYWORDS :
Religion, Religious, Law, secularism, personal law
INTRODUCTION :
Amongst all the South Asian Nations, India is the only nation that has firmly established itself as a secular nation while the other South Asian nations have had a state religion either expressly provided for in their respective constitutions or through state practise of favoring one religion over the other [Examples of the same being Nepal and Bangladesh]. However, a closer look at India’s standards at secularism and India’s definition of secularism will show us that the Indian constitutional definition of Secularism is markedly different from that of our western counterparts. Wherein our western counterparts i.e, The countries of the United States of America, France and the rest of the European Union follow the principle of complete separation of religion and the state, where the two of these groups cannot meet or mix at all at any cost and the european union in practise also follows the french principle of laicite where according to this principle, the religious beliefs of any person must wholly be restricted to the private sphere and by private it means that the religious beliefs of a person must be restricted to “within the four walls of his house” and it must have no place in his public life whatsoever. In sharp contrast with these western definitions of secularism, the Indian form of secularism believes that it must be law that determines the scope of religion in society and not society which must determine the scope of the law of the land, in this way the Indian form of secularism strives towards striking and maintaining a delicate balance between religion and the government. Through this research paper I shall make an attempt to show the relationship that exists between the religious beliefs of the people and the various laws that are framed in India. Moreover this paper shall also try to explain the evolution of law from religion in India and how religious laws led to the framing of personal laws for every single religious group in India.
RESEARCH METHODOLOGY :
This research paper is entirely descriptive in nature and the sources for the research are secondary in nature in order to better understand the influence of religion in framing the laws and the legal framework of India. Secondary sources of information like newspaper articles, journal articles and information from various websites have been used for the purpose of research.
LITERATURE REVIEW :
In order to understand how and why religion has played such an important role in determining the laws of India and the framing of its constitution, we must first realize that India has always been an extremely religious society and even for the foreseeable future India will continue to be an extremely religious society. According to the Indian Census conducted in the year 2011, almost 80% of all Indians surveyed identified as a religious hindu, 14% identified as muslims, 2.3% identified as christians and 1.72% identified as Sikhs, with buddhists, jains and other religious groups making up about 1.66% of the population [1]. However, the emphasis here is on the irreligious who make up a miniscule 0.30% of the population[2]. This proves that the Indian population is very deeply religious as a whole and thus the lawmakers of the land realized that this could be used to wither divide the country along religious lines or it could be used as the moral fabric of the society in order to hold the indian society together despite all our differences, these religious groups could be used as a way to unite the people if law could be used to determine the scope of religion in society.
Having mentioned that, we need to take a look at India’s judicial system and the mindset of the makers/framers of the constitution in order to understand the reasons as to why Indian laws take their inspiration from religion at large and religious institutions also.
CONSTITUTIONAL PROVISIONS :
Indian laws have been framed not only to protect Indian religious beliefs such as the directive principle of state policy that ensures that the state shall strive to prohibit the killing or rather the slaughter of cows and calves [3] and also the constitution ensures that certain communities be allowed to exclusively follow their religious beliefs even if it is in direct contravention with certain laws, for example : the Indian constitution allows the Sikh community to carry their religious sword [also known as the Kirpan] recognising it as an essential practise in their fundamental right to practice and propagate their own faith. Moreover, court rulings have also ensured that the male members of the Sikh community are allowed to wear their turban while driving two wheelers which means that they can choose to disobey the laws of the state mandating them to wear helmets while driving two wheelers on a road [4]. The constitution also mandates that people of Faith shall have the freedom to pay taxes for upholding or even propagating the religion provided that they do not have to mandatorily or compulsory pay those taxes in order to prevent their misuse or abuse by the people in charge of the religious institutions that is the clergy [5]. This move protects the religious tenets of minority faiths such as those stemming from the abrahamic sect such as Christianity, Islam, Judaism and other religious groups based on the doctrines of these religious faiths such as the Bahai faith, the Ahmadiyya etc wherein all of these faiths mandate the propagation of their faith through preaching and conversions.
However the constitution also mandates that in certain cases the state that is the central government or the Judiciary may intervene in order to prevent any kind of extremity or misuse or abuse of these rights provided by the Constitution by these religious groups in order to protect people of other faith and also people within the same faith who may be at a dire disadvantage because of these extremities within such and such religion [6]. An example of this being applied is in the case of the Sabarimala temple wherein the supreme court allowed women to enter a temple premise in order to prevent discrimination against women who are menstruating by the members of the religious community maintaining the Sabarimala temple [7]. Another example of the same is also where the supreme court intervened in the case of the Ayodhya temple dispute in order to ensure communal harmony between the Muslim community and the Hindu community over the site of the Ayodhya temple also formally known as the Babri Masjid which is deemed to be a holy place or rather a holy ground for both of these religious groups [8], without the supreme court’s intervention in both of these cases there would have been unwanted consequences in the administration or in the resolution of these conflicts and extremities such as communal rights and unwanted bloodshed not to also mention discrimination against the women as in the case of the Sabarimala temple. Moreover the Indian government with a view to protect the rich Hindu culture and heritage of the South Indian states [whose rulers had built built glorious and magnificent temples dedicated to certain deities during the period of their rule such as the chola empire] decided to make an amendment to the Indian Constitution that allowed for the state exchequer to pay for the maintenance and upkeep of various Hindu temples of certain denominations in the two Southern Indian states of Kerala and Tamilnadu from the public or rather the government funds. Moreover, in order to protect the tribal customs that were prevalent among the Christian dominated states of Mizoram and Nagaland, a Constitutional Amendment was made in order to preserve their tribal customs with regards to their personal laws and certain customary laws that they followed which would have gone against the prevalent customary laws that were followed by the remaining Indian states.
LOCAL AND STATE PROVISIONS :
The first kind of provision that should be mentioned here is the provision that has been made by the constitution to allow for properties to be acquired by temples, mosques and churches for religious purposes provided that these properties would be held not by one private individual or a group of private individuals but by a religious trust that could be controlled by a group of clergymen or a group of clergymen and a member of the required congregation. The constitution also made an open provision that allowed for the states to make any kinds of laws or enactments with regards to regulating or helping these trusts. Thus multiple laws were passed in the states of Bihar, Odisha, Karnataka, Tamil Nadu, Uttar Pradesh and Madhya Pradesh [9] for the Governance of Hindu religious and charitable trust [10]. And up until 1995, the states had the power to regulate Muslim Charitable Trust also; however the central government recognised the fact that Muslim customs and traditions do not change from state to state as is prevalent with the practitioners of The Hindu it is constant as it is based upon the teachings of the Quran and the Hadiths [11]. Thus the central government enacted a central law that would govern the working of the Muslim charitable trust and this law was titled as the Wakf Act of 1995 [12].
The Government of India has also passed certain laws in order to protect religious sites and places of worship such as the Religious Institutions Act of 1988, Under which it makes holding any person who is convicted of any offense or who is wanted by the police or by the state for having committed any offense in any religious place as a punishable offense, in other words it prevents police officers or members of the law enforcement from converting any religious site or any religious building such as a temple, Church or a Mosque into a makeshift hold out cell or prison for these criminals.
Another type of law passed by the government of India in order to protect religious sites are site specific laws which are passed in order to maintain an up Keep sides of Huge significance for various minority religious groups such as The special laws that were enacted for the Jagannath Temple in Odisha, Mahabodhi Temple beside the peepal tree where Buddha was enlightened at Bodhgaya in Bihar and the maintenance of the Dargah where the Khwaja Moinuddin Chishti was buried in Ajmer, Rajasthan.
OTHER PROVISIONS :
Certain other provisions that have been made by the government of India which may not be listed under the constitution of India or under state legislation may be the organizing of annual pilgrimages by the government of India for both the Muslim and the Hindu community. Such as the organizing of the Hajj pilgrimage for Muslims under the Hajj Committees Act of 1959 [13] whereby the annual Hajj pilgrimage was subsidized using the funds of the union government and the organizing of the Hajj pilgrimage was placed under the Ambit of the Union ministry for external affairs. The central government also encourages and also organizes and arranges for the mansarovar pilgrimage for the Hindu community which is handled by a separately designated department for that same purpose.
PERSONAL PROVISIONS :
Hindu Personal Law :
Medieval and pre medieval Hindu laws were governed solely by Shruti and smriti, the readings of the Vedas and the writings of various sages and through religious literature and religious books such as the Ramayana, the Mahabharata and the Bhagavad Gita [14]. However during the era of the British, the Governor General of India, Warren Hastings laid down that the Hindu’s would be governed by the teachings of the Shastras which was once again re-endorsed through the Cornwallis code of 1793 and through other laws that would be passed once again in 1797. However, during 1862-1872 there was a widespread call from various Hindu reformers to reform the Hindu personal laws which were still based on traditions and some teachings of the shastras which they felt were outdated. Thus the British passed various Landmark legislations aimed at reforming Hindu law such as the Abolition of Sati by Lord William Bentick which was quickly followed by the passing of the Hindu widows remarriage act of 1856 that had been drafted by the then governor general of India, Lord Dalhousie who decided to finish the set of reforms that were implemented by Lord William Bentick [15]. Following independence, the Government of India decided to pass the Hindu Marriage Act of 1955 which the decided would maintain the delicate balance between being in touch with Hindu scriptures and Hindu teachings on the concept of marriage and traditions to be followed in any marriage with regards to the marriage ceremony etc. while at the same time also preventing any sort of disadvantage that may arise from the implementations of some of the Hindu teaching from the shastras and from the smriti’s and in doing so also maintaining the set of reforms that were passed by the British in the name of modernizing and civilizing the Hindu concept of marriage.
Muslim Personal Law :
The Muslim personal law was based on the teachings of the Quran and the Hadiths during the medieval ages and was thus based on the muslim practises and the muslim customary law and also the laws that were made and accepted by the scholars of the muslim Ummah – a practise known as Ijma and Qiyas [16]. However, with the arrival of the British in India, the British set about trying to codify the laws into a single law and governed under a single act and they did so with the passing of the Avadh Laws Act of 1876. However, with the arrival of the Indian Independence movement, the muslims of India felt that there was a special need for them to maintain their muslim identity and also the fault lines between muslims and non-muslims became very sharp. Thus in order to further entertain the communal divide in India, the British passed the Indian Muslim Personal Law [Shariat] Application Act of 1937 and the Dissolution of Muslim Marriages Act of 1939 which made it impossible for an Independent India to repeal and replace with an uniform civil code thus causing various conflicts between the muslim and the non-muslim community in this regard. However, following Independence the government of India decided to pass some legislations that would modernize and also Reform the Muslim personal laws such as the supreme court banning the practice of triple talaq and the Indian Parliament passing the law known as Muslim women (protection of rights on divorce) act which allowed for a Muslim woman to receive alimony but only for the 90 day period also known as Iddat post divorce following the controversial Shah Bano case.
Christian Personal Law :
Christian personal laws were made by the British based upon their understanding of Christianity and the Bible, however laws were also enacted in order to allow a Christian man who was a native of India and had converted to Christianity in order to allow him to divorce his wife who refused to convert to Christianity following his conversion to Christianity. However a new law was again passed in 1872 known as the Indian Christian Marriage Act which would govern the marriage laws of all Christians from the year 1872 and these laws were applicable to Christians of all denominations and were applicable to all the states all across India post independence [with the only exception being that of the state of Goa who had the Uniform Civil Code enacted by the Portuguese government to govern the personal laws of all religious groups living within Goa which was left untouched by the union government of India following the independence of Goa from Portuguese rule]. The Indian Christian Marriage Act also governs traditions regarding marriage of any Christian and also governs the rules and procedures that must be followed with regard to divorce among Christians, following independence the Indian government decided to review the Indian Christian Marriage Act and found that it had no major flaws and required no major reforms. However the Supreme Court of India found that The Indian Christian Marriage Act required reforms and struck down several provisions of the Indian Christian Marriage Act as being discriminatory towards women such as the concept of divorce where a Christian woman was not allowed to file for divorce solely on adultery but rather had to file for divorce along with another crime that was committed by her husband such as sodomy, marital rape or abuse in the form of Domestic Violence. The supreme court in its judgment in the case of Pragati Varghese vs. Cyril George Varghese [17] & Ammini E.J. v. Union of India [18] and stated that such a provision in the Indian Christian Marriage Act was contrary to the basic fundamental rights that were enshrined in the constitution of India.
SUGGESTIONS & CONCLUSIONS :
From the above, we have seen that the Government of India and the framers of the Constitution of India took an active role in upholding religious beliefs of individuals through various constitutional, local & state and also personal provisions for the religious beliefs of the individuals of various faiths while also maintaining the balance of secularism and not allowing the religious beliefs of any religious group to influence the law of the land and to prevent any religious group from imposing their religious beliefs on any other non believing groups. However, the Indian Judiciary still lacks in this regard. If we look at various judgements made by the judiciary they are made with a secular viewpoint [which may promote the values of equality by preventing any bias towards or against any religious groups], however the judiciary has made some serious mistakes through this measure especially when it comes to pronouncing judgements over cases or issues involving personal law and marital disputes. One such example would be the judgment pronounced by the Delhi High court in the case of Sh Pradeep Kumar Sharma v Smt Deepika Sharma pronounced that “Occasional acts of adultery committed in isolation do not disentitle woman from maintenance” [19] which along with being extremely unjust to the man [as it forces him to put up with an adulterous wife and it also makes it difficult for a man to divorce his adulterous wife hassle free] but it is also an affront and an insult to the Hindu Religious law that not only looks down upon adultery but it also considers adultery a grave violation of the sanctity of marriage in hindu culture. Hindu scriptures and ancient texts such as the Manusmriti, the Mahabharata, and the Ramayana all explicitly condemn adultery. In the light of such beliefs, it is no surprise that adultery is one of the recognized grounds for divorce or separation under Hindu personal laws. However, the Honorable Chief Justice of India D.Y. Chandrachud also pronounced that “a married woman can make her own sexual choices. By marrying, she has not consented to refrain from sexual relations outside marriage without the permission of her husband.” in the case of Joseph Shine V Union of India [20], which is incorrect in the light of the scriptures of all religious groups which explicitly prevents men and women from having any sexual relations with anybody outside of their marriage.
NAME OF THE STUDENT : SIDDHARTH DAVID D’SILVA
NAME OF THE UNIVERSITY : NATIONAL LAW UNIVERSITY ODISHA [NLUO], CUTTACK
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[2] India has 79.8% Hindus, 14.2% Muslims, says 2011 census data on religion-india news , Firstpost, Firstpost (2015), https://www.firstpost.com/india/india-has-79-8-percent-hindus-14-2-percent-muslims-2011-census-data-on-religion-2407708.html (last visited May 11, 2023).
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[4] Sikh man issued Challan for “not wearing helmet”: Bareilly News – Times of India The Times of India, https://timesofindia.indiatimes.com/city/bareilly/sikh-man-in-turban-issued-photo-challan-for-rs-500-for-not-wearing-a-helmet-while-riding-two-wheeler-in-ups-moradabad/articleshow/78190417.cms (last visited May 12, 2023)
[5] Right to freedom of religion: Articles 25-28 of the Indian Constitution iPleaders, https://blog.ipleaders.in/right-to-freedom-of-religion-articles-25-28/ (last visited May 12, 2023)
[6] Tahir Mahmood, Religion, law, and judiciary in Modern India, Law and Religion, An Overview , 321–341 (2017)
[7] The Sabarimala case: The Supreme Court of India. Prime Legal, https://primelegal.in/2022/11/25/the-sabarimala-case-the-supreme-court-of-india/#:~:text=The%20Supreme%20Court%20has%20permitted,be%20subjected%20to%20gender%20discrimination.%E2%80%9D (last visited May 12, 2023)
[8] Ram Mandir-Babri masjid case: Supreme Court fixes March 23 as next date of hearing: India news – times of India The Times of India, https://timesofindia.indiatimes.com/india/babri-masjid-ram-janmabhoomi-case-sc-fixes-next-date-of-hearing-as-march-23/articleshow/63294884.cms (last visited May 12, 2023)
[9] Tahir Mahmood, Religion, law, and judiciary in Modern India, Law and Religion, An Overview , 321–341 (2017)
[10] Tahir Mahmood, Religion, law, and judiciary in Modern India, Law and Religion, An Overview , 321–341 (2017)
[11] Tahir Mahmood, Religion, law, and judiciary in Modern India, Law and Religion, An Overview , 321–341 (2017)
[12] Tahir Mahmood, Religion, law, and judiciary in Modern India, Law and Religion, An Overview , 321–341 (2017)
[13] The Haj Committee Act, 1959 Indiankanoon.org, https://indiankanoon.org/doc/102428/ (last visited May 12, 2023)
[14] R. P. Choudhary, EVOLUTION OF PERSONAL LAWS IN INDIA, 8 Pramana Research Journal (2018)
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[16] Sources of islamic law Legal Service India, https://www.legalserviceindia.com/article/l302-Sources-of-Islamic-Law.html (last visited May 12, 2023)
[17] Christian Law Regarding Marriage and divorce in India: Indian christian marriage act, 1872 Legal Service India – Law, Lawyers and Legal Resources, https://www.legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-divorce-in-india-indian-christian-marriage-act-1872.html (last visited May 13, 2023)
[18] Christian Law Regarding Marriage and divorce in India: Indian christian marriage act, 1872 Legal Service India – Law, Lawyers and Legal Resources, https://www.legalserviceindia.com/legal/article-1764-christian-law-regarding-marriage-and-divorce-in-india-indian-christian-marriage-act-1872.html (last visited May 13, 2023)
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[20] Adultery law strips woman of sexual autonomy: Justice Chandrachud NDTV.com, https://www.ndtv.com/india-news/section-497-justice-dy-chandrachud-adultery-law-strips-woman-of-sexual-autonomy-1923311 (last visited May 12, 2023)
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