Religion and Law

Introduction:

Customs and culture are the most ancient beliefs Indians do have. India follows and pursues different cultures, religions since 1000s of years. India has a vast and dynamic culture. In India, the utmost important thing is that which religion you belong. Religion is something which can be defined as a set of beliefs concerning the cause, nature, and purpose of the universe, especially when considered as the creation of a superhuman having superpowers to create, maintain and destroy the earth, usually involving devotional and ritual observances, and often containing a moral code governing the conduct of human affairs.

As it is said that unity is in diversity. India is a full proof example of the same. Indians follow various religions such as Hinduism, Sikhism, Christianity, Buddhism, Islam and many more. Different religions have different festivals, beliefs, languages, customs, cultures, cuisines, traditions and much more. India is extremely famous and best known for its diversity in cultures and religion.

India has 29 states and 8 union territories having 23 different languages as acknowledged by the Indian constitution. There are various fascinating things in Indian culture. Let us talk about the festivals of different religions. For an instance, according to the Hindu calendar, they celebrate New Year in the month of April. Holi, Diwali, Raksha Bandhan, Bhai dooj, Janmashthami, Ganesh Chaturthi, Lohri, Makar Sankranti, Dussehra and other bunches of festivals are celebrated by Hindus. Eid al-Fitr and Eid al-Adha etc are celebrated by Muslims of India. Onam, Guru Purnima, Teej, Navratri, Karwachauth, Maha Shivratri, Besakhi, chhat, prophet’s birthday, Pongal, Ram Navami, Bihu, Gudi padwa and the list goes on and on….. India is a beautiful country.

Indian constitution respects each and every culture and religion. India is the birthplace of four major world religions: Sikhism Hinduism, and Jainism Buddhism. In India, there is a good no. of Muslims and Christians. 

You may have heard the term “Anglo-Muhammadan.” Few areas of religious law are mentioned in the Indian Constitution in the course of Hindu or Muslim ‘personal law’. It can be applied in certain contexts such as marriage, divorce or personal property disputes.

 It is quite a controversial topic of Indian law as it takes a long period of time to sought them out.

Jains, Sikhs and Buddhists latently resolved under the shadow of Hindu personal laws.

Hinduism

Existence and Developments

Vedism or Vedic religion, the religion of the ancient Indo-European-speaking peoples who came to India in about 1500 BCE from the region today called Iran. Vedism is the oldest layer of religious activity in India and exists in written forms. It was the mainstream that transformed Hinduism. Our Upanishads like Mahabharata, Ramayana and Geeta gave us the utmost knowledge about life like how to lead a life, what karmas should we do and what should not be done.

Hinduism is a vast culture. It is difficult to explain the word “Hindu”. The religion is very diverse and multifaceted. The written verses and hymns were in the language of Sanskrit. Our Vedas – Rig Veda, Sam Veda, Yajur Veda and Atharvaveda were written in Sanskrit. There is a belief that Vedas transcend every time and does not have any beginning or an end.

Hindu Laws

Hindu laws consist of personal law- marriages, cultures, family disputes, divorces, etc.

Let us talk about CONCEPT OF DHARMA

According to Hindus dharma is everything and includes everything related to life. According to Hindus dharma is not only tells about the law of life but also something that could relate to modern sense and proper human conduct of life. Dharma means justice and knowledge about every circumstance of life. It teaches us life skills. Hinduism is believed to be purely secular in nature. Religion holds few communities as superiors to classify and lead rituals. They use their superiority to mould the customs.

The term Hindu refers to the person who is Hindu and born in a Hindu family or has been converted into Hindu. In Yagnapurus Dasji v. Muldas [AIR 1966 SC 1119],

The Supreme court had accepted the beliefs evolved by “tilak”  relating Hindu religion. The acceptance of Vedas and worshipping of a number of gods at a huge level, also a different feature of Hinduism.

Converts and reconverts are also Hindus. In the case where only one parent is Hindu, the child can be Hindu if the child has been raised and brought as a Hindu. In Sapna VS State of Kerala, Kerala high court declared the son of Hindu father a Christian, as his/her mother was Christian.

People who are Hindus by birth, offsprings of Hindus,  people who are not Muslims, Parsis, Jews or Christians are Hindus by Hindu law. Converts and reconverts can be Hindus. Harijan aboriginal tribes are Hindus as mentioned in Hindu laws.

People who have converted themselves from Hindu to Muslim and follow Muslim faith cannot apply for reconversion to Hindus. Same as with Christians.

Ancient Sources of Hindu Laws

Before the codification of Hindu law, there were few ancient sources which provide information about the religion. Some are:

• Shruti and Vedas

Shruti- what is heard. It is believed that the rishi munis had reached the highest stage of spirituality and revealed Vedas.

• Smritis

Smriti- what is remembered. After smriti the systematic teachings were started as proper teachings were then given. Smritis were written records by rishi munis as the knowledge of the sages. After the Vedic period, the new regulations were given in society.

• Dharmasutras:

The Dharmasutras were written during 800 to 200 BC. Dharmasutras were mostly written in proses and contained verses too. It is clear that they were meant to be training guidelines of sages for teaching students.

• Dharmashastras:

Dharmashastras were mostly in metrical verses and were based on Dharmasutras. However, they were a lot more systematic and clear.

Manusmriti: This is the earliest and most important of all. It is not only defined the way of life in India but is also well know in Java, Bali, and Sumatra. The name of the real author is not known because the author has written it under the mythical name of Manu, who is considered to the first human.

Yajnavalkya Smriti: Though written after Manusmriti, this is a very important smriti. Its language is very direct and clear. It is also a lot more logical. He also gives a lot of importance to customs but holds the king to be below the law.

Customs

There are 4 customs. Mainly:

1. Local custom-customs which are followed by a geographical area
2. Family customs- these are those customs which are followed by a family from a long period of time and where they live.
3. Class or caste customs- these are the customs which are followed by particular caste or class or community.
4. Guild customs- these followed by traders.

Modern Schools

• Mitakshara School

Mitakshara school is based on the code of yagnavalkya commented by vigneshwara, a great thinker and a lawmaker from Gulbarga, Karnataka. The  Inheritance is based on the principle of propinquity i.e. the nearest in blood relationship will get the property.

• Dayabhaga School

It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from Mitakshara School in many respects.

Hinduism is a vast culture. It is difficult to explain the word “Hindu”. The religion is very diverse and multifaceted. The Hindus conceived for their marriages as a holy and a sacramental tie and not a contractual union. For Hindu, a marriage is ordained as necessary sacrament so that the son could give rise to their future generation or in lay man language to continue their “vansh”. The Shastrakars believed that once the unmarried women given in a marriage should preserve her chastity as much after as before her husband’s death.

Under Hindu custom, marriage is considered as sacred and they have thus relation by blessings of God. They believed the concept of marriages is in heaven. Hindus considered the separation of the couple as a sin and hence the question of living separately did not arise in olden days. Once married, then it will last till the end of life.

Among Hindus, marriage is a necessary ritual to do. It is believed that a man is incomplete without a woman or a woman completes a man. A wife is a very source of purushastra, not only dharma,  artha, kama but also for moksha. Wives are given the supreme importance in their man’s life throughout ups and downs. Without a wife, a husband could not even complete many of the tasks or sacrifices of his life. Hindu weddings not only unite the souls of two people but also connect them with emotional, mental and physical commitments. The most core essential of a Hindu marriage is nevertheless –panigrahan, saptpadi, kanyadan in which it is believed that giving away a daughter, along with that holding hands near the fire to signify union and taking 7 steps together.

Islam

Muslims believe in one God “ALLAH”. Muslims believe in Prophet Muhammad’s teachings, who were the Arabic, social and political leader. He was the founder of ISLAM. Muslims believed that he was the last prophet who was sent by God to protect and reveal the faith and teachings of Islam. They have their holy book “QURAN”. Their main motto revolves around Islam, mean surrender to Allah. Their central idea is to surrender to the god. Muslims believe that they follow the same tradition as Judeo-Christian ideals, Noah, Abraham, Moses and Jesus. They believe that they were prophets before Mohammad. The Quran gave detailed information about the life of Mohammad.

Also about the hadiths, or we can say that about the sayings and teachings, which were compiled after the death of Mohammad and talks about the larger events of his life.

Muslim Law

Muslim marriage

Hedaya says that “Marriage implies a particular contract used for the purpose of legalising children. Justice Mahmood has defined Muslim marriage as “a purely civil contract”. NATURE AND CONCEPT OF MARRIAGE The object of a Muslim marriage is to legalize children and to a large extent to regulate and validate the sexual relations. Apart from being a civil contract, it is also a social and religious institution.

In short, we can say that Muslim marriages are contracts. Muslim marriages are considered as a contract to allow sexual intercourse and procreation their children.

Like Hinduism, Islam is not into sacrament but it is a contract and marriage is completes with few recitations of the Quran. Islam allows four wives. A Mohammedan man can marry and keep 4 wives at a time. They follow the concept of polygamy. But it is seen in Sunnis, if a man marries five or more than five wives it would be irregular and be particularly void.

Muslim laws provide simple laws for marriage. All that should is necessary is that the proposal of marriage by one and or on behalf of the other. If the proposal is made in one meeting and the acceptance of it results in a second meeting it would not be a valid contract marriage. There should be the presence of two adult male witness or one adult male witness or two adult female witnesses in accordance with the acceptance of the proposal. The Shia law does not require the presence of any witness for any acceptance and proposal.

Muslim marriage requires proposal “ilab” from one party and acceptance “qubul” from the other side. This must be done in one sitting. The two parties must be legally competent i.e. they must be sane and adult. The women must not be from the forbidden class. The consent given must be free consent, it must be an outcome of compulsion, dues, coercion or undue influence.

According to the SOCIAL ASPECT, Marriage is considered as a social institution.

 We have Social method to give equal status and rights to women. In case of a divorce or need, net security is been provided for that there should be the presence of a dower in marriage to decide the worth.

 In view of RELIGIOUS ASPECT it is of the prophet as well as present in the Quran.

Essentials of a Valid Marriage

 A marriage is a valid marriage only if it is recognised by the courts.

Competency of Parties

Age of Puberty

The minimum age for boys is 15 years and for girls, it is 12. For marriage, dower and divorce, the age of majority under the Muslim law is the age of puberty and not 18 years of age.

There should be a consent of both the parties and if the girl has not reached the age of puberty, sill her family can get her married when she has attained puberty or we can say that her body has become capable of reproducing.

Buddhism

Buddhism is likely a very famous and great religion in the world. It has various traditions. However, their motto is to teach fundamental beliefs. The concept that says that people reborn after dying is believed by them. According to Buddhists, many people born, live, die, and reborn.  Buddhism is the philosophy by GAUTAM BUDHA. Buddha was not a god neither gives the concepts of the theistic world to us. It only teaches us, how to live life and a few mysteries about it. 

The three basic teachings or concepts were:

1. The Three Universal Truths;
2.   The Four Noble Truths; and
3.  The Noble Eightfold Path.

Three Noble Universal Truths

 Nothing is lost in the universe, Everything Changes, The Law of Cause and Effect

In Buddhism, their law of karma says that for every event there will be a second event followed by the first one. Good or bad will be according to the 1sr karma. Skilful or not will depend upon the same. Therefore, the law of Karma teaches us the responsibility for unskillful actions caused by the person who commits them.

The three practices taught were:

1. Sila– it can be defined as virtue, morality or good conduct. They are based on the principle of equality and reciprocity which means everyone is equal and a belief that you should treat others as the way you wanted to be treated.
2. Samadhi– it comprises of meditation, concentration and mental health of a person. Development of the mind is important to ensure personal freedom; it also strengthens the controls of our minds.
3. Prajana– wisdom, it is the core of Buddhism. It emerges when the mind is pure and clear.

Four Noble Truths

It deals with the sufferings of humans.

1. Dukkha– suffering through anything is universal. Sufferings will be there throughout life. Suffering will cause loses, pain, health issues, irregular happiness.
2. Samudaya– there must be a cause of every suffering. The prime reason is attachment.  It is desired to control things. It can take many forms: craving of sensual pleasures; the desire for fame; the desire to avoid unpleasant sensations, like fear, anger or jealousy.
3. Nirodha– end of suffering, it takes time but attachment can get over with the passage of time. The mind experiences complete freedom, liberation and non-attachment.
4. Magga: In order to end suffering, you must follow the Eightfold Path.

Christianity

Christianity is widely practised in the world with millions of followers. Just like Buddhists concepts, Christians also believe in birth, life, death and recreation on life; reborn by Jesus Christ. It all started with a group of people who were saints and followers of Jesus.

Jesus was believed to the real person. Jesus was born in 2 B.C. and 7 B.C.  Jesus was believed to be the son of god and was condemned and killed for the sins of humanity before rising from the dead.

Christians believe and worship only one god. They believed that their god had made earth and heaven. They believe that there were only three mainstreams, the god, Jesus, and the spirits- the good ones.

They believe that Jesus will return to earth in the lights of recreation. Jesus was killed on a cross to offer the forgiveness of sins and was hanged on it for three days with iron nails after his death before leaving for heaven. They consider their holy BIBLE. It considers important scriptures which puts light on the teachings of major saints and teach the art of living. Both Christians and Jews follow the Old Testament of the Bible, but Christians also embrace the New Testament. The most important festivals of Christians are Christmas, which marks Jesus’s birthday and second is Easter which marks the resurrection of Jesus.

The constitution consists of many salient features such as secularism, sovereignty, democratic, republic, Fundamental rights, directive principles of state policy etc. Secularism means that every citizen of India is free to practise any religion of his or her own choice and personal beliefs. In the constitution of India, there are two aspects of secularism one it that everyone can pursue and practise any religion and second is that any state cannot judge any group or individual on the basis of religion and beliefs. Our constitution allows everyone rights such as:

Right to Freedom of Religion in India

• Freedom of conscience and the right to profess, propagate, and practise any religion.
• Freedom to every religious institution to manage its own affairs in matters of religion,
• The state will not collect any taxes for promotion of any particular religion.
• No religious instructions can be imparted in any educational institution, which is wholly or partly maintained out of state funds.

Cultural rights make sure and preserve and promote one’s culture and language. The minorities will be given assistance by the state to establish and administer educational institutions of their own to preserve and develop their culture.

 Secularism means that our constitution observes strict impartiality towards all religion and does not propagate any religion. The impartial attitude of being secular has been guaranteed in several ways at various places in the constitution. For an instance, the preamble itself had assured “liberty of belief, faith and worship.” Similarly, the provisions that establish secularism are also there in the fundamental rights. Equality before the law, equal opportunity to secure a job without discrimination on the grounds of religion and the freedom of religion and worship are ample guarantees of secularism.

Besides this, the right to freedom of religion allows full freedom to all the citizens as well as the aliens in their religious matters. They can worship the way they like but without interfering with the religious beliefs and ways of worship of others.

Significance of Secularism

The concept of secularism is based on equal treatment to all religions. Secularism is not merely desirable but essential for the healthy existence of a pluralist society, such as ours.

Indian secularism is related to the constitutional values of liberty, equality, justice and fraternity. Secularism is essential for Indian for the following reasons:

• It enables people of different religions to live in harmony with other faiths.
• It is a part of democracy, which grants equal rights.
• It protects the rights given to the minorities.
• It safeguards democracy by limiting the powers of the majority.

In spite of so many provisions already existing in the constitution, the word secular was introduced in the preamble in 1976 by the 42nd amendment of the constitution. The purpose behind adding this word in the preamble was mainly to reiterate that secularism was a part of the basic ideology of India. The inclusion simply emphasis that India does not have any state religion.

Many a time, the government does not strictly follow the policy of non-interference with non-religious matters and practices. To respect the sentiments of all religions, the government sometimes makes certain exceptions for a particular community. For an instance, the wearing or carrying of Kirpan is included in the Sikh religion. So they, are allowed to keep a kirpan with them as a religious symbol. Similarly, the wearing of a pagri by Sikhs is again a religious symbol. So, the Sikhs are allowed to wear pagri In schools or other institutions.

The intervention of the state in the religious and social practices of a particular religion may be aimed at eradicating certain social evils which are stigma in the name of the civilized society. for eg, the practice of untouchability by the so-called ‘upper castes ‘ towards the’ lower castes’ has been abolished because it is based on discrimination and violates the Fundamental Rights. Similarly, personal laws based on religion can also be amended through State intervention if they go against the principles of liberty, equality and justice. For example, Right of inheritance in some communities has been amended.

Although the state funding to the religious institutions is not permissible, yet the State can give financial aid on a preferential basis to some of the religious communities for their welfare and upliftment. So some grants can be provided to them.

There is a blend of secular and religious elements within the text of the Constitution and it is this admixture that defines and determines the contours of secularism be acted upon by the State and the religious freedom to be exercised by individuals and communities in modern India. We are a secular nation, but neither in law nor in practice there exists in this country any ‘wall of separation’ between religion and the State – the two can, and often do, interact and intervene in each other’s affairs within the legally prescribed and judicially settled parameters.

Indian secularism does not require a total banishment of religion from the societal or even State affairs. The only demand of secularism, as mandated by the Indian Constitution, is that the State must treat nil religious creeds and their respective adherents absolutely equally and without any discrimination in all matters under its direct or indirect control.

SR Bommai v Union of India (1994) 3 SCC 1

In SR Bommai v Union of India (1994) 3 SCC 1 case the different  judges of the Supreme Court separately explained the significance and place of secularism in the Constitution

• The Constitution has added secularism as its vehicle to establish a moralist social order. Secularism is part of the fundamental law and it is the basic structure of the Indian political system.
•  Despite the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution, the concept of secularism was added in the preamble and was rooted in our society since the beginning. By this amendment what was implicit was made explicit.
•  Constitutional entities prohibit the establishment prevent the State from identifying itself with or otherwise favouring any particular religion
• Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.
•  When the State allows citizens to practice and profess their religion, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State.
• The freedom and tolerance of religion are only to the extent of permitting pursuit of spiritual life which is different from secular life. The latter falls in the exclusive domain of the affairs of the State.

General Constitutional Provisions on Religion

Equality and Non-Discrimination

The constitution provides many rights to give extreme comfort to the citizens, constitution emphasize complete legal equality of its citizens.

1. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India – Article 14.
2. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them, either in general or in the matter of access to or use of general and public places and conveniences – Article 15.
3. There shall be equality of opportunity for all citizens in the matter of employment or appointments under the State and no citizen shall, on grounds only of religion be ineligible for, or discriminated against, in respect of any employment or office under the State – Article 16.
4. The traditional religious concept of ‘untouchability’ stands abolished find its practice in any form IN .strictly forbidden – Article 17.
5.  If the State imposes compulsory service on citizens for public purposes no discrimination shall be made in this regard on the ground of religion only – Article 23(2). [1]

To complete the article 17, after the commencement of the constitution parliament had enacted an untouchability-offences act. It was lately amended as protection of civil rights act m1955. The act claims the punishment on practicing untouchability in any form. Another law was established for the scheduled tribes and scheduled castes.

Freedom of Religion

Everyone is entitled to choose their own religion and practise it on their own with one’s choice.

1.The right to freedom of religion is, in general, subject to public order, morality, health and the other provisions of the Constitution – Article 25.

 2. Despite the right to religious freedom, the State can pass laws providing for social welfare and reform and also to regulate or restrict any secular activity – economic, financial, and political, etc. – even though it may be traditionally associated with religion – Article 25(2).

 3. Despite the minorities’ right to establish and maintain educational institutions, no citizen can be kept away from any State-aided or State- maintained educational institution only on religious grounds – Article 29(2). [2]

There is a vital role of religion in one’s life. But religion does not play any role in elections. Religion matters under powers of distribution.

It is important to keep the balance in law and religion. Laws should respect religion and religion should respect laws. Both aspects are important for the society to maintain peace and happiness. One should always respect each religion and support laws. At the end I only want to conclude this I believe that our laws and religions connect each other like a jigsaw, satisfying each citizen and gives all the rights to do whatever one wants to celebrate their religion.

References:

[1] BAREACTS- Article 23(2) of Constitution of India

[2]BAREACTS- Article 29(2) of Constitution of India