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Religion and law in India A legal Study
LLB (Panjab University)
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RELIGION AND LAW IN INDIA: A LEGAL STUDY
By: Richa Sharma,
Student of LL.B (4th Semester)
1) Introduction
Indian law was not evolved all of the sudden, it took a several long years and which is still
evolving and seems to be a never-ending story. India is a land of diversities which can be seen in
religion, languages, customs geographical attributes and other. Indian law was largely evolved
from religious perceptions, customs and common law to the current legal system. The history of
Indian Law was recognized from the Vedic ages. 1 Even after Independence we can evident the
fact that much importance is being given to Religion of person in Constitution as well, due to the
fanaticism of people towards their religion, that one cannot ignore their religion subsequently it
would be difficult to give effect to the law in uniformity. 2 This is the only reason that,
simultaneously with huge diversity in India, there exist number of legislations which give due
consideration to once religion.
2) Origin and Current status of Religion in India
India is known for spirituality where different religions are found. Religion refers to any social
structure, in which people have a consistent faith, believe and which includes all sort of customs,
traditions, rituals, that are followed by them. Definition of religion given by Galloway, according
to him, “Man’s faith in a power beyond himself whereby he seeks to satisfy emotional needs and
gains stability of life, and which he expresses in acts of worship and service.” 3 But actually the
term religion is so broad, that one cannot try to fit it in a straight fit jacket. But the crux of the
term is that, the God is the central idea in which man have a confidence.
Various theories and philosophies are formulated regarding origin of religion but still it is very
difficult to trace as to when it comes into existence. 4 In the ancient time religion was professed
due to fear or curiosity, people are of the belief that someone exists which beyond human and
1
. Available at: https://ilchslcu.wordpress.com/2015/08/24/introduction-to-ancient-indian-laws/
(Accessed on 25-02-2019)
2
. Central Board of Secondary Education, Legal studies. Pg. 130-136 (1st Ed., 2013).
3
. George Galloway: The Philosophy of Religion, p- 184
4
Available at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4791389/ (Accessed on 25-02-2019)
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controls the entire moments on earth. Although God was regarded as the central idea of religion,
but those thinkers who doesn’t believe in god but still have their religion, e.g.; Buddhism,
Jainism etc. also existed at that time. 5 but they also agreed that there is existence of something
which is beyond the human control. Therefore, it depends upon religion to religion, many
regarded it as the following of god having some physical existence whereas other denies the
believe of physical existence and follow the power which is beyond human control. In India
very popular religions are Hindu, Sikh, Muslim, Buddhist, Jain, Christian and few others (which
are followed by very few numbers of population).
According to the Census of 2011 in India, Hindu religion was found to the most dominating
religion in the country with a follower of 79.80% of the entire population of country, which is
followed by Muslims and Christian.6 Religion in India is of great significance and plays a very
predominant role in the society. It has both positive as well as negative impact in the society. 7
Positive in the terms that it helps to regulate morality, powerful to regulate the society and even
over of time period practice of a religion also shaped itself and have a force of law for e.g. Hindu
Marriage Act. It impacts negatively by encouraging groupism, social clashes, fanatisms in
society.
3) Constitutional Provisions related to religion and Judicial Interpretation
The constitution of India itself enumerates various fundamental rights on freedom of religion
from Article 25-28,8 i.e.:
Article 25. Freedom of conscience and free profession, practice and propagation of religion.
Article 26. Freedom to manage religious affairs.
Article 27. Freedom as to payment of taxes for promotion of any particular religion.
5
Available at: https://www.nios.ac.in/media/documents/SecICHCour/English/CH.08.pdf
(Accessed on 25-02-2019)
6
. According to the census available on: https://www.census2011.co.in/religion.php
7
. Robert Leet Patterson, Philosophy of Religion (New York: Henry Holt & Co., 1958), p. 31.
8
. Professional’s book publishers, The Constitution of India, 2017, page no.12 and 13.
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Article 28. Freedom as to attendance at religious instruction or religious worship in certain
education institutions.
In the preamble of the constitution cherished the idea of secular state whereby a state will have
no religion, but concurrently certain fundamental rights provide freedom to the citizens to
profess their religion without any restrictions. The concept of secularism, religion faiths and
belief are even interpreted and critically explained by High Courts as well as Supreme Court.
In the case of Sardar Syedna Tahir Saifuddin v. State of Bombay 9
It was observed that
Articles 25-30 embodies the principles of religious toughness that has been the distinctive feature
of Indian civilization from the very beginning of history. They serve to maintain the secular
nature of Indian democracy which the framer of Constitution considered to be the very basis of
the Constitution.
In the case of St. Xavier’s College v. State of Gujrat 10, Honorable Supreme Court explained that
Secularism is neither against nor favoring the God; it treats alike the devoted, the agonistic and
the atheist. It evicts God from the matters of the State and ensures non- discriminated on the
ground of religion.
4) Evolution of Law in India
Law in India was generally evolved from the religious beliefs. Indian legal history was recorded
from the vedic ages. Even in present, while making law various factors are considered by the
lawmakers such as morality, politics, history, society and other. Hindu law is one of the world’s
oldest system of law which originated from Veda’s and Manu's Dharma-shastras, which later
composed strong religious, legal and moral proclamations in its Dharma-shastras. 11 The Text of
Manu's Dharmshastras was followed by many other countries. Generally, under Ancient Hindu
law the conflicts between individuals and groups was settled by mediation and conciliation. 12
Then later during 12th century Muslim started dominating India and there was a evident for a
9
. AIR 1962 SC 853
10
. AIR 1974 SC 1389.
11
Doniger, W. and Smith, B. K. trs. The Laws of Manu. Harmondsworth: Penguin, 1991.
12
. http://shodhganga.inflibnet.ac.in/bitstream/10603/50982/9/09_chapter%202.pdf
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Article for MAGLAW: Religion and Law in India: A Legal Study
long time period.13 Same as Hindu Law, Islamic law was also based on the unconditional
religious beliefs. In the absence of exact point of origin of religion and law, it was accepted to
be originated from some indefinite point of time in the ancient history and which is still
evolving.14
5) Law related to religion in India: Present position
The history of Indian religion is more than 5000 years old, but the real legal history started
evolving after the arrival of Britishers in India. When Britishers came to India, people were
governed by law which came from religion or followed religion as a law. Britishers tried to
enforce common law of England in India but was not implemented properly due to diversity of
religion and customs. And while deciding cases British courts had applied combination of
common law with Hindu Law as well as Muslim law.
Likewise, prior to the enactment of Indian Constitution, Hindus were governed by Hindu
Personal Laws and so as the other, they all are governed by their own personal laws. The Courts
took cognizance on the family matters which was based on the respective personal laws. This
practice was even endorsed after the enactment of Constitution for practical purpose. Over the
times Honorable Apex Court have taken different views on personal laws, initially it didn’t even
enunciate personal law as a “law” under Article 13 of the Constitution 15. But gradually Supreme
Court gave various landmark judgments on personal laws where it made it very clear that no
personal law shall overshadow the fundamental rights guaranteed under the constitution of India.
Therefore, every personal law which violates part III of Constitution is void.
Now, when on the one hand courts were giving at most supremacy to fundamental rights of a
person, on the other hand these liberal view of Apex Court leads to controversy in the society.
Religion become an integral part of Indian society that people are very reluctant to accept these
changes in their personal laws based upon the religion which again leads to various
controversies.
13
Available at:
http://cbseacademic.nic.in/web_material/doc/Legal_Studies/XI_U3_Legal_Studies.pdf
(Accessed on: 25-03-2019)
14
Dr. S.N. Dhyani- “Fundamental of Jurisprudence: The Indian Approach” p. 129, 1997 edn.,
Rep. 2002, Central Law Agency, Allahabad.
15
. http://indiatogether.org/combatlaw/vol3/issue4/flipflop.htm
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When we evaluate recent controversies in India, many of these are only religion based. Acts
were enacted, amended which may affect the religion of a person, but at the same time this was
done in consonance with our Constitution and to maintain the Secularism, Equality, Unity and
Integrity of the country.
6) Important Communal based issues in India
There are many instances of horrifying communal based riots in India after Independence and
had a devastating effect on the citizens of India which eventually questions the secular shield of
the country. Whenever conflicting groups from two different religions, which are self –conscious
communities, clash, it results in a communal riot. An event is identified as a communal riot if (a)
there is violence, and (b) two or more communally identified groups confront each other or
members of the other group at some point during the violence 16. Following are the few instances
of such deadliest religious or communal based riots in India.
Sikh Riots 1984: This is popularly known as anti-Sikh riots which was break out in Delhi
and most parts of North India after the assassination of the Then Prime Minister, Mrs.
Indira Gandhi by her Sikh bodyguards. These riots were caused huge chaos and blood
shed in these areas.17
Gujarat Riots 2002: Another worst riots in India so far, Gujarat riots of 2002 was a series
of communal violence incidents between Hindus and Muslims. The Sabarmati Express
train was burnt as a preplanned conspiracy by Muslim mob, then Post Godhra violence
Attacks on Muslims and Hindus and Naroda Patiya riots Ahmedabad. Gujarat riots was a
definition of horror and brutality of Human again human.18
Assam Riots 2012: In the month of July 2012 a communal violence is got triggered
between the Indian Bodos and migrants Muslims from Bangladesh. More than 80 people
had died and over 1 lack have taking shelter in relief camps during the communal riots in
16
Ashtosh Varshney, Ethnic Violence and Civic Life, (New Haven: Yale University Press,
2002), p.309
17
Pav Singh, 1984 India’s Guilty Secret, Rupa Publications Pvt. Ltd. (2017)
18
M.D. Deshpande, Gujrat Riots: The True Story, Partridge India, (2014)
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Assam. Assam massacre was another definition of horror and brutality of Human again
human.19
From various instance it is evident that every law and religion is interpreted in harmony with
constitution. Although in law, due consideration is given to the religious practice but above law
supremacy is given to constitution. This is all about the validation of law with regards to religion.
When we talk the importance of religion in India, we can evident number of examples where
religion is only used as a tool to spread internal disturbance, to divert or seek attention on an
issue. Politicians used it as a tool for vote-bank. As already discussed, religion become an
integral part of human being and it is even more easy to play with religious sentiments of people.
7) Judicial pronouncements related to religion and religion-based laws in India.
1. Shayara Bano V. Union of India20: In this recent judgment of Supreme Court it was held
that the practice of instantaneous talaq-ul-biddat (triple talaq) which authorized a Muslim
man to divorce his wife by simply pronouncing the word talaq thrice as legally invalid.
While giving judgment, Judges are of the opinion that only because the practice have
been followed from a long time period doesn’t validate it if it has been expressly
susceptible. The bench while giving judgment relied on Article 25(2) which says that:
{Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law
(a) regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus Explanation I The wearing and
carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a
19
https://scroll.in/article/689548/the-killings-of-muslims-in-assam-amounts-to-ethnic-cleansing-
claims-report
20
. SCC OnLine 2017 SC 963, (decided on 22.08.2017)
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reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly}21
The very purpose of the 1937 Act was to declare Shariat as the rule of decision and to
discontinue anti-Shariat practices with respect to subjects enumerated in Section-2 which
includes talaq. Therefore, in any case, after the introduction of the 1937, no practice against the
tenets of Quran is permissible. It was said that what is held to be bad in the Holy Quran cannot
be good in Shariat and in that sense, what is bad in theology is bad in law also.22
2. Danamma @ Suman Surpur & Anr. V. Amar & Ors 23: In this case the court clarified the
position of law related to Hindu Succession Act, 2005 and held that “The right is inherent
and can be availed of by any coparcener, now even a daughter who is a coparcener.” The
question before the court is to clarify the position of women after the Hindu Succession
(Amend) Act 2005, that whether she is entitled to equal share to that of son? On which
Supreme Court Bench clarified that the Hindu Succession (Amendment) Act, 2005 (2005
HSA Amendment) to Section 6 makes a daughter a “coparcener” since birth (one who
shares equally in the inheritance of an undivided joint family property, and since 2005
this applies equally to both sons and daughters). This fact gives her the same rights and
liabilities as a son while asserting that it is applicable in all property disputes filed before
2005 as well. The marriage of the daughter makes no difference to this position.
3. Indian Young Lawyers Association & Ors. V. State Of Kerela 24: This case is popularly
known as Sabrimala temple case, PIL was filed in the year 2006, challenging the practice
followed by the temple of restricting entry of women on the notion of impurity and
pollution associated with mensuration as violative of Article 14 of the Constitution. On
which majority of 4:1, the court ruled the practice as violative of Fundamental rights of
women guaranteed under Article 25(1) of Constitution and Rule 3(b) of Kerala Hindu
places of Worship.
21
. https://indiankanoon.org/doc/555375/
22
. https://www.livelaw.in/supreme-court-said-triple-talaq-judgment-read-judgment/
23
.MANU/SC/0064/2018,(https://drive.google.com/file/d/1BBeMVU9V1HatXvFD78x--
z8WtaoEBp-k/view)
24
. https://drive.google.com/file/d/19IsYXqf5dsEbWnRHOAr0gVUqycvVgAHF/view
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4. Ban on sale of cow and buffaloes for slaughter: During last year, the notification of ban
on sale of cow and buffaloes for slaughter bring huge controversy in the country, where
Hindu fundamentalist body pushed to ban on slaughter, whereas for Muslim and other
communities it hits their multi-billion business in India. There was a huge controversy
between Hindus, Muslims and other communities.25
5. Ram janmabhoomi-babri masjid matter: Dispute is basically based on the acquisition of
land at Ram janmabhoomi- babri masjid, the appeal was against the judgment on
Allahabad High Court which directed to divide the area in three parts. Basically, it is a
land dispute, but which is so highlighted by the politicians as a religious dispute and they
are so concerned with the judgment because it will affect their vote banks. In 1994, the
judgment was given in which it was stated that Mosque is not an integral part of Muslim
religion. This decision is still pending before the honorable Supreme Court but still
creates huge controversy among two different religions.
It took a several long years to remove this unconstitutional practice it was first challenged
in the year 1990. The ban on entry of women is created a form of untouchability which is
against the constitutional value. And still after the judgments lots of violence and
controversies still exist due to fanatisms among the devotees.
8) Impact of religion over politics
Politics never remain unaffected by religion. In India even before the independence the society
was always directed by the leaders on the line of religion. Indian Politics does not work on the
need of the society but on the religion and caste. In politics religion is used to mobilize all
sections and classes of a religious community for achieving political and economic goals.26
Religion has become such an important issue that other issues like poverty, unemployment,
illiteracy, population explosion, corruption and environmental pollution have lost their due
attention. The British policy of divide and rule influenced the Indian Politics. Religious
25
.https://www.theatlantic.com/international/archive/2017/07/india-modi-beef-lynching-muslim-
partition/533739/
26
. Panikkar, K.N. (ed.), Communalism in India History Politics and Culture, New Delhi,
Manohar Publications 1991.
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sentiments are used to built vote banks. Although India has a largest democracy but still vote
bank policies based on religion have caused violence, riots, mob killing. Religion taught us
harmony, morals, ethics, values but which is mis leaded by these politicians on the policy of vote
bank.
9) Conclusion
While concluding it can only be said that, the origin of Religion and Law cannot be traced from a
point as there is no evidence for the same. Law related to personal matters are still governed by
religious personal laws which are now to some extent being codified, and there is some freedom
of religion which is guaranteed under Constitution of India to almost every citizen of India. But
even after constitutional freedoms, various controversies or communal violence’s had been taken
place from time to time. And to great extent Court have been playing a very predominant role
while deciding any religious matters. Hence from all the analysis it is can be said that to made
our country really a secular state it is very important to enact Uniform Civil Code, so that no
Civil decision is based on religious perspectives and it truly made the concept of equality before
law into picture.
10) Suggestions
India has the largest democracy giving freedom to every religion and constitution protects every
person’s right from any kind of violations from these rights or from contradictory laws. Where
on one hand religion taught us the harmony & peace, people on the other hand wrangling with
other religion on petty issues. Basically, the concept on which these religions are based are all
same. Hence, the following mentioned can only be suggested:
The very purpose of religion is to bring harmony, and which is above all. The very
essence of the religion should not be ignored, and the very purpose of these religions
should need to be taught to avoid religious conflicts.
There is an immediate need to enact Uniform Civil Code, which bring actual secularism
in India. By this every religion is treated at par, and eventually lead to integrity in India.
Uniform Civil Code so that the very important Fundament Right that is “Equality before
Law” which should not subject to any other dominant laws.
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Article for MAGLAW: Religion and Law in India: A Legal Study
Religious shall never be regarded as the applicability of law, as it creates discrimination
among various religions and which can be a basis of conflicts.
The religious orthodoxy or fanaticism still has a firm grip over the minds of the poor and
backward masses. This evil need to be cured and one must need to understand the psyche
of Indian people and their religious-cultural traditions.
We must generate adequate pressure on politicians to give priority to people’s issues
rather than non-issues like Ram janambhoomi issue. It is not difficult to generate such
pressures.
There must be a ban on formation of religious or caste based political parties, and also on
the reservation on the basis of caste and religions so that our Politian’s cannot exploit
religious sentiments for political ends.
