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Law and Religion in India

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LAW, STATE AND RELIGION IN INDIA* ABSTRACT As defined in Oxford dictionary, secularism is the morality which should be based in the ground of the well being of mankind in the present life to the exclusion from all consideration drawn in the belief of God and future study. It deals with the individual as a citizen irrespective of his or her religion. It is also not constitutionally connected with any particular religion nor does it seek to promote interfere with religion guarantees the individual and corporate frame of religion. It deals with the individual as a citizen irrespective of his or her religion. The modern notion of secularism is based upon two fold understandings. Firstly, state must be equidistance from all religions should adopt a neutral attitude with respect to any religion. Secondly, the state must not have any relation with any religion, i.e. state must not have a religion of its own. Secularism is one among the fundamental aspects of the Constitution of India. However, being secular does not mean irreligious, as explained by the great Statesman-Philosopher Dr. Radhakrishnan. The concept of secularism advocated in the Constitution of India is based upon the idea of justice, liberty, equality and dignity of individual as well as their groups. The manuscript briefly states and explains the constitutional, statutory, and judicial framework of India’s religion-state relations, and the unique balance that is found in that framework between secularism and freedom of religion—namely that, in India, the law of the land determines the scope of religion in society; it is not religion that determines the scope of the law. Keywords: India, religion, state, law, constitution, judiciary. INTRODUCTION The term religion has no compact or exact definition. In any case, when it comes to acknowledgement of religion as conviction or belief, it needs legitimate justification to qualify as knowledge or as the number same of religious masters and religious writings articulate as way of living. When all is said in general terms, religion is an organised accumulation of belief systems, social and cultural systems, and worldviews that relates mankind to most profound sense of being and, now and again, to good values.[1] In terms of associating law and religion in context of India, state i.e. government plays an extremely critical character as it is the state that structures laws and choose the about the country. Constitutional, India is a secular nation and in this manner has no State religion. Notwithstanding, it has created throughout the years its interesting idea of secularism that is on a very basic level not the same as the parallel American idea of secularism obliging complete partition of chapel and state, as additionally from the French ideal of lacit.[2] Regardless of the acceptable amalgamation of all the fundamental principle of secularism into different provisions of the Constitution when initially enacted, its preamble did not then incorporated Secularism, and the statement in the short description of the nation called India as a "Sovereign Democratic Republic". This was, obviously, not an unintentional oversight however a decently figured choice intended to maintain a strategic distance from any hesitation that India was to receive any of the western thoughts of a mainstream secular state. Twenty-five years after the fact - by which time India's unconventional idea of secularism had been completely settled through its legal choices and state practices, the preamble to the Constitution was altered to incorporate the saying "Secular" (alongside "Socialist") to pronounce India to be a "Sovereign Socialist Secular Democratic Republic."[3] The motivation behind this Amendment was planned simply to define clearly the idea of "Secularism‟ in the Constitution. Indian Secularism does not consider a secular state as irreligious or atheistic State. India has antiquated the doctrine that state ensures all religion yet meddles with none.[4] SECULARISM IN INDIA – A PROGRESSIVE GROWTH The development of secularism started in Western Europe in nineteenth century. At first, it began with the plans splitting far from religion. Secularism entered Indian Politics without precedent for the later a large portion of the nineteenth century when English educated people of distinctive religious group created The Indian National Congress. The Congress in its session in Karachi in 1931 determined that the state ought to watches non-partisanship as to all religion. Constitution creators dodged the expression of "secular". Prof. K.T. Shah made two endeavours to present the saying by recommending an amendment. However, he failed on both instances for the reason of resistance from Dr. Ambedkar. Maybe Dr. Ambedkar felt that the utilization of the interpretation "liberty of faith, religion, belief or worship and equality of status and opportunity" in the Preamble and provisions of fundamental rights are expresses that India is a Secular State. On the other hand, 42nd amendment of the Constitution included the statement "Secular" into the Preamble of Constitution for further illumination. Secularism is a basic feature in Indian Constitution. It was held in Kasvananda v. State of Kerala, 1973 and S.R. Bommai v. Union of India, 1994. The Court further held that religion can't be blended with the secular activity of state. The general test with which the members of Constituent Assembly in 1946 were faced with was, above all else, how to suit India's assorted qualities in a current, secular state which could guarantee equivalent rights and equivalent chances to its natives. The result was a state which most researchers have portrayed as a secualr state, in spite of the fact that the notion "secular" itself was just included with the Forty-Second Amendment Act approved in 1976. LEGAL AND CONSTITUTIONAL FOUNDATIONS Constitutionally, India is a secular country, however any "wall of separation" between religion and state exists not in law or in practice - the two can, and regularly do, interface and intercede in one another's affairs inside the lawfully prescribed and judicially settled parameters. Indian secularism does not oblige an aggregate expatriation of religion from the societal or even state affairs. The main demand of secularism, as commanded by the Indian Constitution, is that the state must treat all religious ideologies and their followers totally equal and without any discrimination in all matters under its direct or indirect control. The Constitution of India holds in its part on Fundamental Rights a few provisions that stress complete and legitimate equality of its citizens and restrict any sort of religion-based discrimination between them. Among these procurements are the accompanying: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.[5] “The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them.[6] “No citizen shall, on grounds only of religion . . . be subjected to any disability, liability, restriction or condition with regard to access to or use of various public places.”[7] “No citizen shall, on grounds only of religion . . . be ineligible for, or discriminated against, in respect of any employment or office under the State.”[8] Furthermore, article 25 to 29 of the Constitution of India additionally manages individuals' right to religious freedom. Moreover there is an extensive corpus of legislative enactments in India managing, religious matters relating to various religious communities. These enactments, and in addition to the state practice, are fully in-tune to the Constitutional mandates related to secularism and parameters of religious freedoms. While piece(s) of enactment exists for each religious communities in India, Chapter 15 of the Indian Penal Code[9] is exclusively committed altogether to punishments for offenses related to religion. In various cases, the punishments for these offenses are quite rigorous. In context of civil law, the Representation of the People Act of 1951 restricts the utilization of religion and religious images/symbols with a perspective of underwriting one's candidature for elections or for contrarily influencing the election of other candidate.[10] Making an appeal to vote or refraining any individual from voting on the ground of his religion, race, caste, community, or dialect, and additionally the utilization of religious images for the advancement of the possibilities of one's own election, or for preferentially influencing the decision of any contestant, is a corrupt practice. DIMENSIONS OF INDIAN SECULARISM- THE ROLE OF STATE AND LAW So far we have seen that the Indian Constitution proposes not just to give the Indian citizen an opportunity of freedom of conscience and choice of religion, but also to keep their religion and religious undertakings out of the affairs of the state.We have also seen how, the provisions in the Constitution, keeping the state out of matters of religion (in reference to provisions specified in the Representation of People Act). After introduction to the Constitutional provisions with regard to secularism in India, it is the opportune time to discuss about the nature of secularism adopted in India. But before exchanging over to it, just have a speedy recap of what the great(s) need said in regards to secularism in Indian context. Dr. Radhakirshna clarifies that secularism doesn't mean irreligious. It implies regard to all faith and religion. Secular state does not distinguish itself with any specific religion. In Indian context, Dr. Henry Austin says that: secularism implies tolerance, generosity and understanding of majority community. In India, the presence of profound religious variation has guaranteed a conceptual reaction to issues within as well as between religions. Without taking it as a blueprint, we can look at it and gain from it, about peace between communities, community-specific rights, the rights of minorities, the permeable separation between the advanced/modern state and religion, and the abilities to oblige or accommodate the last. This is pretty much a positive connection (secularism) between religion and state as I mentioned in the earlier part of manuscript. My contention is supported by the perspectives of Supreme Court in Manohar Joshi's case, whereby Justice J.S. Verma gave dubious meaning to the term of "Hindutava" by expressing that it implies a "way of life". Again in Swamiar's case, for the very first time Supreme Court relied upon Art. 24 and Art. 26 to invalidate the provision of state legislation. In Saifuddin's case, the court expressed that the fundamental rights of Art. 25 and 26 are not limited to matters of doctrine or belief; they also extend to acts done in pursuance of religion. Going to the contention of permeable separation between religion and state, the judgment of the Supreme Court in Bhuri Nath v. State of Jammu and Kashmir[11] is of great vitality where the Hon’ble Supreme court held that the appointment of the head priest of the Vesno Devi Shrine could be controlled or done by the State. Hence by virtue of this judgment, it could be gathered that there exists an agreeable boundary or demarcation between the law or state and religion. Therefore, Secularism takes out God from the matters of the State and guarantees that nobody can be discriminated on the ground of religion.[12] The issues among and religious groups were/are satisfactorily managed by the government in Indian. For instance Anti-conversion laws were enacted to check unethical conversion of people from one individual to another. It has long history in India and some princely states enforced them as early as 1930s.[13] The first post-colonial anti-conversion laws were passed in the states of Orissa and Madhya Pradesh in the 1960s.[14] Some states enforced anti-conversion laws mainly against Muslims in early of 1980s.[15] In any case over recent years, despite of possessing such affirmative qualities, secular states, for all intents and purpose all around, have gone under an apprehensive strain. Scarcely surprising, political secularism, the principle that protects them, has hardly been subjected to extreme feedback. A few scholars have presumed that this study is morally and ethically so profound and supported that it is the time to forsake political secularism. In Indian context, it could be explained by tracing back from the communal violence after the demolition of Babri Masjid in modern day Ayodhya controversy, burning train comprising of Hindu passengers and the uproars tailing it, to the example of communal strains, a year ago in Assam that caught the headlines. This is so, because, the entire evolution of humanity has been from Ignorance and weakness, before natural and social powers for understanding of these forces clutched them. The basis of religion is obliviousness of the genuine nature of these powers, powerlessness before them the fear of the invisible almighty. Consequently, for instance, a large portion of the vedic God, say, Agni, Surya, Indra and so on were believed as representation/personification of such natural or social powers. These powers could either profit man or damage him. For e.g. timely rains could benefit agriculture, but failure or delay in rain could ruin the crops and whether there would be timely rain or not, is entirely beyond man's control. Therefore, rain was seen as the representation of Indra. Since man feels defenceless before these strengths, which can antagonistically influence his life, he needs religion as a mental support.[16] When people feel unsecure about this psychological support their emotions burst and result is Babri demolition, Godhara kand or yatras of different political parties which are organised to support the feelings of the people. We see that our Constitution secular and pragmatic. Then again, the certainty remains that despite our Constitution is pragmatic in its approach, our social order is still backward and semi-feudal, and this dichotomy give rise to a host of problems. Since in feudal or semi-feudal society religion had influential hang on men's personalities and mind, the vested interests seek to exploit this situation by perpetuating and accentuating caste and communal divisions and by sowing the seeds of discord, among the people. This activity has been stepped up in recent times.[17] Religion and case has separated people. What is it that will unite us? As I believe, sciences can be the uniting factor. By science I mean not simply material science, however, the whole logical standpoint, the exploratory investigation of our issues, and the experimental answer for those problems.[18] Therefore with the proper way of time, we have likely adjusted or attuned to secularism. This is the reason the very doctrine of secularism, regardless of "n number" of positives has been seriously criticized in most part of the world including India. I, however, am not convinced by this criticism. The feedback for secularism looks unanswerable because critics have focused on mainstream conceptions developed in largely religiously homogenous societies. It is high time for us to shift our focus and check our tendency to compare Indian virtue of secularism to that of the remaining world, instead one must start believing in it. We need a Xenophanian approach, a pre Socrates philosopher and consider that even though the Indian rule may not be absolutely true however one must be, at least, ready to accept it to be true. Consequently, we will start perceiving secularism in different light, i.e. in ethical and moral prespective, not in absolutely religious sense as such, but in context homogenization and institutional domination. Justice Katju[19] again opines that, in the forthcoming days the judiciary (if considered as state) shall have to assume a vital part in the individuals' walk towards all-round progress. This is on essentially due to the fact that, higher judiciary is objectively so placed in our Constitutional scheme that it is in a position to give correct guidance to the people. Because of their autonomous Constitutional status the Judges can take a more panoramic and long term view than other authorities. Hence, they are in a position to valiantly put to forward progressive and dynamic thoughts which will be of incredible help to the people in their battle for social and economic upliftment. CONCLUSION In light of the aforesaid it can be concluded that in an ideal secular state there ought to be admiration for all religion and state's interference should to be least in the matter of religion with the except when public order, morality or health is in question. Secularism has been one of the fundamentals of the Constitution and accordingly citizens are equal and free, irrespective of their caste colour, sex, language, religion, or status. However, the circumstances have changed after independence and many times the secular status of India was challenged for example at times of Godhara riot in Gujarat. Hostile to change laws or execution of Uniform Civil Code is generally taken as an issue to the characters of minorities and in this way an uniform agreement has not been framed in this respect. Anti-conversion laws or implementation of Uniform Civil Code is being taken as a threat to the identities of minorities and therefore a uniform consensus has not been formed in this regard. However, despite of foregoing issues issues, India has been able to balanced the multiculturalism of the society and managed to retain the secular character of its polity. While in many countries especially from the third world, a secular authority has crumbled vice versa in face of conflicting traditions. Judiciary in India has also played a vital role by balancing in a harmonious way the matter of religion. Moreover, the citizen of India should not forget the dream of framers of the constitution and the ancient philosophy of “Sarva Dharma Sambhavah”. The practice and interpretation of secularism in India have from the very beginning been, and remain, sensitive to and reconciled with the ground realities. This sensitivity and reconciliation make India‘s religion-state relations both unique and fascinating. A study of India‘s particular models of secularism and religious liberty reveals an appreciable balance of religious and secular interests. A Secular State must strive to achieve a balance between the freedom of religion and the right to practice religion and therefore it should reform the religion as per the provision of the constitution. However, it is very complicated and difficult for the State to reform the religion particularly when personal law is in question. The State makes the law or interferes with religious norms of the persons only when the existing religious norms seem to have unjustified and have done a lot of cruelty to the section of citizens. Sati, Child marriage, female foeticide, untouchability, suppression of Scheduled castes and Scheduled tribes etc could be conceived as epitome of this phenomenon.
[1]*SIDDHARTH BADKUL, B.A., LL.B. (Hons.), Semester VII, University of Petroleum & Energy Studies, Dehradun While religion is difficult to define, one standard model of religion, used in religious studies courses, was proposed by Clifford Geertz, who simply called it a "cultural system" (Clifford Geertz, Religion as a Cultural System, 1973). A critique of Geertz's model by Talal Asad categorized religion as "an anthropological category." (Talal Asad, The Construction of Religion as an Anthropological Category, 1982.) [2] The French concept of lacité has been described ―as an essential compromise whereby religion is relegated entirely to the private sphere and has no place in public life whatsoever.â€- Rachael F. Goldfarb, Comment, Taking the „Pulpit‟ Out of the “Bully Pulpit”: The Establishment Clause and Presidential Appeals to Divine Authority, 24 PENN ST. INT‘L L. REV. 209, 216 (2005). [3] INDIA CONST. Preamble amended by the Constitution (Forty-Second Amendment) Act, 1976 (enforced since Jan. 3, 1977). [4] Vasudev v. Vamanji, ILR 1881 Bom.80 [5] INDIA CONST. art. 14. [6] Id. art. 15, cl. 1. [7] Id. art. 15, cl. 2. [8] Id. art. 16, cl. 2. [9] INDIAN PENAL CODE 295–98 (1860) [10] See Representation of the People Act, No. 43 of 1951, 123(3), available at http://indiacode.nic.in/fullact1.asp?tfnm=195143. [11] AIR 1997 SC 1711 [12] St. Xavier‘s College v. State of Gujarat, AIR 1974 SC 19 at 1414. [13] Faisal Mohammad Ali ,CHRISTIAN ANGER AT CONVERSION LAW, BBC News (Central India),Aug, 2006,available at http;//news.bbc.co.uk/2/hi/south.asia/5246328.stm. [14] The Orissa Freedom of Religion Act,1967 and Madhya Pradesh Dharma Swantantraya Adhiniyam,1968 [15] Arpita Anant, ANTI-CONVERSION LAWS, THE HINDU, available at http://www.hinduonnet.com/thehindu/op/2002/12/17/stories/2002121700110200.htm., as accessed on 04.09. 10 [16] Justice M.Katju, LAW, RELIGION AND POLITICS, J.T.R.I. JOURNAL – First Year, Issue 2 Year April- June, 1995 [17] Id. [18] Id. [19] Id.
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