November 27, 2020

RELIGION AND THE LAW

INTRODUCTION

India is the place of four major religions: Hinduism, Sikhism, Buddhism, Jainism and some significant numbers of Muslims and Christians living in the country. Eighteenth to the mid twentieth century, the term “Anglo-Muhammadan Law” was developed during British colonial rule in India.

The Indian Constitution in the administration of Hindu or Muslim ‘personal law’ includes some aspects of religious law, which are been applied in certain contexts such as marriage, divorce or property disputes. Jains, Sikhs and Buddhists currently come under the Hindu personal law.

Religion is the very basis of life also a way of living, with the moral duty of following rules of the religion which enters the boundary of law, whereby by making a person compelled to follow the rules decided by the state. Before the concept of state, people were bound to follow religion. Thus, religion plays a vital role in maintaining the law and orders in ancient times and hence, it makes evident that religion and law are dependent on each other.

RELIGION IN INDIA

India is a country which is rich in religious diversity and religious tolerance is established in both law and custom. Religion has played a vital role in country’s culture throughout the history. According to the Indian census, 80.5% of the total population accounts for Hinduism, Islam about 13.4%, Christianity at 2.3% and Sikhism at 1.9%. The existing religious belief in India is a result of existence and birth of native religions, assimilation and social integration of religions which was brought to the region by travelers, traders, immigrants, and even invaders and conquerors.

The ancient India had two other philosophical streams of thought, i.e., Shramana and Vedic religion which is being existed since thousands of years. The continuations of Shramana traditions are the other native religion Buddhism and Jainism, while continuation of the Vedic tradition is the modern Hinduism. The other ancient religions which are Zoroastrianism and Judaism also have history in India and each has several thousand Indian-adherents.

India’s religions extends to law, the constitution of India says the citizens of India have the fundamental right to freedom of religion, it also says that the nation is secular republic; hence the citizen has the right to worship and propagate any kind of religion and faith.

1. Vedic Religion (Hinduism)

Hinduism is regarded as the oldest religion in the entire world, with its roots tracing back to prehistoric times (or say 5000 years). The Mesolithic Rock Paintings depicting dance and rituals are the evidence of prehistoric religion in India. The Neolithic pastoralists who inhabit the Indus River valley are suggestive of spiritual practices.

South Asian Stone Age Sites:

· The Bhimbetka Rock Shelters (Central Madhya Pradesh)

· The Kupgal petroglyphs (Eastern Karnataka)

Periods:

· Indus Valley Civilization (from 3300–1700 BCE)

Ø Hinduism’s origins, Vedic religion and other Indian Civilizations include cultural elements of the Indus Valley Civilization.

Ø Rigveda is the oldest text of Hinduism.

· Vedic Period (1700–1100 BCE)

· Epic and Puranic Period

Ø Ramayana and Mahabharata were written (500–100 BCE)

School of Thoughts: (After 200CE)

· Samkhya

· Yoga

· Nyaya

· Vaisheshika

· Purva-Mimamsa

· Vedanta

· Cārvāka (6thCentury)

Ø The most explicitly atheistic school of Indian philosophy, thoroughly materialistic and anti-religious philosophical

Ø This is classified as a nastika (“heterodox”) system, the other 6 school of thoughts are classified as orthodox system.

Other Indian philosophies generally regarded as atheistic include Classical Samkhya and Purva Mimamsa.

2. Shramana religion (Jainism and Buddhism)

599–527 BC, though possibly 549–477 BC, Mahavira, the 24th Jain Tirthankara stressed five vows,

i. Non-violence – Ahimsa.

ii. Truth – Satya.

iii. Non-stealing – Achaurya or Asteya.

iv. Celibacy/Chastity – Brahmacharya.

v. Non-attachment/Non-possession – Aparigraha

The founder of Buddhism, Gauthama Buddha was born to Shakya during Magadha (546-324BCE). He is a native of plains of Lumbini (southern Nepal). Buddhism was peaked in India during the reign of Asoka, the Mauryan Empire, who patronized Buddhism in Indian continent in 3rd century BCE. Buddhism was spread across Asia but suffered a loss royal patronage by Kushal Empire, Magadha Kingdom and Kosala Kingdom. During 400BCE and 1000CE, Hinduism expanded as Buddhism declined in India. Post which Buddhism subsequently became extinct in India.

3. Islamic Religion

Islam started to become a major religion in India as ‘Muslims’ when the Arab traders came to India during 7th Century. Islam took place under Delhi Sultanate (1206–1526) and Mughal Empire (aided by the mystic Sufi tradition), thus it spread all over India.

4. Sikh Religion

When North India was under Muslim rule during 14th-17th Century, the Bhakti Movement was initiated by the group of sants (teachers) across north and south India. Chaitanya Mahaprabhu, Vallabha, Surdas, Meera Bai, Kabir, Tulsidas, Ravidas, Namdeo, Tukaram and other mystics headed the Bhakti Movement to cast their overwhelming love for god. This movement was same as the Sufi movement of Shia Muslims. Muslims adopted it as a Sufism while Hindus as Vaisanava Bhakti.

The founder of Sikhism was Guru Nanak (1469–1539). Sikhism draws its elements from both Hinduism and Islam. This religion was bought up to know the difference between existing religious beliefs and existing religious superstitions and practices. Though Sufi and Bhakti saints are recognized by Guru Granth Sahib but they do not form the main basis of Sikhism.

5. Christian Religion

Christianity came through the European Colonization and Protestant Missionary Efforts. According to the history, Christianity is in India since the 1st Century.

6. Communalism

Communalism has always played a major role in religious history or today’s India. As a result of British Raj’s ‘Divide and Rule’, India was lead to partitioned on the basis of religion.

· Muslim-majority Dominion

Ø The Islamic Republic of Pakistan

Ø The People’s Republic of Bangladesh

· Hindu-majority

Ø Union of India (Republic of India)

This partition (1947) instigated the riot among the Hindus, Muslims and Sikhs in India (500,000 died as a result of the violence). Pakistan experienced a largest number of mass migrations in the modern history. Since the Independence of India, India experienced much violence between majority Hindus and Minority Muslims. Now, India is a Secular state and recognizes no official religion as such.

LAW IN INDIA

In the preamble of Indian Constitution, it says India is a “sovereign socialist secular democratic republic” country, the world ‘Secular was inserted by the 42nd Amendment Act, 1976. Secularism mandates equal treatment and tolerance of every religion in India. Since India does not have any official language, people have the right to practice, preach, and propagate any religion.

In the case of S. R. Bommai vs. Union of India, the Supreme Court of India held that secularism is an integral part of the Indian Constitution. The Constitution also considers Right to Freedom of Religion as a Fundamental Right. The Uniform Civil code also suggests for citizen as Directive Principle however, it is not constitutionally enforceable as it is it mere a moral duty.

In the case of Pannalal Bansilal v State of Andhra Pradesh, 1996, the Supreme Court held that, enactment of a uniform civil code all at once may be counterproductive to the unity and only a gradual progressive change should be brought about in.

In Maharishi Avadesh v Union of India, 1994, a petition was dismissed by Supreme Court seeking Writ of Mandamus against Union of India to introduce a common civil code and thus laid responsibility, introduced to the legislature.

Legal History

The legal history is connected to how the civilizations developed and the set in the social history. During Twentieth century, the legal history was viewed more in contextualized manner. The historians looked legal institutions as complex system of rules, which change, resist, adapt or promote certain aspects of civil society. Once the case outcomes, transaction costs, number of cases settled have been analyzed, analysis of the legal institutions, procedures, briefs and practices begun which gave a complex picture of law and society. Then the jurisprudence, case law and civil codes were achieved.

Ø Islamic Law

The major legal systems developed in the middle ages which was Islamic law and jurisprudence. These two are the third most common legal system after civil and common law systems. The methodology of legal president by analogy (Oiyas) which was used in early Islamic law was similar to common law system, these similarities laid to the foundations for the common law as an integrated whole. According to Justice Gamal Moursi Badr, Islamic law is not written law like common law and is based on Quran. Islamic law is called as lawyer’s law if common law is judge’s law because the provisions of Islamic law are to be first sought in teachings of authoritative jurists (Ulema).

Islamic jurists developed many legal institutions during the classical period of Islamic law and jurisprudence (Islamic golden age- 7th to 13th century) several fundamental common law institutions were adapted legal institutions in Islamic law and jurisprudence.

Family Law

In India, there are different Family Laws for different religion and there is no uniform civil code. During Bristish Raj, when Warren Hastings created provisions prescribing Hindu law for Hindus and Islamic law for Muslims (in 1772) for litigation relating to personal matters, this lead to system of distinction between each religion.

Personal laws exist only for Hindus, Muslims, Christians, Zoroastrians, and Jews religions. ‘Brahmoism’ is the only Indian religion which is exclusively covered under the secular ‘civil’ law of India (Act III of 1872). For legal purposes, Buddhists, Jains and Sikhs are classified as Hindus and are subjected to Hindu personal law.

· Mohammedan Law

Indian Mohammedan Law is bases on the sharia and fiqh. Despite of being uncodified, but it has same legal status as codified. The development of this law is majorly based on judicial precedent.

· Christian Law

As for Christians, Christian law in India has emerged as a separate branch of law which is mostly based on specific statues (Ex. Christian law of Succession and Divorce in India) and English Law also customary practices and precedents.

Christian law has same sub branches like laws on marriage, divorce, property, adoption, guardianship, restitution, maintenance etc., just like other family laws.

· Hindu Law

In India as far as Hindus are concerned, they have specific branch of law, Hindu Law. This law is enacted after knowing the major problems affecting family life among Hindus. The 1st attempt made by the Parliament of India for bringing up Hindu code was a failure. Buddhists, Jains and Sikhs are classified as Hindus and are subjected to Hindu personal law.

CONCLUSION

At the end of the discussion we can conclude that the law and religion are integral part of each other and they are interdependent on each other. Religion is the very basis for formulation of the law anywhere in the world, as seen, from ancient to modern world. It is not just proved by Hindu laws but also evident from several other personal laws and legal histories.

Author Details: Anu C Nanda (REVA University, Bangalore)

The views of the author are personal only. (if any)

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