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Religion, Law and India



India, which has the second largest population in the world (over 1.25 billion), is also considered as the birth place of the four major world religion: Hinduism, Jainism, Buddhism, Sikhism. Yet, India is one of the most diverse nations in terms of the religion, further Jain, Sikh and Buddhist currently comes under the umbrella of Hindu, although there was time when many people were not happy with this situation and there have also been campaigns to have these religions administer separately. So now the question arises that what is the definition of Religion? Well, the oxford dictionary defines religion as the "Belief in and worship of a superhuman controlling power, especially a personal god or gods" and Emile Durkheim defined religion as "A unified system of beliefs and practices relative to sacred things set apart and forbidden- beliefs and practices which unite into one single moral called Church". However Swami Vivekananda said "Religion is based on faith and belief and in most cases consists only of different sect of theories that is the reason why we find all religion quarreling with each other".
From these definitions we can say that there is no universal definition as to what exactly religion is. This appears to near unanimity that religion, generally, is a belief or faith in the existence of a supernatural being and the precepts which people follow for attaining salvation more of like a driving force.

Religion in India 
The term religion is not expressly defined anywhere in the Indian Constitution but Supreme Court in several cases tried to defined religion as in case of Commissioner H.R.E. v L.T. Swammiar 1954, SC held that "Religion is a matter of faith with individuals or communities and it is not necessarily theistic. A religion has its basis in a system of beliefs or doctrines, which are regarded by those who prefer that religion as conducive to their lay a code ethical rule for its followers to accept"
India is a secular state with no state religion where all religions are recognized and can peacefully co-exist. Religion in India is characterized by a diversity of religious beliefs and practices.
Throughout India’s history, religion has been an important part of country’s culture. Religious diversity and religious tolerance are both established in the country by the law. The Indian constitution has declared the right to freedom of religion to be a fundamental right. Among the seven nations of South Asia forming the South Asian Association for Regional Cooperation (SAARC), India stands out as the only country that has declared itself a secular state. In each of the remaining six nations, one or another spiritual faith has the status of the officially adopted or legally promoted religion- Buddhism in Bhutan and Sri Lanka, Hinduism in Nepal and Islam in Bangladesh, Maldives, and Pakistan.

              
So Constitutionally, India is a secular country and therefore has no State religion thus there is freedom of religion as fundamental right (Art.25 to 28). Despite the clear incorporation of the principles of religion in the constitution, its preamble did not then include the word secular. This was of course not omission rather this was intentionally done to avoid any misgiving. 26 years later the preamble to the Constitution was amended to include the word "secular" (along with socialist) in 42nd amendment act of the Indian constitution in 1976, to declare India to be a "Sovereign Socialist Secular Democratic and Republic". So now Secularism has been pronounced by the Supreme Court of India to be a part of the basic structure of the Indian constitution and cannot be done away with even by a constitutional amendment. The controversy around religion in India has been marked by a general hesitation on the part of the Supreme Court of India to intervene in matters of religion. There was a famous case of The State of Bombay vs. Narsu Appa Mali 1951, wherein the statutory prohibition of on polygamy among the Hindus was questioned as contravening the right to freedom of religion. The Bombay High Court ruled that this was a constitutional measure of reform and upheld the impugned provision as valid. The Court went on to add that even though this was valid as a reform measure (and hence not violative of the freedom of religion) personal law doesn’t have to comply with part III of the constitution that is fundamental right. Even though customs are part of the laws that are required to comply with the fundamental rights provisions of the constitution, personal law is distinct from the custom and falls beyond the pale of the constitutional rights review. As an aside, the court add that since polygamy had economic, religious and social justifications, it could not be regarded as discrimination only of the grounds of sex and if reviewed, couldn’t be held to be unconstitutional. This case is important because several judgments from Supreme Court of India have used it as a point of reference subsequently. The Indian Young lawyers’ Association vs. State Of Kerala (Sabarimala Case) was another historical case of freedom of religion, where SC passed the judgment in 4:1 on whether women between the ages of 10 and 50 should be allowed to enter Kerala’s Sabarimala temple, it was held that temples practice to exclude woman was unconstitutional and the practice violated the fundamental right to freedom of religion Article 25(1) of female worshippers. The court held that Sabarimala pilgrims could not be a separate sect or religious denomination. The customs are subjected to constitutional validity and prohibition of women entry to temple in violation of the Fundamental Rights. Justice Chandrachud said, “Your right to pray as a woman is not dependent on any law, it is a constitutional right”. This case was big relief to the well wishers of the Constitution as Supreme Court again proved itself as their Guardian Angel.
In 2019 The Parliament passed The Citizenship amendment act and amended the citizenship act of 1955 by providing a path to Indian Citizenship for migrants of Hindu, Sikh, Buddhist, Jain Parsi and Christian from Afghanistan, Bangladesh and Pakistan who had faced religious persecution in these Non-Secular (Islamic) countries (Before Dec. 31 2014). It was argued by many political leaders that this act is discrimination on the basis of religion and it was also argued that this act is against the principle of secularism and there were protest all over the countries but later Government and Eminent lawyers like Harish Salve had tried to clear the doubts that this act is not discriminative rather it is a intelligible differentia distinguishing persons which have rational nexus to the object of classification.
So there have been many issues regarding religion, freedom of religion in India but still India, the world’s largest democracy remains as an example for world as a Secular state.
               

         [Views are personal and author doesn’t intend to disrespect any person or any community]

Comments

  1. As of now, and as i read ,one thing which is very clear is that the word "Secularism" has not been emphasized so much before. There have been series of incidents which lead to over emphasis on the word secularism and one of such incident has been execution of CAA. I'm pretty certain that 80% approx of those people who went blindly after the word secularism and shouted at the peak of their voices how this very pillar of the Constitution has been shaken and is under threat did not even correctly knew what did this word mean, where did came from, whom does it imply to, what are its limitations etc. To be very honest even i didnot know that this word was added to the Preamble at the time of National emergency in India rather than by BR Ambedkar. It is really interesting that the writter, the compiler of the constitution must have gone through this word "Secular" while he was reading the constitution of other nations but omitted it which definetly would have been done for the nation's good. But the National Congress under its leadership and for their personal gains and for vote soliciting politics included this word in the Constitution and no body questioned it but the one's who did were doomed forever.
    It always comes to my mind why didn't people question the origin of Secularism ?

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    Replies
    1. Well, perhaps this is right that secularism has never been emphasized this much that there were people on road and protesting and some of them were doing violence for the violation of secularism and it would not be incorrect if we say that majority of the protesters did not know about the secularism. And if we talk about the "secularism" then it is true that it was added by the 42nd Amendment in 1976, but the principles of secularism was discussed in the constituent assembly while they were making the constitution and that is why freedom of religion is available to every citizen of India as their fundamental right. Ans In 1970s what Congress party was in to? I don't think that even congress party can justify those acts that what they did to democracy, What they did with Socialism, what they did with constitutionalism and what they did with the cardinal principle of separation of power specially with judiciary.
      However apart from that it's great to hear from you specially when you are not from legal field but yes you understand that you are a component of "society", for which these laws exist.

      Delete
  2. A law abiding citizen of the nation.

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