Author: Joysree Das, Student at Presidency University, Bengaluru, Karnataka.
According to John Austin, “Law is the aggregate set of rules set by a man as politically superior or sovereign to men, as political subjects.” According to Hans Kelsen, “Law is a normative science.” Thus, there are different definitions of the term ‘law’ given by various philosophers and jurists. In simple terms, law can be defined as a set of rules and regulations established by any authority. Religion on the other hand, according to Emile Durkheim, consists of “things that surpass the limits of our knowledge” whereas few others define religion as a set of beliefs and worship in a superhuman specifically a God/Goddess.
Both the concepts are different but someway both are interrelated to each other. The relationship revolves around the legal understanding and judicial discourses on the variety of religious phenomena in addition to the strictly legal issues that relate to religious freedom. A number of scholarly articles have also been published covering the issue of the nexus between religion and law that indicates the existence of a unique link between the two disciplines. They include international journals, such as the Journal of Law and Religion and the Ecclesiastical Law Journal, which were founded in 1983 and 1999 respectively. The purpose of current paper, therefore, is to explain the links between the two disciplines. The paper will seek to examine how law can be influenced by religion with a view of identifying the links that exist between them.
- Legal understanding
- Judicial discourses
LAW AND RELIGION
From the Latin word religio (respect for what is sacred) and religare (to bind in the sense of an obligation), religion describes various systems of belief and practice concerning what people determines to be sacred or spiritual. If we refer to history of leaders across the world, it will be found that they had used religious narratives, symbols and traditions while giving more meaning to life. In every culture, there is some form of religion which is practiced publicly, which include feasts, festivals, Gods/Goddesses, marriage and funeral services etc.
Social scientists recognize that the existence of religion is in the form of organized and integrated set of beliefs and norms centered on basic social needs and values. If we look at the norms through legal aspect, then we can find that the regulation of law in the state is possible only by focusing on social needs and opinions of the general public. For example, it is believed according to the religions that the dead body of the deceased should be buried in a proper and a dignified manner, keeping all the norms and rituals in force. When looked into legal aspect, the Apex court viewed that Right to Dignity is available even after death and it falls under Article 21 of the Indian Constitution. The court also held that it is the obligation of the state to have a decent burial to the deceased person as per their religious belief.
Religion is not only the basis of life but it is also a way of living because every religion has specific norms and beliefs which gradually become habit of their life and hence becomes a way of living. Perhaps, the moral duty to follow particular order or a norm enters the boundary of law where people are compelled to follow a law and it is made sure that they are not broken or violated. Hence, religion and law are interdependent on each other. It is also true that far before the origin of states and their authority, people followed the norms of their religion as laws and duties. Therefore, religion played a very vital role in maintaining law and order in different parts of the world in different manners.
If we talk about Southern Asia, ancient India and China had many historically independent schools of legal theory and practice, representing distinct traditions of law. Religious texts such as the Arthashastra (400BC), the Manusmriti (100AD) were considered as an authoritative source of legal guidance. The South Eastern part of Asia was accompanied by Manu’s central philosophy of tolerance and pluralism.
The Islamic law and jurisprudence is now the third most common legal system after the civil and common law systems. The Qiyas (reasoning by analogy) which were used to interpret law in Islam was similar to that of the later common law system. According to the words of Justice Gamal Moursi Badr, “Islamic law is like common law where it is not a written law based entirely on the Quran but that the provisions of Islamic law are to be sought first and foremost in the teachings of the authoritative jurists (Ulema).” Hence, Islamic law may be called as a lawyer’s law if common law is a judge’s law.
RELIGION AND LAW IN INDIA
India is said to be a land of religious and cultural diversities and religious tolerance is established in both law and custom. If we look at the history of our country, we can find that a vast number of Indians associate themselves with religion and religion has always been an important part of the country’s culture. According to the Indian census, about 80.5% of India’s total population is accompanied by Hinduism, followed by Islam and Christianity with 13.4% and 2.3% respectively. Sikhism holds the fourth position with 1.9% of the total population. Stating the hospitality of Hinduism towards all other religions, John Hardon says “However, the most significant feature of current Hinduism is its creation of a non-Hindu State, in which all religions are equal.”
Buddhism and Jainism are other native religions of India. There were two philosophical streams of thought in ancient India-
- Shramana religion- Shramanas were those who were particularly known as monks. They believed in ascetic lifestyle in pursuit of spiritual liberation.
- Vedic religion- A polytheistic sacrificial religion involving the worship of various male divinities most of whom were connected with the sky and natural phenomenon.
These are parallel traditions that have existed side by side for thousands of years. Both Buddhism and Jainism are continuations of Shramana traditions and modern Hinduism is the continuation of Vedic tradition.
India’s religious vicinity extends to the highest levels of India’s administration. The 42nd Amendment of the Constitution of India included the term ‘Secular’ and insists the citizens that the nation must uphold the right of citizens to freely worship and propagate any religion or faith (with activities subject to reasonable restrictions for the sake of morality, law and order etc). In fact, right to freedom of religion has been declared as a fundamental right by the Constitution of India under Art. 25 to Art. 28.
Article 25 of the Indian Constitution says-
Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) 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.
Article 26 of the Indian Constitution says-
Freedom to manage religious affairs.—Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law.
Article 27 of the Indian Constitution says-
Freedom as to payment of taxes for promotion of any particular religion.—No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
Article 28 of the Indian Constitution says-
Freedom as to attendance at religious instruction or religious worship in certain educational institutions.—(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds. (2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution. (3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
Indian citizens are generally tolerant of each other’s religions and every citizen of the country successfully retain secularism among each other. Although inter-religious marriage is not seen into existence so much due to religious conflicts, but still the laws that prevail in our country are such that they keep the religious principles in a respectful manner. However, in most of the cases, the causes of religious conflicts are more of political nature rather than that of ideological nature.
LAW AND HINDUISM
Hinduism is often regarded as the oldest religion in the world which existed from pre-historic times i.e. around 5000 years back. The Mesolithic rock paintings depicting dances and rituals, Neolithic pastoralists who were inhabited in the Valley of River Indus, are found burying the dead bodies in a manner of spiritual practices that portrayed perks of afterlife and belief in magic. Also if we talk about the people of Harappa of the Indus Valley Civilization (3300-1700 BCE), we can find traces that the inhabitants of the Indus and Ghaggar-Hakra river valleys used to worship an important mother goddess, who symbolized fertility. Also, a linga-yoni, similar to that of a Shivaling has also been found.
In the case of Right to Privacy, Justice Sanjay Kishan Kaul had raised the question of dharma (justice) adharma (injustice) in his concurrent order of 47 pages. He had recalled the Sanskrit Verse of The Shrimad Bhagavad Gita which goes-
‘Yada Yada hi dharmasya, glanirbhavati bharata; abhyutthanam adharmasya, tadaatmanam srujamyaham.
Paritranaaya sadunaam, vinashayacha dushkritaam; dharmasansthaapanarthaya sambhavami yuge yuge.’
Together they mean: ‘Whenever righteousness declines and unrighteousness is rampant, I manifest myself. I manifest myself from age to age to defend the pious, destroy the wicked and strengthen righteousness.’
Justice Kaul also brings up the fact that the origin of Article 14 Article 21 of the Indian Constitution is traced in the Bhagavad Gita. It is evident prima facie that his words refers to government’s declaration on the right to privacy in the scheme of CIDR of Aadhar numbers as adharma, or evil. The verdict in this case is said to be historic and of global significance as it establishes dharma (righteousness) by destroying adharma (the evil).
LAW AND ISLAM
The arrival of Islam in the Indian subcontinent was in the early 7th century with the advent of Arab traders. Gradually it started becoming a major religion during the conquest of the Muslims in India, when Islam spread out vastly in the country under the Delhi Sultanate (1206-1526) and the Mughal Empire which was aided by the mystic Sufi tradition. Even the Shariat Act, 1937 which deals with the law of marriage, succession etc. contains of various customs and religious practices of Islam which has been given recognition by the East India Company is still binding on the Muslims today.
Muslim personal law is also known as Mohammedan law and despite being largely uncodified, it has the same legal status as other codified statutes. Judiciary and the judicial precedents are the main basis of the development of Mohammedan law. Justice V.R Krishna Iyer made major contributions in matters of interpretation and application of Muslim personal laws like law of dissolution of marriage.
LAW AND CHRISTIANITY
There is a distinct branch of law for the Christians which is known as Christian Law, mostly based on specific statutes. Christian Law of Succession and Divorce has undergone many changes in recent years. The Indian Divorce Act (2001) brought up considerable changes in the field of divorce. Now Christian law in India has gradually become a separate branch of law despite being based on English law to a great extent. Moreover, there are laws that originated from customary practices and judicial precedents.
After all these discussions, we can finally observe Hindu law is the oldest among all the laws of the world. It originated not simply as a religion but as a way of living with the advent of Vedic Shastras and Manu’s Scripts and it played a vital role in formulation of modern laws, personal laws for different religious groups in India.
We can also finally conclude at the end that law and religion are integral part of each other and religion is the very basis of formulation of law. One of the basic aim of law or legal system is to protect and value the beliefs and sentiments of all the citizens and keep a good eye on social interests. As religion makes a way of living to the people, therefore, it is natural that their sentiments and practices will be as per their way of living.
- N Shukla’s Constitution of India (13th edition)
- Bhagavad Gita by A. Kuppuswami
 Durkheim 1915; Fasching and deChant 2001
 Ashray Adhikar Abhiyan v. Union of India, 562, 143 (2002)
 Justice K.S Puttaswamy v. Union of India, 10, 1 (2017)
 The Shrimad Bhagavad Gita, Chapter 4 Verse 7
 The Shrimad Bhagavad Gita, Chapter 4 Verse 8
 Right to equality before law
 Right to protection of life and liberty
 A. Yousuf Rawther vs Sowramma, 261, 36 (1971)