Religion Perfect Law; Myth or Reality
Between Law and Religion it has always been a close relationship, although they are two totally different concepts. The connecting element is represented by the human being. Religion teaches us to be good, to respect our peers and so does the Law as a legal entity. By laws we have to contribute to the social order. In any constitutional state, laws are made to be respected, and he who violates them must take responsibility for their own acts. Therefore, it comes out naturally that both Religion and Law have only one goal; to arrange, to establish standards of decency, in order to live in a sinless society like the Church may say or no offence society like the Law would say.
The story of civilization has two dynamic components, among many, namely Law and Religion, which is a fast-growing disciple in the contemporary world. From ancient times, Law and Religion have interacted, jointly operated and, at times, mutually fought to overpower each other. In many vintage culture and bygone societies, the two have been a blended brew and even to this day, in many communities and countries, religion actively or passively affect law or is a component thereof; but while law holds religion in leash, generally speaking, in no country has law succeeded in extinguishing religion.
Some States, with secular veneer, have state religions and, on the contrary, several states, where religious communities flourish, are secular in character. Another point to be noted in this jurisdiction is that profession and practice often vary. Broadly states, Religion, vis-à-vis Law, is fighting a losing battle but is still die-hard. India, a land of ubiquitous ‘holies’, fighting faiths and rationalist rebels, Religion-Law equation in a country notorious for multiple religious and proliferous pantheons projecting into politics, State and the Law, and yet, constitutionally committed to a legal system in texture non-religious but not anti-religious. Religion pluralism and legal secularism are constitutionally harmonized in ‘Law India’.
Yet, a historical, jurisprudential, political and pragmatic examination of Law and Religion in India may be instructive, even illuminating, revealing the pathology of secular distortions when pressurized by religions and the technology of the management of hostile religions and denominations in the context of a crowd of communities, castes and minorities drawing dividends from religion-related backward status.1
Religion and Law: Historical Perspective
It is in this world spectacle of the spiritual heritage of mankind and the varying models of religion-state relation that we have to examine and appreciate the religion-state relation in India.
Religio-cultural pluralism is India’s past, present and future; indeed her heart and soul. No religion is foreign to India; nor is India a foreign land for any religion.
Throughout its history India has observed the principle of equality of all religions and of their followers. Even when hereditary rulers belonged to a dynasty professing a perticular religion – Hinus, Budhists, Muslims or Sikh – they did not impose their religion on others and allow the followers of all religion to freely profess and practice their own respective faiths.2
The old-age tradition was inherited by the country from its past at the time of the advent of independence and of enforcement of a Constitution over two years later.
India is a home state of the largest number of Hindus, and the second largest numbers of Muslims, in the entire world. Being home also to the millions of Budhists and Christians, this country indeed qualifies to be called th only adobe of all the four world religions together. Among the citizens of India there are sizable numbers of followers also of several other religions including the Jain, Sikh, Jew and Bahai faiths. In the pluralistic and multi-religious society in India religious tolerance and religious values have always had, and continue to have, a strong influence.
As stated above, in all other South Asian countries surrounding India one or another religion has the status of the official or otherwise privileged status. In all rhe nations India stands out as the only secular state having no state religion and no single officially patronized religion. Religion-State relations in this country are in fact unique in every sense of the term.3
The Concept of Religion
One is tempted to agree with Pannam that religion as a word conveys an air of elusive certainty; and as he stresses this very suggestion of form camouflages a complete inner vagueness.4 yet no one can deny the importance of attempting a workable definition, for such definition would determine the question of the application of Article 25(1).
As far back as 1889, Field J. said;
The term “Religion” has reference to one’s view of his relation to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will.5
This theistic approach was later approved by Hughes J. in a slight different way;
The essence of religion is belief in a relation to God involving duties superior to those arising from any human relation….. One cannot speak of religious liberty with proper appreciation of its essential and historic significance, without assuming the existance of a belief in a supreme allegiance to the will of God.6
Karl Marx7 says:
Man makes religion, religion does not make man. In other distinction, that no one religion should be accorded special privileges in national life or international relations for that would be a violation of the basic principles of democracy and contrary to the best interests of religion and government.
No person should suffer any form of disability or discrimination because of his religion but all alike should be free to share to the fullest degrww in the common life.
What Is Religion?
The Constitution uses but does not define the term/expression religion and religious denomination and therefore the Court have found it necessary to explain the meaning and connotation of their word’s, the Supreme Court has observed that;
In the background of the provisions of the constitution and the light shed by judicial precedent we may say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of man. It must be capable of expression in world and dead, such as worship or ritual.8
Definition of Religion
1. Ambros Bierce;
Religion: a daughter of Hope and Fear, explaning to ignorance the nature of the unknown.9
2. Clifford Geertz;
Religion is a system of symbols which act’s to establish powerful, pervasive and long-lasting moods and motivations in men by formulating conceptions at a general order of existence and clothing these conceptions seems uniquely realistic.
3. William James;
Religion…..shall means for us the feelings, acts and experiences of individual men in their solitude, so far as they apprehend themselves to stand in relation to whatever they may consider the divine. Since the relation may be either moral, physical or ritual, it is evident that out of religion in the sense in which we take it, theologies, philosophies and ecclesiastical organizations may secondarily grow.
4. Karl Marx;
“Religion is the sigh of oppressed creature, the heart of a heartless world, just as it is the spirit of a spiritless situation. It is opiate of the people.”
5. Sigmund Freud;
“Religion is an illusion and derives its strength from the fact that it falls in with our instinctual desires”10
6. In General sence;
A general term used….to designate all concepts concerning the belief in god(s) and goddess(es) as well as other spiritual beings or transcendental ultimate concerns”11
Concept of Law;
Today, in common language the word Law has assigned three meanings; justice, equality and law. The first is understood as the higher value or sense of entitlement, to give everyone which belong to (by law). The second, meaning is seen as that which is created by applying state law, the action itself to do justice, that situation in which injustice is removed. The last one is understood as the justice embodied in the law; it represent the way in which justice is done.
Law can be defined as a system of rules of conduct, developed or recognised by the state power that guides human behavior in accordance with the value, of that society, establishing legal rights and obligations of which mandatory abidance is provided, when needed by the coercive force of public ower.12
The existance of the law is given by need to establish social rules, rules of conduct that are imperative. Law becomes a necessary tool for any society in the establishment of rules according to certain socia values. They show as a unitary system of rules of conduct issued by state power or appeared in another form (that habit, for instance) whose mandatory compliance is ensured, if necessary, by coercive force of the state.13
Understanding the evolution of the law over time implies the knowledge – among others – of shaping and devolping specific ways of expressing the essence and its content in different historical stages.14
1. The system of rules which a particular country or community recognize as regulating that actions of its members and which it may enforce by the imposition of penalties.
2. A rule defining correct procedure or behavior in a sport.
3. A statement of fact, deduced from observation, to the effect that a particular nature or scientific phenomenon always occurs if certain conditions are present.
4. The body of divine commandments as expressed in the Bible or other religious texts.
When we are discussing law it is important to define the term, from the below you will probably decide it is not possible to define what law is, but is possible to describe what it does and what rules apply. This is essentially a philosophical question, which probably has no answer, but some theorists have attempted to do so.
We shall be looking at the writings and thoughts of philosophers and jurists (legal scholars) each named person should be considered as an authority in his field whose opinions are worthy of respect.
What Is Law?
It is possible to describe law as the body of official rules and regulations, generally found in constitutions, legislation, judicial opinions, and the like, that is used to govern a society and to control the behavior of its members, so Law is a formal mechanism of social control. Legal systems are particular ways of establishing and maintaining social order.15
Although “the Law” may seem to be abstract and far removed from everyday life, it actually is a framework for much of what you do. Perhaps you get a traffic ticket or what a local store to replace a defective toaster you purchased. Perhaps you have been called for jury duty or must testify as a witness to an accident. Perhaps you want to stop a road widening project near your home, ponder the issues of prayer in school or abortion, or must see that the provisions of a will are carried out. And certainly every year you must file an income tax return. Each of these scenarios involves the law. What is law, and where does it come from?
Law is a set of rules that guides our conduct in society and is enforceable through public agencies. Our relations with one another are governed by many rules of conduct - from important concepts of ethics band fair play to minor etiquette matters such as which fork to use and how to introduce strangers to one another. We obey these rules because we desire the approval of others. If we do not follow these rules, other may treats us differently – from giving us a disapproving glare to completely ostracizing us. Generally, our government is not involved in expressing disapproval for disobedience of these kinds of rules.16
Definition’s of Law
1. John Austin17
“A rule laid down for the guidance of an intelligent being by an intelligent being having power over him”
“A body of rules fixed and enforced by a sovereign political authority.”
2. Professor Hart18
“Hart defined law as a system of rules, aunion of primary and secondary rules.”
3. St. Thomas Aquinas19
“Nothing else than an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”
4. Thomas Hobbes20
“Law is the formal glue that holds fundamentally disorganised societies together.”
5. Oliver Wendell Holmes21
“The prophecies of what the courts will do ….. are what I mean by the Law”
Religion - State Relation
In relation to the relationship between the state and religion, contains neutral freedom of religion. It implies that state has no religion of its own and attitude of indefference towards all the religions by the State.
India is a secular state, the idea of the secularism is one of the basic feature of the Indian constitution. The Supreme Court in St. Xavier’s College V. State of Gujarat22 observed, India is a secular state, secularism eliminates god from the matter of the state affairs, and ensure that none shall be discriminate against on the ground of religion.23
Religion Perfect Law: Myth or Reality
From the ancient time, Law and Religion have interacted, jointly operated and at times, mutually fought to overpower each other. In many vintage culture and bygone societies, the two have been a blended brew and, even to this day, many communities and countries, religion actively or passively affects law or is a component thereof; but while Law holds religion in leash, generally speaking, in no countries has Law succeeded in extinguishing religion.24 Law as we shall see, protects “religion” in various Contexts, but will not support the superstition.25
The relationship of Religion and Law has been changing with the changing times, like everywhere els, also in the Third World. Centuries have intervened between the old times when religion fully controlled the law and the present new age where the two social-control mechanisms have exchanged their position
Religion now as to operate everywhere in the world within the parameters set by the International Human-Rights Documents, National Constitutions and Other Domestic Laws, and Judicial Interpretation of all these in various parts of the world. It is indeed fascinating to examine the norms and modalities for the legal regulation of religion in the contemporary world.26
1.1.Religion Under The Indian Constitution;
The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit and kind of religion-based discrimination between them. Among these provisions are as follows;
1. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.27
2. The State shall not discriminate against any citizen on grounds only of religion, race, cast, sex, place of birth, or any of them, either in general or in the matter of access to or use of general and public place and conveniences.28
3. There shall be equality of opportunity for all the citizens in the matter of employment or appointments under the State and no citizens shall, on grounds only of religion be ineligible for, or discriminated against, in respect of any employment or office under the State.29
4. The traditional religious concept of ‘untouchability’ stands abolished and its practice in any form is strictly forbidden.30
5. If the State imposes compulsory service on citizens for public purposes no discrimination shall be made in this regard on the ground of religion only.31
To meet the demands of Article 17 noted above, soon after the commencement of the Constitution Parliament had enacted an Untouchability (Offences) Act, which was later amended and renamed as the Protection of Civil Right Act, 1955. The Act prescribes penalties for the practice of untouchability in various specified forms. A second law enacted in this respect is the Scheduled Cast and Scheduled Tribe (Prevention of Atrocities) Act, 1989.32
A. Freedom of Religion
a) Individual’s Right;
Religious freedom as an individual’s right is guaranteed by the Constitution to ‘all persons’ within the following parameters;
1. All persons are equally entitled to freedom of conscience and the right freely to profess, practice and propogatereligion.33
2. There shall be freedom as to payment of taxes for promoting of any particular religion by virtue of which 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 denomination.34
3. No religious instruction is to be provided in the schools wholly maintained by State funding; and those attending any State-recognized or state-aided school cannot be required to take part in any religious instruction or services without their (or if they are minor their guardian’s) consent.35
b) Group Rights
Freedom of religion is guaranteed by the Constitution of India as a group right in the following ways:
1. Every religious denomination or any section thereof has the right to manage its religious affairs; establish and maintain institutions for religious and charitable purposes; and own, acquire and administer properties of all kinds.36
2. Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same.37
3. Religious and linguistic minorities are free to establish and administer educational institutions of their choice, which shall not be discriminated against by the State in the matter of giving aid or compensation in the event of acquisition.38
B. Fundamental Duties
The Chapter on Fundamental Duties, inserted into the Constitution by the Constitution (Forty-Second Amendment) Act, 1976, includes the following among the basic national obligations of all the citizens:
1. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities.39
2. To value and preserve the rich heritage of our composite culture.40
C. Religious Matters under Distribution of Powers
Under Article 246 of the Constitution read with Schedule VIII various religious matters noted below fall in the jurisdiction of the State – and both Parliament and the State Legislatures, or either of them, can legislate on such matters:
i) Pilgrimage outside India – Union List, entry 20;
ii) Pilgrimage within India – State List, entry 7;
iii) Burials & Burial grounds, cremations & cremation grounds – State List, entry 10;
iv) Family relations, succession & all other personal-law matters – Concurrent List, entry 5;
v) Charities, charitable institutions & endowments – Concurrent List, entry 28;
vi) Religious endowments & religious institutions – Concurrent List, entry 28.
1.2.Judicial Interpretations & other Laws on Religion
The Constitution of India includes several provisions which directly relate the Hindu Religion, Hindu schools and religious practices, or Hindu religious places. these provisions have been briefly referred here, and are explained below in depth;41
a. Abolition of Untouchability
A provision in the Fundamental Rights Chapter of the Constitution declares that ‘untouchability’, which has been practiced in the community as part of religion and custom, stands ‘abolished’. It adds that the practice of the concept in any form is prohibited.42
To implement this provision of the Constitution Parliament has enacted two laws one after the other – the Protection of Civil Right Act, 1955 originally known as ‘Untouchability (Offences) Act, and the Scheduled Cast and schedule Tribe (Prevention of Atrocities) Act, 1989. Conviction under the provision of later Act for intimidating the Harijans (members of lower castes) was upheld in a case by the Supreme Court which ruled that mens rea was not necessary to prove commission of an offence under the law.43
It has been held in a case that these laws cover only caste-based untouchability and not the religious concept of boycott for objectionable conduct.44
In another case validity of building a separate colony by the government for the …‘untouchability’ was upheld.45
b. Temple Entry Restriction
The Hindu religious tradition restricts entry to temple on the basis of caste. Certain well known temples have been wholly out of bound for the Shudras. Article 25(2) of the Constitution empowered the State to abolish all cast-based restrictions on entering the worship in public Hindu temples. A number of local laws have since been enacted in pursuance of this provision – e.g., Bombay Hindu Place of Public Worship (Entry Authorization) Act, 1956. Laws enacted for the same purpose had been enacted in some states even before the commencement of the Constitution – e.g., Madras Temple Entry Authorization Act, 1947.46
The validity of some of these laws was challenged but upheld by the courts in various cases.47 It has been held that under these laws a non-Hindu cannot seek entry into a Hindu temple ‘for pleasure and social evaluation’48
c. Prohibition of Cow Slaughter
In an obvious recognition of the Hindu reverence for the holy cow, a Directive Principle of State Policy in Part IV of the Constitution requires the State to take steps for the prohibition of slaughter of cows and calves.49 Laws have been enacted in various States to implement this Directive Principles, while some similar laws were already in force before 1950. Among these are the Bombay Animal Prevention Act, 1948, West Bengal Animal Slaughter Control Act, 1950, Bombay Animal Preservation (Gujarat Extension and Amendment) Act, 1961 and Bombay Animal Preservation (Gujarat Amendment) Act, 1994.
Some of these laws, or their particular provisions, were challenged for their validity but in most cases were upheld by the Courts.50
In the Muslim-dominated State of Jammu and Kashmir cow slaughter is an offence under the local “Ranbir Penal Code.”
d. Devadasi System
Under the devadasi system that has prevailed in certain parts of India young girls are dedicated to deities and spend their whole life in the service of the temples. A virtuous religious practice in its origin, it gradually became a social evil and then reformers in the country made endeavours for its abolition. The early laws enacted for this purpose were the Bombay Devadasi Protection Act, 1934 and the Madras Devadasi (Prevention of Dedication) Act, 1947.
In 1982 the Karnataka legislation repealed these laws in their application to the former Bombay and Madras regions now filling in Karnataka and replaced them with a new law called Karnataka Devadasi ( Prohibition of Dedication) Act, 1982 passed, as mentioned in its Statement of Objects and Reasons ‘to minimize this social evil and to rehabilitate the victims’. Dedication of girls as devadasi is a punishable offence under this Act and higher punishment is provided for a person abetting the offence if he happens to be the parent, guardian or relative of girl so dedicated.
Andhra Pradesh State Legislature enacted a similar law in 1988. In Maharashtra the new Devadasi System (Abolition) Bill, 2005 is awaiting Enactment.
1.3.International Law and Religion
International law, in fact, does not define religion. It simply uses the word to refer to what countries mean by religion.
The Universal Declaration of Human Rights, which was adopted without dissenting vote by the General Assembly of the United Nations in 1948, states; "Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone on in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance."51 This fundamental human right has been incorporated in the International Covenant on Civil and Political Rights and has been reaffirmed by the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief that was approved by the General Assembly of the United Nations in 1981.52
The phrase "religion or belief" is particularly important for our reflections, as it contains two of the words we are examining. Both words are related to the notion of freedom of thought and freedom of conscience. Belief is an alternative to religion that is to receive the same legal protection. Presumably belief in this context does not mean religious beliefs, because this would be religion. Thus, "belief" in the phrase "religion or belief" is a positive way of designating beliefs that are not religious. Belief in this context refers to convictions that a person might choose to manifest in teaching and practice, either in public or private.
Therefore, although international law does not define religion, it does identify religion with conscience, and it enumerates a number of manifestations of religion that are to be protected. International law accepts that religion may (and in most instances surely will) involve teaching, practice, worship and observance. It also clearly states that the right to freedom of religion or belief is an individual right that may be exercised alone as well as in community with others. Under international law religion and belief are individual and corporate matters deserving protection.
Religion is also mentioned in the Universal Declaration of Human Rights, which asserts that "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."53 This not only tells us that nations are held to a standard of non-discrimination with respect to religion, but that under international law religion is distinguished from race and national or social origin.
It should also be noted that freedom of religion or belief includes the right to change one’s religion or belief. This means that under international law religion is something one can change. Unlike race, color, national or social origin an individual has the right to give up her religion for a belief, or to change to a different religion. This has been strongly contested by some Muslim countries in the United Nations, who assert that no Muslim has the right to abandon Islam. Their position might be understood as opposition to freedom of religion, and it certainly is opposition to the standards of international law concerning freedom of religion or belief—at least on this particular point. It might be more accurate, however, to say that those who voice this objection simply do not accept the understanding of religion that is reflected in the Universal Declaration of Human Rights. Muslims tend to use the word "religion" to mean "true devotion to God." Religious freedom, therefore, means for many Muslims the freedom to embrace what is true. It does not mean the freedom to turn away from the truth.54
Finally, the Universal Declaration mentions that education under law "shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace."55 It is interesting that the word "religions" is not used here. International law seems to recognize that some religious groups should not be called "religions." The goal of the Universal Declaration is tolerance among all religious groups, whether within a religion or between religions.
I have focused on the Universal Declaration of Human Rights, because it is the foundation of international human rights law. Moreover, its provisions have been incorporated into many national constitutions. Thus, what the Universal Declaration says about religion has had a major impact on the law about religion in many countries. The concept of "freedom of religion or belief" has entered the legal systems (and thus the legal vocabularies) of almost all of the nations of the world. What international law says about religion and also about belief will continue to shape the understanding of religious life for generations to come.
1.4.The Supreme Court and Religion
it is important to examine first how the courts have attempted to define religion with respect to the Constitution; and second how the Supreme Court, in adjudicating cases pertaining to Hinduism, has drawn a distinction between the sacred and the secular. The courts has frequently asked to decide what constitutes an “essential part of religion,” and therefore off-limits for state intervention, and what is “extraneous or unessential,” and therefore an areas in which it is permissible for the state to interfere. Some legal scholars have labeled the Court’s attempts to define what is fundamental to any religion as the “essential practices” doctrine (Dhavan and Nariman 2000)56
Courts in other secular politics are confronted by similar questions. For instance, the American courts have had occasion to decide on religious practices that run contrary to general laws. However, except in rare cases, such as Wisconsin v. Yoder (406 US 205 ), the U.S. Supreme Court has not sat in judgment on the authenticity of religious beliefs and practices.57 The usual stance of the U.S. Supreme Court has been to reject pleas for making exceptions to religious practices that run counter to secular state legislation. The most famous example in recent times is Employment division v. Smith (494 US 872 ). Thus, Jacobsohn labels the American model of secularism as an assimilative one, where “political principles in the development of the American nation”58 are of ultimate importance, in contrast to the Indian model, which is ameliorative.
The essential practices doctrine in India can plausibly be traced to the so-called Father of the Indian Constitution, B.R. Ambedkar, and to his famous statement in the Constitution Assembly during debates on the proposed codification of Hindu Law: “The religious conceptions in this country are so vast that they cover every aspect of life from birth to death….. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend it beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.”59 The most striking aspect of the essential practices doctrine is the constant attempt by the Court to fashion religion in the way a modernist state would like to be rather than to accept religion as represented by its practitioners.
The essential practices test has been used by the Court to decide a variety of cases. These can be classified under a few headings. First, the Court has made recourse to this test to decide which religious practices are eligible for constitutional protection. Second, the Court has used the test to adjudicate the legitimacy of legislation for managing religious institutions. Finally, the Court has employed this doctrine to judge the extent of independence that can be enjoyed by religious denominations.60
Several studies have noted the unusual role of the Indian Courts in interpreting religious doctrine and acting as the vanguard of religious reform. J.D.M. Derrett has written about the paradox of the Court playing the role of religious interpreter;
“Therefore the courts can discard as non-essentials anything which is not proved to their satisfaction – and they are not religious leaders or in any relevant fashion qualified in such matters – to be essential, with the result that it would have no constitutional protection.”61
Rajeev Dhavan and Fail Nariman have offered a more scathing assessment.
With a power greater than that of a high priest, maulvi or dharmashastri, judges have virtually assumed the theological authority to determine which tenets of a faith are “essential” to any faith and emphatically underscored their constitutional power to strike down those essential tenets of a faith that conflict with the dispensation of the Constitution. Few religious pontiffs possess this kind of power and authority.62
At the end it can be concluded that, Law and Religion is the interdisciplinary study of relationships between Law, especially Public Law, and Religion. Vogel reports that in the 1980s a new Law and Religion approach emerged that progressively built its own contribution to religious studies. Over a dozen scholarly organizations and committees were formed by 1983, and a scholarly quarterly, the Journal of Law and Religion first published that year and the Ecclesiastical Law Journal opened in 1999. The Rutgers Journal of Law and Religion was founded in 1999. The Oxford Journal of Law and Religion was founded in England in 2012.
Many departments and centers have been created around the world during the last decades. For example, the Brigham Young University law school in 2000 created "The International Center for Law and Religion Studies." It has an international mission and its annual symposium (which began in 1993) has brought to campus over 1000 scholars, human rights activists, judges from supreme courts, and government ministers dealing with religious affairs from more than 120 countries.
As of 2012, major Law and Religion organizations in the U.S. included 500 law professors, 450 political scientists, and specialists in numerous other fields such as history and religious studies. Between 1985 and 2010, the field saw the publication of some 750 books and 5000 scholarly articles, according to Emory Law Professor John Witte, Jr...
Law and Religion, which is a fast-growing disciple in the contemporary world. From ancient times, Law and Religion have interacted, jointly operated and, at times, mutually fought to overpower each other. In many vintage culture and bygone societies, the two have been a blended brew and even to this day, in many communities and countries, religion actively or passively affect law or is a component thereof; but while law holds religion in leash, generally speaking, in no country has law succeeded in extinguishing religion
1 Justice V.R. Krishna Iyer, Law and Religion, Deep & Deep Publications, New Delhi, p. 9-10.
2 Prof. Tahir Mahmood(Member, Law Commission of India), Laws of India on Religion and Religious Affairs, Universal Law Publishing Co., ed. 2007, p. 8
3 Ibid, p. 8-9
4 L. Pannam, ‘Travelling Section 116 with a U.S. Road Map’ (1963) M.U.L.R. 56-57. (This work is hereafter cited as Pannam).
5 Davis v. Beson (1889) 133 U.S. 333, 342. See also The Oxford English Dictionary (Oxford U.P.: London, 1961) vol. 8, p. 410, wherein the word religion has been defined in similar terms.
6 U.S v.D.C. Macintosh (1931) 283 U.S. 605.
7 “The Contribution to the Critique of Hegel’s Philosophy of Right” in Karl Marx and Friedrich Engel ‘On Religion’, Foreign Languages Publishing House, Moscow, pages 41-42.
8 S.P. Mittal V. Union of India, AIR 1983 SC 1 & Supranote 3 at 28
9 The Devils Dictionary.
10 Sigmund freud, New introductory Lecture on Psychoanalysis.
11 Penguin Dictionary of Religions (1997).
12 Ioan Ceterchi, Introducere in Teoria generala a Dreptului, All Publishing House, Bucharest, 1993, p. 28.
13 Prof. Dr. Constantin Rus, Drpt bisericesc, Anul III, Pr – Sem I II, p. 4,http;//www.teologiearad.ro/?p=594.
14 Cutuma ca izvor de drept. Scurt isoric,
16 Bryan Gates(Attorney at Law), North Carolina Institute of Government, Introduction to Law for North Carolinians, p. 1.
17 John Austin(English Jurist Born 1790), Province of Jurisprudence Determined.
18 Professor Hart(Born 1709), Oxford Professor of jurisprudence, The Concept of Law, 1961.
19 St Thomas Aquinas[(born 1224)(Italian Philosopher)], “Summa Theologiae (Summary of Theology)”, Question 90, Art 4.
20 Thomas Hobbes (english Philosopher, Born 1588), The role and Function of Law, Leviathan (1651).
21 Oliver Wendell Holmes(American Judge and jurist, Born 1841), “The Path of the Law” in Collected Papers, 1920.
22 St. Xavier’s College V. State of Gujarat A.I.R 1974 SC 1389, 1975 SCR (1) 173
23 Supranote 3
24 Supranote 1 at p. 9.
25 Derett, J.D.M, Religion Law and the State in India, Faber & Faber, 24 Russell Square London, 1968.
26 Supranote 23 at p. 1 & 2.
27 Article 14 of the Constitution of India, 1950
28 Article 15 of the Constitution of India, 1950
29 Article 16 of the Constitution of India, 1950.
30 Article 17 of the Constitution of India, 1950.
31 Article 23(2) of the Constitution of India, 1950.
32 Supranote 26 at p. 24 & 25.
33 Article 25(1) of the Constitution of India, 1950
34 Article 27 of the Constitution of India, 1950.
35 Article 28 of the Constitution of India, 1950.
36 Article 26 of the Constitution of India, 1950.
37 Article 29 of the Constitution of India, 1950.
38 Article 30 of the Constitution of India, 1950.
39 Article 51A (e) of the Constitution of India, 1950.
40 Article 51A (f) of the Constitution of India, 1950.
41 Supranote 26 at p. 79
42 Supranote 30
43 State of Karnataka v. Appa Balu Ingale, A.I.R. 1993 SC 1136.
44 Devarajiah v. Padmanna, A.I.R. 1961 Mad. 35
45 Pavadai v. State of Madras, A.I.R. 1973 Mad. 458.
46 Supranote 41 at p. 79 & 80.
47 Devaru v. State of Mysore, A.I.R. 1955 SC 245, VSR Liyar v. Narayana Pillai, A.I.R. 1956 Mad 528
48 Kalyandas v. State, A.I.R. 1973 Mad. 264.
49 Article 48 of the Constitution of India, 1950.
50 Mohd. Haneef Qureshi v. State of Bihar AIR 1958 SC 731; Abdul Hakeem Qureshi v. State of Bihar AIR 1961 SC 448; Haji Usman Bhai v. State of Gujarat AIR 1986 SC 121; State of West Bengal v. Ashutosh Lahiri AIR 1995 SC 464; State of Gujarat v. Mirzapur Moti Kureshi Kassab Jammat (2005) 8 SCC 534.
51 Article 18, Universal Declaration of Human Rights, 1948.
52 Robert Tracer, “Religion” in International Law,
See also; http//;religionhumanrights.com/Research/religion.intlaw.htm
53 Article 2, Universal Declaration of Human Rights, 1948.
54 Supranote 52
55 Article 26, Universal Declaration of Human Right, 1948
54 Supranote 52
55 Article 26, Universal Declaration of Human Right, 1948
56 Since the essential practices test has been used, with a few exceptions, to judge the constitutionally of Hindu practices, this section primarily looks at the judicial discourse on Hinduism and Hindu practices.
57 There the Court concluded that the “traditional way of life of the Amish is not merely a matter of personal preference but one of deep religious conviction.”
58 Jacobsohn, Gary Jeffrey. 2003, The wheel of Law: India’s secularism in Comparitive Constitutional Context, New Delhi: Oxford University Press, p. 49.
59 Constituent Assembly Debates VII: 781
60 Sen Ronojoy (with commentary by Upendra Baxi), Legalizing Religion: The Indian Supreme Court and Secularism, East-West center Washington, p. 10
61 See Supranote 25 at p. 447
62 Dhavan, Rajeev, and Fali Nariman, 2000, “The Supreme Court and Group Life: Religious Freedom, Minority Groups, and Disadvantaged Communities.” In Supreme but not Infallible:Essay in honour of the Supreme Court of India, ed. B.N. Kirpal, New Delhi: Oxford University Press.