s

Religious law and its impact in India

LAW 669 (Comparative Public Law)

Assignment submitted to Dr. Sachin Rastogi

Amity Institute of Advanced Legal Studies

Amity University Uttar Pradesh

In Part Fulfilment of Requirements for the Degree of

Master of Laws (LLM)

Submitted by:
Aishwarya Sudhir
A03104520039
LLM (Crim.L (2020-2021)

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Introduction

Religion is one of the fundamental organizations of any general public. It is an all-inclusive

framework. Religion can be characterized as, “a social framework in which there is regular
confidence, revere, ceremonies, traditions and customs.” The meaning of Religion given by
Durkheim is an all-around acknowledged definition and he says, “Religion is a brought
together arrangement of convictions and practices with respect to holy thing which join into
one single good group”.1 There are different religions on the planet and the significant ones are
Hinduism, Buddhism, Sikhism, Jainism, Christianity, Islam and Farsi. The thoughts and
confidence of every single religion contrasts somehow or the other. Religious law refers to
ethical and moral codes taught by religious traditions.2 Examples include Christian canon law,
Islamic sharia, Jewish halakha and Hindu law. The two most prominent systems, canon law
and sharia, differ from other religious laws in that canon law is the codification of Catholic,
Anglican and Orthodox law as in civil law, while sharia derives many of its laws from juristic
precedent and reasoning by analogy. Since the very childhood we all heard that India is a land
of diversity, its diversity make it more beautiful and unique, in India there are number of
different religious people, in another word we can also say that India is the birthplace of four
major world religions: Hinduism, Sikhism, Buddhism and Jainism. There are also significant
numbers of Muslims and Christians living in the country. Constitution makers understood that
beauty of our country lies in its diversity, so they came up with provisions while framing the
constitution to protect and safeguard the believe of religion and religions as well. Some aspects
of religious law are included in the Indian Constitution in the administration of Hindu or
Muslim 'personal law', which can be applied in certain contexts such as marriage, divorce or
personal property disputes. It is quite a controversial aspect of Indian law as it is not always
clear how and when it should be applied. To further complicate matters, Jains, Sikhs and
Buddhists currently come under the umbrella of Hindu personal law, but many people are not
happy with this situation and there have been campaigns to have these religions administered
separately. The preamble to the Constitution of India proclaimed India a "sovereign socialist
secular democratic republic". The word secular was inserted into the Preamble by the Forty-
second Amendment Act of 1976. It mandates equal treatment and tolerance of all religions.
India does not have an official state religion; it enshrines the right to practice, preach, and

1
https://www.yourarticlelibrary.com/religion/essay-on-religion-its-kinds-and-impact-on-indian-society-
religion/4635 (Nov.26,2020, 11:00 P.M)
2
https://www.nyulawglobal.org/globalex/Religious_Legal_Systems.html (Nov.26,2020, 11:15 P.M.)

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propagate any religion. No religious instruction is imparted in government-supported schools.
The Supreme Court of India held that secularism was an integral tenet of the Constitution3. The
right to freedom of religion is a fundamental right according to the Indian Constitution. The
Constitution also suggests a uniform civil code for its citizens as a Directive Principle.
However, this has not been implemented until now as Directive Principles are Constitutionally
unenforceable. In 1996 Supreme Court has further held that the enactment of a uniform civil
code all at once may be counterproductive to the unity of the nation, and only a gradual
progressive change should be brought.4 In Maharishi Avadesh v Union of India5 (1994) the
Supreme Court dismissed a petition seeking a writ of mandamus against the government to
introduce a common civil code, and thus laid the responsibility of its introduction on the
legislature. Major religious communities continue to be governed by their own personal laws.
Personal laws exist for Hindus, Muslims, Christians, Zoroastrians, and Jews. The only Indian
religion exclusively covered under the secular ("civil") law of India is Brahmoism starting from
Act III of 1872. For legal purposes, Buddhists, Jains and Sikhs are classified as Hindus and are
subject to Hindu personal law.

Aspect of religion

Religion plays a major role in the Indian way of life. Rituals, worship, and other religious
activities are very prominent in an individual's daily life; it is also a principal organiser of
social life. The degree of religiosity varies among individuals; in recent decades, religious
orthodoxy and observances have become less common in Indian society, particularly among
young urban-dwellers.
Rituals
The vast majority of Indians engage in religious rituals on a daily basis. Most Hindus observe
religious rituals at home. However, observation of rituals greatly varies among regions,
villages, and individuals. Devout Hindus perform daily chores such as worshiping at the
dawn after bathing (usually at a family shrine, and typically includes lighting a lamp and
offering foodstuffs before the images of deities), recitation from religious scripts, singing
hymns in praise of gods etc.6A notable feature in religious ritual is the division between
purity and pollution. Religious acts presuppose some degree of impurity or defilement for the

3
S. R. Bommai vs. Union of India ,1994 AIR 1918, 1994 SCC (3) 1
4
Pannalal Bansilal v State of Andhra Pradesh,1996 AIR 1023, 1996 SCC (2) 498
5
1994 SCC, Supl. (1) 713
6
http://www.legalservicesindia.com/article/1852/Law-and Religion. (Nov.26,2020; 2:30 p.m.)

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practitioner, which must be overcome or neutralised before or during ritual procedures.
Purification, usually with water, is thus a typical feature of most religious action. Other
characteristics include a belief in the efficacy of sacrifice and concept of merit, gained
through the performance of charity or good works, that will accumulate over time and reduce
sufferings in the next world. Devout Muslims offer five daily prayers at specific times of the
day, indicated by adhan (call to prayer) from the local mosques. Before offering prayers, they
must ritually clean themselves by performing wudu, which involves washing parts of the
body that are generally exposed to dirt or dust. A recent study by the Sachar Committee
found that 3-4% of Muslim children study in madrasas (Islamic schools). Dietary habits are
significantly influenced by religion. Almost one-third of Indians practise vegetarianism; it
came to prominence during the rule of Ashoka, a promoter of Buddhism. Vegetarianism is
much less common among Muslim and Christians. Jainism requires monks and laity, from all
its sects and traditions, to be vegetarian. Hinduism bars beef consumption, while Islam bars
pork.

Ceremonies
Occasions like birth, marriage, and death involve what are often elaborate sets of religious
customs. In Hinduism, major life-cycle rituals include annaprashan (a baby's first intake of
solid food), upanayanam ("sacred thread ceremony" undergone by upper-caste youths), and
shraadh (paying homage to a deceased individual). For most people in India, the betrothal of
the young couple and the exact date and time of the wedding are matters decided by the
parents in consultation with astrologers. Muslims practice a series of life-cycle rituals that
differ from those of Hindus, Jains, and Buddhists. Several rituals mark the first days of life—
including whispering call to prayer, first bath, and shaving of the head. Religious instruction
begins early. Male circumcision usually takes place after birth; in some families, it may be
delayed until after the onset of puberty. Marriage requires a payment by the husband to the
wife and the solemnisation of a marital contract in a social gathering. On the third day after
burial of the dead, friends and relatives gather to console the bereaved, read and recite the
Quran, and pray for the soul of the deceased. Indian Islam is distinguished by the emphasis it
places on shrines commemorating great Sufi saints.

Pros of religious law in India

Diversity of India is very rich than that of other country. Religion has historically influenced
Indian society on a political, cultural and economic level. There is a sense of pride associated

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with the country’s rich religious history as the traditions of Hinduism, Buddhism, Sikhism and
Jainism all emerged out of India. Every citizen got freedom to follow their own religion and
religious believe. Beauty is that our constitution protects the religious interest and give us
freedom to exercise different religions. Every citizen has got right to freedom of religion as
their fundamental rights granted by the mother of every law i.e. Constitution of India. The
government has also recognised the vast piety that is deeply embedded in India’s society. To
honour this spectrum of faiths, the establishment of religion has its own effect on Indian culture
which can be outlined as under7

Solidarity: Individuals having a place with a specific religion nearly distinguish themselves
with the religious gathering.

Moral qualities: Religion helps in the advancement of moral qualities, e.g.: Care for the
guardians, security of kids, helping poor people and debilitated, genuineness are sure values,
lectured by religion.

Social control: Religion goes about as a powerful instrument of social control. By guzzling
certain moral qualities, religion empowers to direct the behavior of people.

Premise of law: Over a timeframe, religious traditions and conventions pick up the power of
law. For example, according to profound quality, support of spouse and kids is the bounden
obligation of the husband. Keeping in mind the end goal to maintain this standard,
arrangements for granting upkeep is made when in doubt in Hindu Marriage Act and Sec 125
CRPC. Indian Government provides benefits to religious organisations, specifically exempting
them from certain taxes. Tax exemption In 1961, the Indian Government passed the Income-
tax Act which exempts charitable and religious trusts from paying taxes. The trust must put
forth 85% of income derived from their religious activities (including the trust’s objective),
and the remaining balance can then be used in the following year. Donations made are also
exempted from taxes under section 80G of the Income Tax Act. However, some religious
organisations, such as the Tirumala Tirupati Devasthanams (TTD) Temple, have felt mixed
emotions regarding the enforcement of this act. Reports have noted that this not only led to
chaotic relations but has also impacted the developmental activities in Tirupati as its economy
relies on the temple’s presence. However, because the Temple is a renowned religious

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religion/4635

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institution, under the Income-tax Act of 1961 the board argued that their exemption from
paying taxes was justified.8 According to officials from the TTD properties wing, “The TTD
has been earning income only through the offerings made by millions of devotees across the
world. The construction of guest houses and mutts in Tirumala was possible only because of
donations. In fact, none of the government bodies has taken up development activities in the
past two decades in Tirupati.”

The Haj subsidy Aside from domestic exemption, the Indian Government has been subsidising
the travel expenses of Indian Haj Pilgrims; this is enforced through the Haj Committee Act of
1959. These contributions date back to the era of the British Raj. Through the form of
discounted airfares on Air India flights, the Government takes care of all transportation costs
from Mumbai to Jeddah. Throughout the last century, the Government has subsided more travel
locations to destinations including Iraq, Saudi Arabia, Syria, Iran, and Jordan. Besides the Haj
subsidy, the Indian Government also subsidises several Hindu pilgrimages. The most
prominent examples of this are the four Kumbh Melas. The Central and State Governments
spend over a thousand crores annually on the Melas. Other pilgrimages attracting Central and
State funds include the Kailash Manasarovar Yatra, the Amarnath yatra, the Mukhyamantri
Tirtha Darshan Yojana, etc. Legal aspects Article 27 of the Indian Constitution states that “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.

Cons of religious law

Three ethnic or religious conflicts have stood out of late: two occurred in the states of "Assam
and Punjab; another, the more widely known Hindu-Muslim conflict, continues to persist. The
Assam problem is primarily ethnic, the Punjab problem is based on both religious and regional
conflicts, while the Hindu-Muslim problem is predominantly religious. The institution of
religion has caused many problems in the Indian society9.

8
https://thelogicalindian.com/story-feed/awareness/subsidy-to-religious-organisation/ (Nov.26,2020,11:30P.M.)
9
https://www.yourarticlelibrary.com/religion/essay-on-religion-its-kinds-and-impact-on-indian-society-
religion/4635(Nov. 26,2020,11:40 P.M.)

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Groupism: Religion divides people. Such divisions may come in the way of development of
the country.

Frequent conflicts: People belonging to different religions feel that their religion is superior.
They even try to impose their religious practices on others which would lead to conflict
situations. In India, communal conflict has become a common feature.

Dogmatism: Every religion has a set of beliefs which may be superstitious quite often. Such
ideas block the development of society and the progress of individuals. E.g.: —In some
communities there is no improvement the status of women on account of religious attitudes.

Blocks social change: Religion acts as a hindrance for social change. It is highly challenging
to transform the attitude of conservative people, e.g.: Restrictions on marriage expenses.

ETHNIC CONFLICT IN ASSAM

Of the three conflicts mentioned, Assam has attracted the largest attention of late. Not since
the 1947 partition of India have so many people been killed and uprooted as a result of ethnic
or communal violence.10 By most available reports now, mob violence has claimed four
thousand lives, rendered about 200,000 homeless, and forced a large number to leave the state
for protection elsewhere. The immediate occasion of this bloodshed was the election held in
February, though conflict and tension have been present for the last three years. In Assam, three
culturally disparate groups have been in collision: the Assamese, the Bengalis (both of which
have segments of Hindus and Muslims) and the tribal, which are localized communities.

SIKH-HINDU CONFLICT IN PUNJAB

Starting in August 1980, mounting communal tension between Hindus and Sikhs in the state
of Punjab led to violent clashes, in the last year. Unlike Assam, Punjab is a state with the highest
per capita income. It is the seat of the Green Revolution in India, whose biggest beneficiaries
have been the rich Sikh peasants. In Punjab, Sikhs are a majority, Hindus, a minority. Although
religious symbols have been used for the mobilization of Sikhs and the secessionist slogan of
Khalistan (a sovereign state of Sikhs) has been raised, the Sikh's charter of demands, drawn
from the Anandpur Sahib Resolution, has strong economic and political components, unlike in

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https://www.culturalsurvival.org/publications/cultural-survival-quarterly/ethnic-and-religious-conflicts-india
(Nov.27,2020, 11:30P.M.)

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Assam where the issue of aliens has side lined economic demands. The "major" religious
demands by the Sikhs, including greater radio time for religious broadcasts over federally
controlled radio, and a separate legislative act for Sikh religious shrines, were granted by New
Delhi this past February. 11Amid these mounting uncertainties, religion both divides and unites.
For the rich Sikh peasantry, faced with Hindu traders on the one hand and politicized labor on
the other, religion performs a useful role. It unites the Sikh trader, who is also opposed to the
Hindu trader, and the low caste Sikh laborer by dividing the agricultural labor into low caste
Sikhs and low caste Hindus or Untouchables. Religious slogans appeal to the religiosity of the
insecure small Sikh peasant and the unpoliticized Sikh laborer. Power, Electoral Politics and
Religion It is unlikely that these links would have automatically led to political action without
the mediation of political parties.

THE HINDU-MUSLIM PROBLEM

Of all the religious and ethnic issues in contemporary India, history has cast its deepest shadow
on Hindu-Muslim relations. The most critical contemporary phase of this history was the
partition of 1947. A Muslim sovereign state of Pakistan was born amidst ghastly communal
violence but almost as many Muslims as there were in the new constituted Pakistan, for various
reasons, stayed in India. The partition did not solve the Hindu-Muslim problems; it caused the
situation of the Muslims in India to deteriorate. They were blamed for the division of the
country; their leadership had left and their power was further weakened by the removal of all
Muslim-majority areas except Kashmir.12 Most of all, the conflict between India and Pakistan
kept the roots of the communal tension perpetually alive and pushed Muslims into the
unfortunate situation of defending their loyalty to India. Even 36 years after independence, the
problem has not been overcome; Hindi-Muslim riots have in fact increased in the last few years.
It would be wrong, however, to conclude that the entire Muslim community in India has been
under pressure. First, even though a minority (according to the 1971 census, 11.2 percent of
the Indian population was Muslim as opposed to 61.2 percent caste Hindus), Muslims are in a
majority in one state and constitute 13.5 to 24 percent population in five states. There are 39
districts in India in which they comprise from between 20 percent to 94 percent of the

11
https://www.culturalsurvival.org/publications/cultural-survival-quarterly/ethnic-and-religious-conflicts-
india(Nov.,28,2020, 12:00 A.M.)
12
https://www.culturalsurvival.org/publications/cultural-survival-quarterly/ethnic-and-religious-conflicts-india
(Nov.,28,2020,12:15A.M)

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population. Many cultural differences exist among them. Only 45 percent speak Urdu and there
are caste and sect divisions. As many as 73 percent live in villages; only 27 percent are urban.
This is particularly important, after 1947 the Hindu-Muslim riots occurred for the most part, in
urban centres. Most of these towns are modernizing, middle-size towns such as Aligarh,
Moradabad, Meerut, Ranchi, Baroda, Hyderabad, Trivandrum. In the big and/or industrialized
cities such as Bombay, Delhi, Ahmedabad, the communal fury, whenever it has erupted, has
remained confined to the older parts of the city.13 Villages have remained largely undisturbed.
Acute communal consciousness occurs largely in the middle class; its most fertile bases lie in
the lower middle classes of growing middle size towns of sizeable Muslim populations.
Discrimination exists at other levels in other parts of the country. Decline in the status of Urdu
in north India, widespread use of Hindu mythologies and symbols in school textbooks and
continuing controversy over the foremost educational institution of Muslims, the Aligarh
University, have indeed done much to provoke Muslim fears. Evidence that the police and
administrative machinery in recent riots have sided with violent Hindus has further deepened
widespread feelings of discrimination. The emerging character of electoral politics have made
matters worse. Communal Hindu parties apart, even the ruling Congress Party, professedly
secular, has, since independence, had a dualistic character. The secular strain in the Congress
was represented by Nehru but the communal strain was also present in the form of Patel, India's
first Deputy Prime Minister, and was more pronounced at the provincial level. Nehru's stature
kept the communal strain in check, but in the seventies, the party machinery has been taken
over by the new generation of leaders, whose power and mobilization is based less on
secularism or socio-economic programs and more on exploiting caste and religious divisions
at the local levels. If Nehru showed the integrative potential of democratic politics, the new
leaders have shown its divisive potential. Muslims are the largest minority. Their votes can
swing political fortunes. Parties have not hesitated to fan communal flames for electoral gains.
The most recent example of this was the openly communal campaigning by the Congress in
the violence-torn Assam elections. This new mode of realpolitik has been adopted by the new
provincial and local leaders of most parties. The higher recent incidence of Hindu-Muslim riots
has a good deal to do with this new phenomenon.

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(Nov. 28,2020, 12:30,P.M.)

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CONCLUSION

As there are lots of benefits of India being a religious country then there are lots of bad impact
of this as well. One hand it gives the message of brotherhood and make country more beautiful
on other hand its also reason of groupism which some how stagnant the growth of country and
spread hatred. We many a times evident lots of riots fights on religious grounds in different
place of country. In 2011 the Supreme Court tackled the question of whether a Government
grant funded by taxpayer money violates Article 2714. The SC bench proclaimed that it would
only amount to such a violation if a “substantial part of taxpayer money” is used to promote
religious activity. It said: “In our opinion Article 27 would be violated if a substantial part of
the entire income tax collected in India, or a substantial part of the entire central excise or the
customs duties or sales tax, or a substantial part of any other tax collected in India, were to be
utilized for promotion or maintenance of any particular religion or religious denomination. It
has become a part and parcel of an individual’s life. In my opinion there should be freedom of
religion and protection of religions but there should be uniformity in terms of law there must

14
Prafull Goradia v. The Union of India

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be same way of treatment to every religion not more or less. Though Religion has negative
impacts it is not possible to have a society without a system of religion.

BIBLIOGRAPHY

➢ Websites

1. https://www.yourarticlelibrary.com/religion/essay-on-religion-its-kinds-and-
impact-on-indian-society-religion/4635 (Nov.26,2020, 11:00 P.M)

2. https://www.nyulawglobal.org/globalex/Religious_Legal_Systems.html
(Nov.26,2020,11:15 P.M)
3. http://www.legalservicesindia.com/article/1852/Law-and Religion. (Nov.26,2020;
2:30 p.m.)

4. https://www.yourarticlelibrary.com/religion/essay-on-religion-its-kinds-and-
impact-on-indian-society-religion/4635(Nov.,26,2020,11:00P.M.)

5. https://thelogicalindian.com/story-feed/awareness/subsidy-to-religious-
organisation/(Nov.26,2020,11:30P.M.)

6. https://www.culturalsurvival.org/publications/cultural-survival-quarterly/ethnic-
and-religious-conflicts-india(Nov.,28,2020, 12:00 A.M.)

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