CHAPTER-I

INTRODUCTION

No religion has mandated killing others as a requirement for its sustenance or

promotion.

Dr. A. P. J. Abdul Kalam

It is difficult to determine whether the constitution of the government and the

provisions of law, or Religion, have, among the communities, the greatest influence
upon the lives of individuals, and the operations of society. Beside the causes which
usually give superstition a powerful sway in ignorant and credulous ages, the order of
priests obtained a greater authority in India than in any other region of the globe; and
this again they employed with astonishing success in multiplying and corroborating
the ideas on which their power and consequence depended. Everything in Hindustan
was transacted by the Deity. The laws were promulgated, the people were classified,
and the government was established, by the Divine Being. The astonishing exploits of
the Divinity were endless in that sacred land. For every stage of life from the cradle to
the grave; for every hour of the day; for every function of nature; for every social
transaction, God prescribed a number of religious observances. And meditation upon
his incomprehensible attributes, as it was by far the most difficult of all human
operations, so was it that glorious occupation which alone prepared the intense votary
for the participation of the Divine nature. Natural religious law, namely - a law driven
from a faith in God or in divine forces, has used religion to construct given, sanctified,
unchangeable, and universal legal categorizations as normative guidelines of a just
behavior. Such a natural religious law is the absolute criterion for obedience and
disobedience to human law, according to the principle of lex iniusta non est lex („an
unjust law is not law‟).1

India is a multi - religious and multi - cultural country. All the three great
religions of our country – Hinduism, Islam and Christianity – recognize the existence
of God. To Christian their religion is a system of faith and worship, to Muslim, Islam

1
B. Bix, “Natural Law Theory” in D. Patterson D. (ed.), A Companion to Philosophy of Law and
Legal Theory 223-240 (Blackwall Publishers, Cambridge, 1996).

1
is a way of life encompassing all aspects of life. Hinduism defies comparison with
other religions. It is sui generic. Unlike other religions, the Hindu religion does not
claim any one prophet; it does not worship any one God; it does not subscribe any one
dogma; it does not believe in any one philosophic concept; it does not appear to
satisfy the narrow traditional features of any religion or creed. It may broadly be
described as a way of life and nothing more. To the Mohammedan the Koran provides
both a body of beliefs and rituals and comprehensive code of behavior. It provides
both religious and legal observances. The Koran is the primary expression of Islamic
law, though not a code of law, as well as the basic formulation of religious ethics. We
may examine, with scholarly objectivity, Indian Hinduism, Buddhism, Jainism,
Sikhism, Islam, Christianity, Zoroastrianism and other spiritually charged paths and
pursuits as well as the family laws of various communities and the finding will
confirm the Indianness of law and religion, regardless of denominations and majority
– minority status.2

Hinduism, in, its large connotation, takes in Buddhism and Jainism but it may
also be contended that Buddhism have historical origin of their own and personal law
of deviant from the Hindu law. Besides these, Sikhism, a product of Indian multi-
religious synthesis, it is considered comparatively young religion as Guru Nanak, its
founder was born in 1469 succeed by nine more Gurus. The Holy Granth containing
the civil and religious institutes of Sikhism is the only object which is admitted into
their place of worship. The tenets of Nanak forbid the worship of images.3

In the Constitutions of major democracies in the world which accord an equal

position to all religions, the neutrality the State may be the subject of express
constitutional provision to that effect or the constitutional provision may be silent on
this matter. The Indian Constitution follows latter course except for some provisions
in some areas. There are specific provisions relating to particular aspects of State
neutrality but there is an absence of any general clause asserting this principle.
Constitutional provisions on State neutrality in America, Australia, Eire and France
call for special mention in view of the discussion in India of some of the conceptual
issues raised in those countries. The „wall of separation‟ principle formulated in

2
V.R. Krishna Iyer, Law and Religion 7-8 (The Deep & Deep Publications, New Delhi 1984)
3
For more detail see Daljeet Singh, Sikhism – A Comparative Study of its Theology and Mysticism
(Sterling Publishers Pvt. Ltd., New Delhi, 1979).

2
America and followed in Australia and perhaps in Eire assumed particular importance
in these discussions.4

The debates in the Constituent Assembly on the question of State neutrality

assumed great importance. Proposals to enact such a clause were made in the
Constituent Assembly but were defeated.5 Some of them sought to incorporate
literally the phrase used in the first amendment of the American Constitution.6 One
proposal was in the terms: “the Indian Republic shall make no law respecting an
establishment of religion or prohibiting the free exercise thereof”.7 Dr. B.R.
Ambedkar, in his Memorandum and Draft Article on the Rights of States and
Minorities of March 1947 proposed that the future Constitution of India should
contain a clause declaring that “the State shall not recognize any religion as a State
religion”.8 The other was in the following words: “the State shall not establish, endow
or patronize any particular religion. Nothing shall however, prevent the State from
imparting spiritual training or instruction to the citizens of India”. 9 This amendment
seems to be inspired by section 116 of the Constitution of Australia.10 Yet another
amendment attempted to free personal laws from the State‟s legislative jurisdiction
but this amendment too was outvoted.11

The framers of Indian Constitution thought that the State should not
completely take its hands off religion by enacting a high wall of separation between
State and Church. There were number of good reasons for this attitude. One perhaps
was the philosophical reasons, or the Universalist approach of Indian religions,
particularly Hinduism. Another could have the historical background of peaceful

4
A.R. Blackshield, “Secularism and Social Control in the West: The Material and The Ethereal” in
G.S. Sharma (ed.), Secularism: its implications for law and life 9-85 (N.M. Tripathi Private Ltd.,
Bombay, 1966).
5
Constituent Assembly Debates 815, 824, 839 (Vol. VII, 1948).
6
Id at 839
7
Ibid
8
Quoted from B.S. Rao, The Framing of India’s Constitution: Select Document 87 (N.M. Tripathi,
Vol. II 1967)
9
Supra note 5 at 824, 830.
10
Section 116, the Constitution of Australia reads: The Commonwealth shall not make any law for
establishing any religion, or for imposing any religious observance, or for prohibiting the free
exercise of any religion, and no religious test shall be required as a qualification for any office or
public trust under the Commonwealth.
11
Id at 830, 839

3
harmony of various religions and enough space for their survival that led to the modus
vivendi of law and religion.12

Right to freedom of religion is a fundamental right under the Indian

Constitution. Articles 25-28 of the Indian Constitution confer certain rights relating to
freedom of religion not only on citizens but also on all persons in India. These
constitutional provisions guarantee religious freedom not only to individuals but also
to religious groups. These Articles seek to protect religion and religious practices
from State interference. India has no preferred or State religion, as such; all religions
are treated alike and enjoy equal Constitutional protection without any favor or
discrimination. No specific protection has been accorded to any religious group as
such. In S.R. Bommai v. Union of India13, a nine Judge Bench of the Supreme Court
examined the concept of Secularism in the Indian Context. According to Sawant, J:
“religious tolerance and equal treatment of all religious group and protection group
and protection of their life and property and of the places of their worship are as
essential as part of Secularism enshrined in our Constitution.” B.P. Jeevan Reddy, J.
observed: “while the citizens of this country are free to profess, practice and
propagate such religion, faith or belief as they choose, so far as the State is concerned,
i.e., from the point of view of the State, the religion, faith or belief of a person is
immaterial. To it, all are equal and all are entitled to be treated equally.”14

The concept of Secularism is not merely a passive attitude to religious

tolerance. It is also a positive concept of equal treatment of all religions. The concept
of Secularism was not expressly incorporated in the Constitution at the stage of its
making. However, its operation was visible in the Fundamental Rights and Directive
Principles. The concept of Secularism, though not expressly stated in the Constitution
was nevertheless, deeply embedded in the Constitutional philosophy. In 1976, through
the 42nd amendment of the Constitution the concept of Secularism was made explicit
by amending the Preamble. By this amendment the word „Secular‟ was introduced in
the Preamble to the Constitution and, thus, what was hitherto implicit was made

12
Y.B. Damle, “Process of Secularization” in G.S. Sharma (ed.), Secularism: its implications for law
and life 86-87 (N.M. Tripathi Private Ltd., Bombay, 1966).
13
AIR 1994 SC 1918
14
Ibid.

4
explicit. The Constitution does not define the secular as it is a very elastic term and
not capable of any precise definition and it best left undefined.15

A Secular State does not patronage to any particular religion. The State
maintains neutrality in matters of religion and provides equal protection to all
religions subject to regulation of Secular parts. The State guarantees to individuals
and corporate religious freedom. It deals with an individual as a citizen irrespective of
his faith or religious belief. The State neither promotes nor prefers any one specific
religion. For successful functioning of a democratic system, the concept of a secular
State is very essential. There can be no democracy if anti-secular forces are allowed to
play as they will divide followers of different religious faiths who will then be
fighting with each other. Therefore, the Constitution leaves the purely religious
matters to the individual and permits the State to charge of the Secular matters.16

Verma, J., delivering the majority opinion in Mohd. Ismail Faruqui v. Union
of India,17 observed in relation to Secularism:

It is clear from the constitutional scheme that it guarantees equality in

the matter of religion to all individuals and groups irrespective of their
faith emphasizing that there is no religion of the State itself. The
Preamble of the Constitution read in particular with Articles 25 to 28
emphasizes this aspect and indicates that it is in this manner the
concept of secularism embodied in the constitutional scheme as a creed
adopted by the Indian people has to be understood while examining the
constitutional validity of any legislation on the touchstone of the
constitution. The concept of secularism is the one facet of the right to
equality woven as the central golden thread in the scheme in our
Constitution.

It is a creed of the Constitution to promote a scientific and cultivate a humanist

spirit (vide Article 51-A). Various rationalists associations, scientific societies and
compassionate organizations strengthen a secular – scientific humanist outlook. Laws

15
Mohammad Ghouse, Secularism, Society and Law in India 1-7 (Vikas Publishing House Pvt. Ltd.,
Delhi, 1973)
16
Deepak Rawat, “Secularism and the Law – A process in nation building” in Secularism and the
Law 67-72 (National Foundation for Communal Harmony, New Delhi, 2010).
17
AIR 1995 SC 605.

5
like those which protect wildlife, prohibit animal sacrifice, ban child marriage and
polygamy, subject religious practices to requirements of public peace, public health
and public morals and prescribe use of religious appeal to pollute the electoral
process, these and like other measures accelerate the pace of secular transformation.
The political process, with adult suffrage and joined electorates the diffusion of the
Muslim population all over the country and permeation of the society ideology among
the people, break down religious bigotry. The all-powerful role of the judiciary and its
secular credibility, even for decoding and applying religious laws and adjudicating
communal disputes, is a force for good. The omens are good for law and religion to
evolve a modus vivendi of a secular republic.18

In addition, the Indian Constitution, by itself and with reference to

international law, makes freedom of religion one of the most fundamental rights of
people in India. Every person has right to freely propagate one‟s religion to another
and question the beliefs of another without deriding or casting aspersions on their
beliefs.19 Furthermore, every person also has the fundamental right to question and
change his own beliefs. As long as such change is an act of his own conscience and
not influenced by force, fraud, inducement, incitement or allurement, the State cannot
and should not intervene. There is a large body of legislative enactments in India, or
having a bearing on, religious matters pertaining to various faith groups. All these
legislation, as well as the established State practice, fully confirms to the
Constitutional dictates relating to secularism and parameters of religious freedom.
The various States in India have enacted anti-conversion laws with a view to prohibit
the conversion which is oriented by fraud, force, inducement or allurement. The
Constitutional validities of these laws have been checked by the High Courts of the
respective States as well as by the Supreme Court of India. Likewise, the several
States have enacted the laws relating to the regulation and governance of religious
endowments and waqfs in India. Side by side with the secular laws of marital
relations and property, India has retained the system of religion-based and
community-specific “personal laws” offering individuals a choice between their
respective personal laws. The personal laws applicable to various communities have
been codified and reformed to varying extents. Presently, it is the most difficult task

18
Ibid
19
Evangelical Fellowship of India v. State of H.P., (2013) 4 RCR (civil) 283.

6
before the legislature and judiciary that how to streamline the personal laws in
uniform system irrespective of giving religious and cultural choices to the community
in particular.20

1.1 Nature of Religion

Religion is certainly a matter of faith with individuals or communities.

Religion has its basis in a system of beliefs or doctrines which are regarded by those,
who profess that religion, are conductive to their spiritual wellbeing, but it would not
be correct to say that religion is nothing else but a doctrine or belief. A religion may
not only lay down a code of ethical rules for its followers to accept, it might prescribe
rituals and observances, ceremonies and modes of worship which are regarded as
integral part of religion and forms and observances might extend even to food and
dress. Justice Sunil Ambwani observed:21

Religion is a matter of faith, belief and doctrine, which concerns the

conscience i.e. the spirit of man; it must be capable of expression in
words or deed such as worship or rituals. Unlike United States of
America, where there is complete separation of Church and State and
French idea of lacite - described as essential compromise, where by
religion is relegated entirely to the private sphere and has no place in
public life what so ever, in India though there is no State religion, the
Constitution of India protects the religious rights of people and
maintains delicate balance between such right and public order,
morality, and health. The fundamental rights guaranteed by the
Constitution of India protect equality, including freedom of conscience
and the right to profess practice and propagate religion.

Timothy Fitzgerald writes:22

Religion is really the basis of a modern from of theology, which I will

call liberal ecumenical theology, but some attempts has been made to

20
Ibid.
21
“Religion and Jurisprudence”; Organized by SAMVADA - A Forum for understanding Religion
Sri Udasin Karshni Ashram, Ramanreti (Gokul), Mathura, (September 6-8, 2013) available at
http://www.//hcraj.nic.in/Paper-Speech/01-speech_samvada_06_09_2013.pdf; accessed on 31-
12017.
22
Timothy Fitzgerald, The ideology of Religion Studies 4-5 (Oxford University Press, Oxford, 2000).

7
 disguise this fact by claiming that religion is a natural and/ or a
supernatural reality in the nature of things that all human individuals
have a capacity for, regardless of their cultural context. This attempt to
disguise the theological essence of the category and to present it as
though it was a unique human reality irreducible to either theology or
sociology suggests that it possesses some ideological function…. That
is not fully acknowledged.

The term „religion‟ has reference to one‟s view of his relations to his creator,
and to the obligations they impose of reverence for his being and character, and of
obedience to his will. With obligation he may think they impose, and the manner in
which an expression shall be made by him of his belief on those subjects, no
interference can be permitted, provided always the law of society designed to secure
its peace and prosperity, and the moral of is people, are not interfered with.23

The most well-known effective definition was proposed by a fundamental

figure within modern protestant theology, Friedrich Schleiermacher. Schleiermacher
stipulates that the “essence of religion consists in the feeling of absolute
dependence”.24 While exactly what Schleiermacher meant by “feeling” in this context
is of course, subject to a variety of interpretations, this definition is clearly a product
of his conception of religion as, primarily, a way of experiencing reality rather than a
set of doctrinal formulations. Useful though his definition may be, it is clearly a
reaction against intellectual definitions. As such, it is perhaps, too one – sided to serve
as an objective definition. By defining religion purely in terms of a certain kind of
feeling – the feeling of absolute dependence - Schleiermacher would seem to
underestimate the important role played within many religions by religious trainings,
doctrines and creeds.25

Clearly, though, any assessment of the adequacy of a definition of religion is

likely to be influenced by the kind of theory of religion one presupposes. Definitions
are, it might be claimed, miniature versions of the theories which inspire them. And
there is an important difference between religious theories of religion and naturalistic
23
J.Duncan M.Derrett, Religion, Law and the State in India 35-55 (Faber and Faber, London, 1968)
24
Quoted from Dr. Victoria Harrison, “The Pragmatics of Defining Religion in a Multi-Cultural
World” 3 available at http://www.springerlink.com/content/40252425418865471/; accessed on 31-
12-2016.
25
Ibid.

8
ones.26 Typically, theories of the former type are developed by thinkers belonging to
some particular religious traditions. They usually presuppose a religious interpretation
of us and our world, and they attempt to justify that interpretation by providing an
account of the divine origin of the religion in question. A religious theory might, for
example, appeal to the role of prophets or angels as divine messengers instrumental in
the formation of a particular historical religious tradition or, more generally, religion
may be conceived as a response to revelation in the form of divine word or deed.
James Thrower claims that religious theories can be identified by the way they regard
religion as on to logically primary; that is by viewing religion as capable of explaining
other phenomena and in no need of expiation itself.27 Naturalistic theories, on the
other hand, regard the phenomena of religion to be in need of some explanation. In
contrast to religious theories, they attempt to explain religion by appealing to natural
facts, Freud‟s theories of religion, for example, is a naturalistic theory that tries to
explain religion by appeal to facts about human psychology.28 Influential forms of
naturalistic theory have been proposed by Karl Marx, Emile Durkheim, Max Webber
and, more recently, the sociologist E. O. Wilson. Such theories were especially
prominent in the second half of the nineteenth century and in the first half of the
twentieth. Their popularity seems to rise and wane in accordance with the success or
failure of the more general psychological, political, economic, social or biological
theory within which they are embedded.29

Karl Marx maintains that it is the economic factors that exert the primary
influence on people and largely shape the other aspects of society. Applying Hegel‟s
theory to his own theory of religion Marx uses Hegel upside down in an antithetic
way. While Hegel sees religion as the cause and creator or producer of alienation in

26
For a survey of prominent examples of these rival theories; see James Thrower, Religion: The
Classical Theories (Edinburgh University Press, 1999). Remarking on the sudden appearance of
these theories in the west from the mid - eighteenth century, Thrower suggests that “it is only when
religion has ceased to be at the living heart of a culture, that is, when its status has become
problematic, that explanations to account for its existence come to be foe.” Ibid., p. 3.
27
Ibid.
28
Naturalistic psychological theories typically suggest that religion originally arose out of a primitive
mental state such as fear or guilt, with Freud being the most famous exponent of such a view.
Alternatively, sociological theories, which are also naturalistic, typically propose that religious
beliefs and practices arose to fulfill a social function. One such function could have been a
stabilized society through encouraging people to confirm to social norms. The French sociologist
Emily Durkheim (1858-1917) went so far as to suggest religions originate in primitive human
beings who worshiped society. Quoted from Supra note 24 at 22.
29
Id. at 7.

9
the society, Marx maintains that religion is the consequence or product of alienation
in society.30

Another major influence on Marx‟s ideological development is the atheistic

writings of Ludwig A. Feuerbach. Responding to the religious atheism of Feuerbach,
Marx, in conjunction with his Hegelian heritage and his own materialistic conception
of human life, develops his complete idea of religion as a products of and response to
man‟s self - alienation. In his book, the Essence of Christianity, Feuerbach has
presented a theory according to which religion was the projection of man‟s highest
aspirations on to the cosmos and the cause and promoter of man‟s alienation from his
own depth and power by emptying his superlative qualities into the Divine. According
to him, God is nothing more than the human essence and aspirations projected to the
outward. Thus religion, he affirms, is “the separating of man from himself”.31

Karl Marx‟s theory of religion show an obvious and unmistakable influence of

Feuerbach‟s atheistic thought. Marx agrees with the psychology of Feuerbach‟s
atheistic opinion, but criticizes its lack of sociological understanding. There is no
systematic treatment of religion in Mark‟s writings. What he had to say consist of
many scattered passages throughout his works. The most extensive passage occurs in
his contribution to the critique of Hegel‟s philosophy of right which contains in highly
condensed form his overall approach to the analysis of religion. It is worth quoting in
full before discussion of its element:32

The basis of irreligious criticism is: man makes religion, religion does
not make man. In other words, religion is the self – consciousness of
man who has either not yet found himself or has already lost himself
again. But man is no abstract being squatting outside the world. Man is
the world of man, the State, and society. This State, this society,
produces religion, a reversed word - consciousness, because they are a
reversed world. Religion is the general theory of what world, its

30
Christian O. Uchegbue, “A Critical Evaluation of Marx‟s Theory of Religion”, Vol.1, No. 2,
American Journal of Social Issues and Humanities 53-54 (Nov. 2011); available at
http://www.ajsih.org/index.php/ajsin/article/viewfile/21/21; accessed on 01-01-2017.
31
Ludwig Feuerbach, The Essence of Christianity 41 (Harper & Row, New York, 1957); Quoted
from Ibid.
32
Quoted from Malcolm Hamilton, The Sociology of Religion – Theoretical and Comparative
Perspectives 92 (Rutledge, Taylor & Francis Group, London and New York, 2 nd ed., 2001).

10
 encyclopedic compendium, its logic in a popular form, its spiritualistic
point d’honneur, its enthusiasm, its moral sanction, its solemn
completion; it‟s a universal ground for consolation and justification. It
is the fantastic realization of the human essence because the human
essence has no true reality. The struggle against religion is therefore
mediate fight against the other world, of which religion is the spiritual
aroma.

The most outstanding „sociological‟ theorist and one who has exercised an
enormous inference on the sociology of religion is Emile Durkheim. Emile Durkheim
in the Elementary forms of the religious life conceptualized religion as a dichotomy
on the basis of social facts. Durkheim writes: 33

Religious phenomena are naturally arranged in two fundamental

categories: beliefs and rites. The first are states of opinion, and consist
in representation; the second are determined modes of action. Between
these two classes of facts there is all the difference which separates
thought from action.

The rites can be defined and distinguished from other human practices,
moral practices, for example, only by me special nature of their object.
A moral rule prescribes certain manner of acting to us, just as a rite
does, but which are addressed to a different class of objects. So it is the
object of the rite which must be characterized, if we are to characterize
the rite itself. Now it is in the beliefs that the special nature of this
object only after we have defined the belief.

All known religious beliefs, whether simple or compels, present on

common characteristic: they presuppose a classification of all things,
real and ideal, of which men think, in to two classes or opposed
groups, generally designated by two distinct terms which are translated
well enough by the words profane and sacred.

33
Emile Durkheim. The Elementary Forms of the Religious Life (Translated from the French by
Joseph Ward Swain) 36- 38 (George Allen & Unwin Ltd., London, 5 th Impression, 1964).

11
 A religion, Durkheim continues, is a unified system of beliefs and practices
relative to sacred things, that is to say, things set a part and surrounded by
prohibitions - beliefs and practices that unite its adherents in a signal moral
community called a Church. Establishing the inevitable connection between religion
and the Church also demonstrates that “religion must be something‟s eminently
collective”.34

Given the difficulties of both religious and naturalistic theories of religion,

some scholars have attempted to stipulate a definition that presupposes neither a
religious nor a naturalistic theory. Keith Yandell argues that the following definition
is natural between religious and naturalistic theories: “a religion is a conceptual
system that provides an interpretation of the world and the place of human beings in it
bases an account of how life should be lived given that interpretation, and expresses
this interpretation and lifestyle in a set of rituals, institutions and practices”.35 While
Yandell may well have succeeded in maintaining a natural stance between religious
and naturalistic definitions of religion, his definition never the less exhibits the now
familiar probation of including too much. Maoism, for example, is “a conceptual
system that provides‟ an interpretation of the world and the place of human beings in
it” and which “bases an account of how life should be lived given that interpretation”
and moreover, express this interpretation and life style in a set of rituals, institutions
and practices”.36 Yet must people would want to say that Maoism is must accurately
classified as a political ideology.37

Religion is how a man feels or experiences about the ultimate. Religion is an

experience as opposed to comprehension or theoretical knowledge. It is intensely
practical and daily comes to the use of man throughout his life. Swami Vivekananda
says that religion is always practical and is concerned with action and attainment,
realization, experience and fulfillment. “Realization is real religion, all the rest is only

34
Emile Durkheim, The Elementary forms of Religious Life, (Translated and with an Introduction by
Karen E. Fields) 22-26 (The Free Press, New York, 1995).
35
Keith Yandell, Philosophy of Religion: A Contemporary Introduction 16 (Routledge, London,
1999).
36
Supra note 24 at 7-8.
37
Ibid.

12
preparation.38 Happiness is only found in the spirit. Therefore, the highest utility for
mainland is to find this happiness in the spirit.39

Religion is the innate, spontaneous urge of each individual towards ultimate

freedom. There is yet another attempt to define religion as what a man will do about
fundamentals. Religion should guide all actions of men. In the words of Nataraja
Guru, “Religion is a whole-hearted relationship binding men with his fellow men or
with some unseen value factor.”40 Black‟s law dictionary describes religion as
under:41

A system of faith and worship usu. involving belief is a Supreme being

and usu. containing a moral or ethical code; esp., such a system
recognized and practiced by a particular Church, set, or denomination.
In construing the protections under the establishment clause and the
free exercise clause, courts have interpreted the term religion quite
broadly to include a wide variety of theistic and non-theistic beliefs.

Religion is a matter of faith stemming from the depth of the heart and mind.
Religion is a belief, which binds the spiritual nature of man to a Supernatural being; it
is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense
is a consecration and denotes an act of worship. Faith in the strict sense constitutes
firm reliance on the truth of religious doctrines in every system of religion. Religion,
faith or devotion is not easily inter-changeable.42

1.2 Major Religions in India

India is a plural society. It is rightly characterized by its unity and diversity. A

grand synthesis of cultures, religions and languages of the people belonging to
different castes and communities has upheld its unity and cohesiveness. Hinduism,
Jainism, Buddhism, Islam, Sikhism and Christianity are the major religions in India.
As per the religious census data of 2011, released by Registrar General and Census
Commissioner on Tuesday, August 25, 2015, the total population in the country in

38
Swami Vivekanda, “Necessity of Religion”, Religion Today 31 (Shree Ramakrishna Math, 1992).
39
Id. at 83.
40
Nataraja Guru, Wisdom Frame of Reference 69 (Narayana Gurukula, Varkala 1973).
41
Bryan A Garner (ed.), Black’s Law Dictionary 1405 (West Publishing Co., St. Paul, MN. 9 th ed.,
2009).
42
T.K. Gopal alias Gopi v. State of Karmataka, 2000 (6) SCC 168 SC.

13
2011 was 121 crore. Hindu population is 96.63 crore (79.8 percent); Muslim 17.22
crore (14.2 percent); Christian 2.78 crore (2.3 percent); Sikh 2.08 crore (1,17 percent;
Buddhist 0.84 crore (0.7 percent); Jain 0.45 crore (0.4 percent), other religions and
persuasions (ORP) 0.79 crore (0.7 percent); and religion not stated 0.29 crore (0.2
percent). The proportion of Muslim population to total population has increased by 0.8
percentage point (PP) in 2011, the census data said. The proportion of Hindu
population to total population in 2011 has declined by 0.7 (PP); the proportion of Sikh
population has declined by 0.2 (PP) and the Buddhist population has declined by 0.1
(PP) during the decade 2001-2011. There has been no significant change in the
proportion of Christians and Jains.43 The exposition of major religion in India can
briefly be described as under:

1.2.1 Hinduism

The dominant feature of south Asian religious history is a broad group of inter
connected traditions that we nowadays call “Hinduism”. Hinduism is now and
probably has been at all times the most prevalent religious persuasion of the
subcontinent. It is important to bear in mind that Hinduism does not share many of the
integrating characteristics of the other religious traditions we conventionally label the
“world religion”. Hinduism has no founding figure such as the Budha Sakyamuni,
Jesus of Nazareth, or Muhammad. It has no single text that can serve as a doctrinal
point of reference, such as the bibles of the Judaic and Christian traditions, the Islamic
Qur’an, or the Adigranth of the Sikhs. Hinduism has no single overarching
institutional or ecclesiastical hierarchy capable of deciding questions of religious
boundary or formulating standards of doctrine and practice.44

This is not to say that Hinduism, lacking these supposedly “essential”

attributes of other religions is therefore not a religion. Rather, the historical process by
which Hindus and others have come to consider Hinduism a unitary religious
formation differed markedly from other traditions. In one respect is one of the oldest,

43
Source: First Post, Wednesday, Aug. 26, 2015; available at http://www.firstpost,com/india/india-
has-79-8-percent-Hindus-14-2-persent-Muslims-2011-census-data-on-religion-2407708.html;
accessed on 2-01-2017. Sec also the Hindu, August 25, 2015; available at
http://www.theHindu.com/news/national/Muslim-population-growth-shows/article10336665.ece;
accessed on 2-01-2017.
44
Richard H. Davis, “Introduction - A History of Religions in India” in Donald S. Lopez (ed.),
Religion of India in Practice 5 (Princeton University Press, Princeton, New Jersey, 1995).

14
if not the oldest continuous recorded religion. Tracing itself back to a text that was
already edited and put into final shape by about 1200 B.C.E.45 In another respect,
though, it is the youngest, for it was only in the nineteenth century that the many
indigenous Indian religious formations were collectively named “Hinduism”. Before
this, not only did these groups not have a name for themselves as a religious unity, but
for the most part they did not consider that they were members of a single religious
collectivity.46

Hinduism is not based on any racial factor though the civilization has its roots
in the spiritual life of the Vedic Aryans, and has not lost the traces of its origin, it‟s
taken so much from the social life of the Dravidian, and other native, inhabitants that
it is difficult to disentangle, in modern Hinduism, the Vedic and the non – Vedic
elements. The interpenetration has been complex subtle and continuous. The different
communities which accepted Hinduism rose to the level of the society around them,
educated themselves in its spirit, took on its color and contributed to its growth. The
epics of the Ramayana and the Mahabharta describe the spread of Hindu ideals,
though in them the facts of history are obscured in a haze of legend. By the time this
spread was made effective in large part of India, the Vedic civilization found itself in a
world of altered values. Old institutions like Yajna47 were disparaged, and a new
onrush of devotional feeling pervaded the atmosphere.48 Hinduism is not limited in
scope to the geographical area which is described as India. Its sway in early days
spread in Campa, Cambodia, Java and Bali. There is nothing which prevents it from
extending to the uttermost parts of the earth. Her physical and spiritual frontiers do
not coincide.49

Hinduism is way of life, a Dharma. The word Dharma is derived from the
Sanskrit word “Dhri” which means “to hold together”. Those who profess the Hindu
dharma and seek to follow it are guided by spiritual, social, legal and moral rules,
action, knowledge and duties which are responsible for holding the human race
together. Dharma does not mean religion. It is the law that governs all actions. Hindu

45
Ibid.
46
Ibid.
47
Yajna literally means “sacrifice, devotion, worship, offering”, and refers in Hinduism to any ritual
done in front of a sacred fire, often with mantras. See S.G. Nigel, Axiological Approach to the
Vedas 80-81 (Northern Book Centre, New Delhi, 1986).
48
S. Radhakrishnan, Religion and Society 101-102 (George Allen & Unwin Ltd., London, 1947).
49
Ibid.

15
Dharma is known under other names such as Sanatana Dharma (Sanatana means
eternal and all pervading) and Vedic Dharma (Dharma based on the Vedas). The
Hindu religion not only consists of rules encompassing the rights and duties of kings
and warriors, but also provides norms of Desa Dharma (the word Desa Dharma
combines two words of Sanskrit, Desa, which means land, and Dharma, which means
duty) that govern inter- State relations.50

Hinduism is based on numerous tests. Because Hindus are considered to have

the authority to introduce new elements and ideas into their religion, countless
volumes of commentaries, traditions and teachings exist. The primary sources of
Hinduism are Sruti and Samriti. Sruti literally means what is heard, while samiriti
designates what is remembered. In this regard, sruti is revelation and smriti is
tradition. Sruti are the four Vedas, the Rig Veda, Sam Veda, Yajur Veda and Athurva
Veda. Each Veda consists of four parts: the Samhita (hymn), the Brahmana (rituals),
the Aranyakas (interpretations) and the vedhanta (Upanishads). The Bhagavad Gita
(the Lord‟s song), part of the epic poem Mahabharta, time most influential Hindu
text. Manu, Yajnavalkya and Prasara are the most celebrated law - givers of ancient
India; the smrities are named after them. Hindu jurisprudence regards the smritis as
the foundation of law. The epic poems Mahabharta and Ramayana are also a source
of law is various situations. The Sruti, Smriti and Dharma Sashtras prescribe the rules
for society based on Dharma.51

When we think of the Hindu religion, we find it difficult, if not impossible, to

define Hindu religion or even adequately describe it. Williams has observed that:52

It must be borne in mind that Hinduism is far more than a mere form
of theism resting on Brahmanism. It presents for our investigation a
complex congeries of creeds and doctrines which in its gradual
accumulation may be compared to the gathering together of the mighty
volume of the Ganges, swollen by a continual influx of Tributary
Rivers and rivulets, spreading itself over an ever- increasing area of

50
Manoj Kumar Sinha “Hinduism and International Humanitarian Law”, Vol. 87, No. 858,
International Review of the Red Cross 286 (June 2005).
51
Id. at 286- 287.
52
Monier Williams, Religious Thought and Life in India - An Account of the Religions of the Indians
of the Indian peoples based on a life’s study of their literature and on personal investigations in
their own country 57 (John Murray, Albemarle Street, London, Part-1, 1883).

16
 country, and finally resolving itself in to an intricate delta of tortuous
streams and jangly marshes….. the Hindu religion is a reflection of the
composite character of the Hindu, who are not one people but many. It
is based on idea of universal receptivity. It has ever aimed at
accommodating itself to circumstances, and has carried on the process
of adaptation through more than three thousand years. It has first borne
with and then, so to speak swallowed, digested and assimilated
something from all creeds.

In the case of Shastri Yagnapurushdasji and others v. Muldas Bhundar Das

Vashya and another,53 their Lordships have held that it is difficult to explain/ define
Hindu religion: unlike other religions is the world, the Hindu religion does not claim
any one prophet; it does not worship any one God; it does not subscribes to any one
dogma; it does not follow any one set of religious rites or performance; in fact, it does
not appear to satisfy the narrow traditional features of any religion or creed. It may
broadly be described as a way of life and nothing more. Their lordships have held as
under:54

Who are Hindus and what the broad features of Hindu religion are, it
must be the first part of our enquiry in dealing with the present
controversy between the parties. The historical and etymological
genesis of the word “Hindu” has given rise to a controversy amongst
ideologists; but the view generally accepted by scholars appears to be
that the word “Hindu” is derived from the river Sindhu otherwise
known as Indus which flows from the Punjab. “That part of the great
Aryan race”, says Moniér Williams, “which emigrated from Center
Asia, through the mountain passes into India, settled first in the
districts near the river Sindhu (now called the Indust). The Persians
pronounced this word „Hindu’ and named their Aryan brethren Hindu.

53
AIR 1966 SC 1119.
54
Ibid. at Para 27; Drawing primarily from English language sources, particularly those of
Radhakrishan and Monier, the Court put forward the view that Hinduism was “impossible” to
define. The Court concluded, “It (Hinduism) does not appear to satisfy the narrow traditional
features of any religion or creed. It may broadly be described as a way of life and nothing more”:
Ibid. at 1128.

17
 The Greeks, who probably gained their first ideas of India from the
Persians, dropped the hard aspirate, and called the Hindus „Indioi’:

J.D.M. Derett, eminent writer, has a long discussion under the caption „whom,
does the law regard as a „Hindu‟ by religion? Hindus believe in rebirth, in the
behavioral implications of Dharma in the connection, in the association between
action in this life and the Karma which influences future births and future
potentialities and tendencies. The belief that Hindus universally accept Karma and the
doctrine of a succession of rebirth is widespread and can hardly is an illusion. Nor
will be acceptance of all these beliefs by a non-Hindu make him a Hindu for legal
purposes if he is not a member of a social unit which is recognizable as Hindu.55

Ashish Nandy pointed out that56

The word Hinduism did not exist before 1830. It was created by
English colonialist. I quote this from the Secular Encyclopedia
Britannica, and not from an Indian text, that can be alleged to be
“Hindutva propaganda”, a common but ignorant idiom of attack. There
is no mention of the term “Hindu” or “Hinduism” in the Vedas
puranas or any record of religious texts prior to 1830 AD nor as they
found in any inscription or in any record of foreign travelers to India
before English Rule. The term “Hindustan” was first used in the 12th
century by Muhammad Gori who dubbed his new subjects “Hindus”.

Pandit Nehru coined that the famous Chinese pilgrim 1- Tsing who came to
India in the seventh century AC, writes in his record of travels that the „northern
tribes‟ that is the people of Central Asia, called India „Hindu‟ (Hsin-tu) but he adds,
„this is not at all a common name and the most suitable name for India is the Nobel
Land (Aryadesha) the use of the word „Hindu’ in connection with a particular religion
is very late occurrence.57 He further describes, Hinduism as a faith, is vague,
amorphous, many sided, all things to all men. It is hardly possible to define it or
indeed to say definitely whether it is a religion or not, in the usual sense of the words.

55
Supra note 30.
56
Ashish Nandy, “Hinduism versus Hindutva the inevitability of a confrontation”, available at
https://www.sscnet.ucla.edu/southasia/socissues/Hindutva.html; accessed on 07-01-2016; See also
Times of India February 18, 1991.
57
Jawaharlal Nehru, Discovery of India 4 (Teen Murti House, New Delhi, 21st Impression, 2001).

18
In its present form, and even in the past, it embraces many belief and practice, from
highest to the lowest, often opposed to or contradicting each other. It‟s essential spirit
seems to be live and let live.58

Another term which is recently used with the Hindu religious philosophy is
„Hindutva‟ Now, what is Hindutva? Agreed, it is rooted in the world Hindu that
historically referred to people beyond the Indus, but was treated into a religious
denomination by the British. All it means is, “the way of life of the Indian people and
the Indian culture or ethos” and by no means an anti-minority or anti-Muslim portion.
By concluding the term „Hindutva‟ was in and itself an appeal to religion, nor an
expression of enmity or hatred towards other religious groups, but simply the way of
life of Indian people. As several commentators have pointed out that the term
„Hindutva‟ has historically a very particular meaning associated with the political
philosophy of two early leaders of the Hindu rights, namely Vir Savarkar and M.S.
Golwalkar, and the political agenda of the Hindu right. A brief review of their
writings on Hindutva and Hindu Rashtra reveals that these terms are both an appeal to
religion and expression of enmity to religious minorities.59

The contemporary meaning of Hindutva has its roots in the writings of

60
Savarkar particularly his pamphlet “Hindutva: who is Hindu?” In first articulating
the concepts of Hindutva and Hinduness as political concepts, Savarkar emphasized
that „Hindutva is different from Hinduism:61

Hindutva is not identical with what is vaguely indicated by term

„Hinduism‟ by an „ism‟ is generally meant a theory or a code more or
less based on spiritual or religious dogma or system. But when we
attempt to investigate into the essential significance of Hindutva we do
not primarily - and certainly not namely - concerns ourselves with any
particular theocratic or religious dogma or creed and not linguistic
usage stood in our way than „Hinduism’ as a near parallel to Hindutva.

58
Ibid.
59
Barenda Cossman and Rattna Kapur, Secularism’s Last Sigh? Hindutva and (mis) Rule of Law 34-
35 (Oxford University Press, (1999).
60
V.D. Savarkar, Essential of Hindutva (sometime between 1921-22 Veer Savarkar completed his
historic book “Essential of Hindutva” while still in Andamans. This was later published under the
pseudo name „A Maratha‟) available at
https://www.savarkar.org/content/pdfs/en/essentials_of_hinutva.v001.pdf; accessed on 7-01-2017.
61
Ibid.

19
 Hindutva embraces all the departments of thoughts and activity of the
whole being of our Hindu role.

The Supreme Court of India has interpreted the term „Hindutva‟ in the
following words:62

„Hindutva‟ is ordinarily to be understood „as a way of life or state of

mind‟ and it is not to be equated with, or understood as a religious
Hindu fundamentalism. The words „Hinduism‟ and „Hindutva‟ should
not be construed narrowly to refer to only to the strict Hindu religious
practices unrelated to the culture and ethos of the people of India.
Rather, in the abstract, these terms should simply be seen to reflect the
way of life of the Indian people.

Throughout India‟s ancient history, the word Hindu was never meant to denote
religion. It was a geographic and cultural term used by the Greeks, Persians and
Arabs, descried from the Sanskrit word Sindhu, to describe the people living beyond
the river Sindhu. Thus, a term that originated to give geographical and cultural
identity to a people, mutated through usage attributed by the rulers through the
turbulent history of India, into a world connoting a religion, and that is how it stands
today.63

1.2.2 Jainism

In sixth century BC Buddhism had just been founded. The Vedic religion was
almost getting extinct and Hinduism as we know today was at a nebulous stage.
Jainism at that time was not only a mature and living religion but also one claiming a
hoary antiquity. All its tenets had fully developed by that time and these rights have
remained almost unchallenged all these 2500 years. Jainism is thus the oldest living
religion of India.64

The term Jain is derived from Jina meaning the Victor, or the conqueror-
implying conquest of final victory over the bondage of the ailments and ills of life.

62
Dr. Ramesh Yeshwant Prabhoo v. Shri Prabhakar Kashinath Kunte, AIR 1996 SC 1113 at 1129-
1131.
63
Jawaharlal Nehru, The Discovery of India 74 (Oxford University Press, Delhi, New York,
Centenary Edition, 6th Impression, 1994).
64
Ashim Kumar Roy, A History of the Jains 1 (Gitanjali Publishing House, New Delhi, 1984).

20
The ideal or the supreme purpose of Jainism is, therefore, the realization of the
highest or the absolute perfection of the nature of man, which in its original purity, is
free from all kinds of pair or bondage. Jainism does not consider it necessary to
recognize any other perfect being besides man or any being more perfect than the
perfect man. It is thus a religion of the perfect man. 65

The preaching is of „Jin‟ is the foundation of „Jain religion‟. One, who has
faith in preaching‟s of „Jin‟ and who practices it, is called Jain. As the Buddhist
religion was sponsored by Buddha and the Christianity was sponsored by Jesus, so
also the religion sponsored by Jin (Arhat) is called Jain religion. As the follower of
Shiva is called „Shaivs‟ the follower of Vishnu are called „Vaishnav‟, so also the
follower of „Jin‟ are called Jains. Christ, Shiva and Vishnu are personal names. But
the term „Jin‟ do not relate to any person. Jain religion does not believe in
worshipping an individual. It worships the real qualities of a soul who has attained the
state of „Jin‟ i.e., who has destroyed the veils of Karmas on knowledge, intuition and
power of soul.66

Jains have 24 Tirthankars. The Jains trace their history through the lives of 24
Tirthankars. According to Jain tradition, Lord Rishabh was the first interpreter of
Ahimsa (Non- violence). Lord Mahavira, popularly regarded as the founder of
Jainism, was the last of the Tirthankars who flourished from 599- 527 B.C. So he
could be called a reformer of the Jain religion or rejuvenator of the faith which was
already had a long tradition.67

Jainism is basically a salvation religion - a religion that puts significant

emphasis on attaining Moksha. In terms of the Karma doctrine, the complete freedom
of the soul from Karmic matter is called moksha. In Jainism moksha is not a place in
heaven, but the attainment of the state of liberated soul, a final emancipation from the
endless cycles of birth and death. According to German sociologist Max Weber,
Jainism is a liberation religion of “cultured professional monks”, and as such it

65
Shri Krishna Saksena, Essays on Indian Philosophy 54 (University of Hawaii Press, Honolulu,
1970).
66
Sohal Raj Tater, “Jainism- History, Philosophy and Traditions” 1; available at
https://www.drsohanrajtater.com/articles/57.pdf; accessed on 7-01-2017.
67
Ibid.

21
requires considerable amount of spiritual education and training on the part of those
who wish to follow the path of Jainism.68

The Jain path to salvation consists of simultaneous pursuit of the right belief
or perception; right knowledge and right conduct (Samyak- darshan, samyak- Jnana
and samyak- charitra). The three to gather are known as ratnatrayh (three jewels) in
Jain philosophy. Looking at the rigorous conditions associated with right perception,
right knowledge, the right conduct, etc.; it is difficult for a sociologist to escape the
conclusion that there is a strong element of indoctrination in Jainism. It does allow
free inquiry but only within the parameters set by itself.69

Jainism is one and undivided so far as its philosophy is concerned. But a little
earlier than the Christian era, the Jain began to split on the points of certain rules and
regulations for the monks, and the two well- known sects, shvetambra, or the white-
clad and the digambra, or the sky – clad, were formed. The points of difference
between the two are just minor ones and are: that the digambras hold that a perfect
saint goes without food; that he should own nothing not even cloths, hence the
practice of going naked; that salvation is not possible for women. The digambras have
no nuns.70

Later on, other minor sect called Sthanakavadi and Lunikas were also formed,
based on idol worship and similar matter. Not believing in a God or Avatars, the Jains
are not an idol worshipping sect, but that has not prevented them from erecting and
carving statues in honor of their siddhad, or perfect souls. 71

The fundamental principles of Jainism can briefly be stated as follows:72

1. The first fundamental principle of Jainism is that, man‟s personality is duel,

that is, material and spiritual, Jaina philosophy regards that every mundane
soul is bound by subtle practice of matter known as Karma from the very
beginning.

68
Prakesh C. Jain, Jains in India and Abroad – A Sociological Introduction 29 (International School
for Jain Studies, New Delhi, 2011).
69
Id. at 29-30.
70
A nun is a member of a religious community of women, typically one living under vows of
poverty, chastity, and obedience. See the Oxford English Dictionary, Vol. X at 599.
71
Supra note 65 at 57.
72
Vilas Sangave, The Jaina Path of Ahimsa 3-4 (Bhagawan Mahavir Research Centre, Solapur,
1991).

22
2. The second principle, that man is not perfect is based on the first principle.
The imperfectness in man is attributed to the existence of Karma in his soul.
The human soul in a position to attain perfection and in that true and eternal
state it is endowed with four characteristics, viz; Ananta – darsana, Ananta-
Jnana, Ananta- Virya and Ananta- Sukha, i.e., infinite perception or faith,
infinite knowledge, infinite power and infinite bliss.

3. Even though man is not perfect the third principle states that by his spiritual
nature man can and must control his material nature. It is only after the entire
subjugation of matter that the soul attains perfection, freedom and happiness.
It is emphatically maintained that man will be able to sail across the clean of
births and achieve perfection through the control of senses and thoughts.

4. The last basic principle stresses that it is only each individual that can separate
his own soul and the matter combined with it. The separation cannot be
effected by any other person. This means that man himself, and he alone, is
responsible for all that is good or bad in his life. He cannot absolve himself
from the responsibility of experiencing the fruits of his actions. This principle
distinguishes Jainism from other religions, e.g. Christianity, Islam and
Hinduism.

1.2.3 Buddhism

Buddhism, in its origin, one of the not magnificent and radical reaction in
favor of the universal human rights of the individual against the oppressing tyranny of
the pretended privileges of divine origin, of birth, and class. 73 The religion and legal
normative rules of Buddhism are based on the teaching of the Lord Buddha.74 Buddha
has snow us the path of the removal of suffering. It is the noble eightfold path of
Ariya – Atthagika marga or Ariya. The eight folds path is acknowledge as an
excellent course of spiritual training and has eight constituents of angas:75 (i) Right of

73
Cf. F. Tola, “Tres conceptions delhombre en law filosafia de la India” Quoted by Fernando Tola
and Carmen Dragonetti, Brahmanism and Buddhism: Two authentic conceptions of society in
Ancient India 1. Available at https://www.elb-studycenter.org/image/kokorastola-dragonett.pdf;
accessed on 7-01 2017.
74
The Lord Budda was born in 563 B.C. and died in 483 B.C., he was born in Lumbini Garden near
Kapilavasthu, See Eugne Watson Burlingama, Buddhist Legends 1 (Munshiram Manoharlal
Publications Pvt. Ltd., 1999).
75
Karan Singh, Religion of India 131-132 (Clarion Books, New Delhi, 1983).

23
understanding or sammaditthi; (ii) Right thought or samma samkapp; (iii) Right
speech or sammavala; (iv) Right action or samma kammanta; (v) Right livelihood or
samma ajiva; (vi) right efforts or samma vayama vii) Right mindfulness or samma
sati; and viii) right of concentration or sama samadhu.

When the Buddha preached his first sermon to the five monks at Banaras the
topics he selected were the following. First comes on introduction about avoiding
extremes of either self-indulgence or self-mortification. This was especially
appropriate to his hearers who were ascetics and disposed to over- rate the value of
austerities. Next he defines the middle way of eight fold path. Then he enunciates the
four truths of the nature of suffering, its origin, its cessation and the method of
bringing about the cessation. This method is no other then the eightfold path. Then his
hearers understood that whatever has a beginning must have an end. This knowledge
is described as the pure and spotless Eye of truth. The Buddha then formally admitted
them as the first members of the sangha. He then explained to them that there is no
such thing as self. We are not told that they received any further instruction before
they were sent forth to be teachers and missionaries. They were, it would seem,
sufficiently equipped. When the Buddha instructs his sixth convert, Yasa, 76 the
introduction is slightly different, doubtless because he was a layman. It treats of “alms
giving, of moral duties, of heaven, of the evil, vanity and sinfulness of desires, of the
blessing which come from abandoning desires”.77 Then when he catechumens‟ mind
was prepared, he preached to him “the chief doctrine of the Buddhas, namely
suffering, its cause, it cessation and the path”.78 And when Yasa understood this he
obtained the Eye of truth.79

The Buddha who, before long, succeeded in enlightening sixty disciples

decided to send them as messengers of truth to teach his new Dhamma to all without
any distinction, before dispatching them in various directions.80Dhamma is Buddha‟s
teachings which embodies in four Nobel truths. They are: a) the truth of suffering

76
Yasa was a bhikhu during the time of Gautama Buddha. He was the sixth Bhikhu in the Buddha‟s
Sangha and was the sixth to achieve Arahanthood. See “Wisdom Library” available at
https://www.wisdomlib.org/definition/yasa; accessed on 7.01.17.
77
Charles Eliod, Hinduism and Buddhism 126 (Routledge & Kegan Paul Ltd; London, Vol. 1, 1962).
78
Ibid.
79
Ibid.
80
Venerable Narada Mahathera, The Buddha and His Teachings 78 (The Corporate Body of the
Buddha Educational Taipei, Taiwan, 1998)

24
(Dukha); (b) the truth of cause of suffering; (c) the truth of the End of suffering; d) the
truth of the path leading to End of suffering.81

A Bodhisattava meditates upon the sublime brahmic states (Brahmavihara),

love (maître), compassion (karuna), joy (mudita) and equanimity (upeksa). He desires
to see all people happy. He has compassion for the suffering people. He delights in
seeing meritorious people. He remains indifferent when he comes across wicked
people. These ethical ideas are accepted in all schools of Buddhism, belonging to
Hinayana or Mahayana.82

The Buddhist sangha (group) is free from caste distinction. Buddhism has a
place for everyone without any distinction of race or color. This feature of Buddhism
was responsible for its spread in the countries of Asia in olden days.83

1.2.4 Islam

The first fleet appeared in Indian waters in 636 A.D. during the caliphate of
Umar, when Usman sakifi the Governor of Bahrain and Uman, sent an Army across
the sea to Tana.84 He was rebuked by the calipha who threatened to meet out dire
punishment to his kinsman if the experiment was repeated. About the same time
expeditions were sent to Broach and Dabul, but Umar‟s opposition temporarily
suspended the activities of the fleet and the policy of armed interference remained is
abeyance. During the caliphate of Umar the land approaches to India were explored
and a great deal of information was collected, which led ultimately to the conquest of
Sindh in the eighteen century by Muhmmad bin- Qasim.85

It was 711 AD that the first Muslim invader, Muhammad bin-Qasim, crossed
the sea, defeated Dhair and laid the foundation of the first Muslim kingdom in Sind.86
When the Arb Commander reached Alor, the citizens resisted the invaders vigorously
for several months. Then they sued for peace, insisted on two conditions: one, that no

81
Jing Yin and W.Y. Ho, Buddhism [Key Stage 2] 41-46 (Buddhist Education Foundation U.K,
2002).
82
R. Leela Devi, Ethics 60 (Sri Satguru Publications, Delhi, 1993).
83
Ibid
84
Tara Chand, Influence of Islam on India Culture 31 (The Indian Press Ltd., Allahabad, 1922).
85
Ibid.
86
Bishambhar Nath “Confluence of Islam and Hinduism” 8 (Center for Interfaith Understanding:
Monograph 17, Aligarh, 2016); available at https://www.pdf-archieve.com/2016/05/16/17-
confluence-of-islam-and-Hinduism/17-confluence-of-islam-Hinduism.pdf; accessed on 07-01-
2017.

25
resident of the city be killed and two, that there should be no interference with their
places of worship, Muhammed Bin Qasim in accepting these terms said: “the temples
of Hindustan are like the Churches of Christians, the synagogues of Jews and the fire-
temples of the Magians”.87

After the fragmentation of Caliphal rule in Sind and near areas in the tenth
century, Turk- Afghans, moving Westward out of Central Asia, some of them military
slaves (mamluk) of Muslim rules, other immigrant tribes that settled and assimilated,
had begun to reinvigorate Muslim expansion. As early as the eleventh century, some
of them launched raids into the subcontinents, among the Muhmud of Ghazna, whose
regional significance was sketched in the preface.88

In the late eleventh century, a new wave of Persianized Turks under the
leadership of Muhammad of Ghor (1162- 1206), began a series of conquest of
Ghaznavid centers in Punjab, taking Delhi in 1192, and subsequently the Hindu- ruled
kingdoms of Ajmer and Kanauj. Key features of their war arsenal were their superior
horses and their skilled horsemanship. Upon Ghori‟s death in 1206, Qutbuddin Aibek
(1210), a mamluk (military slave) took independent control of Delhi. He and his
successors, who rapidly expanded control across the north, would be known as “the
Slave Dynasty” (1206-1290). The Khiljis (1290-1316) extended the reach of Delhi
into the Deccan, with excursions reaching beyond in to the Deep South. The Tughluq
dynasty followed (1316-1413), but was in decline by the end of the century, falling
victim to the devastating raids of the Turko- Mongol founder of a vast Central Asian
empire, Timur (“Tamurlung” 1336-1405) who moved through the Punjab and into
Delhi in 1398.89

In the late sixteenth and seventeenth centuries the Mughal ruled an empire far
greater in population, wealth, and power than any of the other contemporaneous
empires with which they shared Turko Mongol heritage. The founder of Mughal in
India, Babur rule in Delhi lasted only a brief four years (1526-1530). His son
Humayun lost out after decade of rule to the rival Afgansur Dynasty (1540-1555, but
succeeded in briefly reclaiming power after long exile in Persia. Humanyun‟s

87
Ibid.
88
Barbara D. Metcalf, “Introduction – A Historical Overview of Islam in South Asia” in Barbara D.
Metcalf (ed.), Islam in South Asia: In Practice 5 (Princeton University Press, Princeton, 2009).
89
Id. at 6.

26
remarkable son Akbar (1556-1605) incorporated a new lineages into the ruling
structure, significantly, those of the Hindu Rajputs whose allegiance was secured by
imperial marriages to Rajput women (who did not convert to Islam), among them
Jodha Bai, mother of Akbar‟s son and successor, Jahangir. Akbar had the further good
fortune of having three fairly able successors: Jahangir (1605-1627), Shah Jahan
(1628-1658) and Aurangzeb (1559-1707) Aurangzeb‟s death in 1707 plunged the
empire into a grueling war of succession among his sons. The short reign of the
victor, Bahadur Shah I (1707- 1712), was followed by yet another bitter conflict in
which, upon Farrukh Siyar‟s (1713-1719) success, notable supporters of a defeated
claimant were for the first time executed en marse. Muhammad Shah‟s long reign
(1719-48) saw a steady decline of Mughal power as the Marathas extended their
power over control India and Gujarat. Provincial Governor, like those of Bengal and
the Deccan, tended to become autonomous. Finally in 1739-1740 Nadir Shah‟s
invasion and sack of Delhi proved a devastating blow from which the empire never
recovered. The Kabulsuba and southern Sind were seized by Nadir Shah; and
henceforth the Mughal emperor was virtually powerless to impose his authority on
any part of the empire nominally owing allegiance to him. The Mughal dynasty
formally continued in existence after 1803, under British tutelage until 1857, when the
British deposed the least emperor Bahadur Shah II an exceptionally fine Urdu poet-
and sent him as a prisoner to Rangoon.90

The face of the conqueror, however, was not the only visage of Islam in India,
nor even the most common one. With Islamic rule in India, itinerant Muslim sufi
teachers came to till the fertile religious field of India. Sufism is the generic term for
Islam mysticism. Already sharing features with some forms of Hinduism, Sufis found
it relatively easy to acclimatize their messages and concerns to the India environment.
Indeed, they came to regard themselves as a kind of spiritual government of India,
responsible for the religious welfare of the people, parallel to but separate from the
political government of the Sultans. The Sufis taught an esoteric from of Islam aimed
at an elite, and they were not consciously interested in attracting non- Muslim masses
to Islam. They used their Indian mother tongues to compose mystical poetry,

90
M. Athar Ali, “The Mughal Empire and its Successor” in Chahryar Adle and Isfan Habib (eds.),
History of Civilization of Central Asia – Development in Contrast: From the Sixteenth to the mid-
Nineteenth Century 302, 303, 308, 309, 319 (UNESCO Publication, 2003).

27
however, and their tombs became centers of a cult of saints that increasingly attracted
both Muslims and non- Muslims.91

As Islamic warrior elites from Turkey and Central Asia established their
authority in new part of India there was inevitably conflict. At the frontiers of
contested control, the conquerors sometimes symbolized their victories through
physical metaphor: the destruction of Hindu temples (as well as Jain and Buddhist
sites, equally “polytheistic”), often followed by the construction of mosques on the
leveled sites. Hindu chieftains, in response, might reconstruct these same religious
sites as a way of claiming independence from Delhi‟s political over lordship. In this
way temple sometimes became indices of political control.92 Quoting the various
authors, Rafqi observed:93

Although Islam had reached India as early as in the eight century on

the “wings of commerce”, but Muslim rule did not become a
permanent feature of Indian life until the thirteenth century, with the
establishment of the Delhi Sultanate. Islam contrary to the popular
belief was not forced upon the people of India by the sword. In fact,
there is no evidence to suggest that the Muslim rules of India engaged
themselves in the proselytizing activities on a “mass level or in a
fervent, zealous effort to propagate the faith”. It would again be
misinterpretation of history to say that the “Sultanate of Delhi” was
theocratic and that all the resources of the State were meant for the
protection and spread of Islam In fact the non-Muslim, in general
enjoyed freedom of worship. Hindus were allowed to live with honor
and dignity.

In India, as pointed out above, Islam had come in the wake of military
conquest of the region by the Turks and Mughals. They refrained from using State
power to force Islam because that was in conflict with their political interests. The
Turks were engaged in military conflict on one side with Rajput chieftains and on the
other with Mongols who had penetrated deep into western Punjab. For them winning
91
Richard H. Davis, “Introduction- A Brief History of India” in Donald S. Lopez (ed.), Religion of
India in Practice 32-33 (Princeton University Press, New Jersey, 1995).
92
Id. at 34.
93
A.Q. Rafqi, “India‟s interference with Islam” in Asghar Ali Engineer (ed.), Islam in India – The
Impact of Civilization 38-39 (Indian Council for Cultural Relations, New Delhi, 2002).

28
the support of the local population was more important than converting it to Islam or
bringing it under Shariat law which would have inevitably led to a conflict with
Sultan Balban, when pressed by Ulema to enforce Shariat, replied: “I am as much as
Mussalman as the Ulema but caution dictates against it.”94

The same policy was pursued by the Mughals. The advice that Babar,
bequeathed to his son Humayun is worth noting in this context. The bequest reads:
“Do not allow religious fanaticism to affect your thinking. Do justice without bias. Be
respectful to the rites, rituals and beliefs of the people of different faiths. Avoid cow
slaughter in particular”.95

Akbar also enthusiastically participated in Hindu festivals which were

celebrated in fully regality in his court. To facilitate this he ordered translation of
important Sanskrit books like Atharva Veda, Mahabharata and Ramayana into
Persian.96

Despite the fact, some rulers like Aurangzeb proved to be less flexible as a
ruler. Most historians are not kind to Aurangzed as it seems he was more interested in
Sunni orthodoxy than in administrative flexibility. He turned to the „Ulema‟ for
legitimation and sought to make the state more nearly “Islamic”.97 He was known to
have assassinated yet another Sikh Guru, to have broken alliances with Hindu leaders,
and to have restrained Hindu customs and traditions in the courts. He also found
himself trying to retain Mughal power against several forces at once: Marathas, Sikhs
and Afghans, for example, he abolished any taxes which were not explicitly required
by Islamic law (Sharia) and reimposed the Jaziya tax in 1679. The result of his
policies was fragmentation in the empire, disenchantment by formally aligned sub-
rulers, and the permanent weakening of the Mughal line.98

The partition of the country and establishment of avowedly Islamic State in a

part of the landmass is the result of British policy pursued for two centuries. The
British rulers believed that the stability of their rule depended upon conflict between

94
Akhtarull Wasey, “Indo-Islamic Cultural Interface” in Asghar Ali Engineer (ed.), Islam in India –
The Impact of Civilization 56-57 (Indian Council for Cultural Relations, New Delhi, 2002).
95
Ibid.
96
Id. at 58-59.
97
Fred W. Clothey, Religion in India – A Historical Introduction 130 – 131 (Routledge Taylor &
Francis Group, London & New York, 2006).
98
Ibid.

29
major religious communities, the Hindus and the Muslims. They directed their
administrative and cultural policies to accentuate differences through interpretation of
medieval Indian history as a period of continuous confrontation between the two.
Those who developed aversion to the British rule saw through the game and began to
stress commonness of interests and the essential unity of religions. 99 Thus, it
developed two kinds of responses of essential divergence and fundamental
convergence, which are reflected in two different approaches towards nationhood: (a)
common nationhood based on freedom of religion and commonness of secular
interests and, (b) two nations, one Hindu and the other Muslim.100

Traces of both can be witnessed even today, more of the former kind in India
and the latter in Pakistan. Free India‟s Constitution ensuring equality of citizenship,
freedom of conscience and protection of religion-cultural identities of minority
communities, including Muslims, highlights India‟s response to Islam. It is
noteworthy that it was adopted after the formation of a separate State, Pakistan, which
called itself Islamic.101

1.2.5 Sikhism

The Sikh religion was started by Guru Nanak as a way of worship that could
be enjoyed by all people. He built it upon practices that gave people such simple
dignities as having enough to eat, broke down class barriers by having them sit and
worship together as one, created strong families by upholding the sanctity of marriage
and family, and enabled everyone to express their love for the creator by singing
God‟s praises.102

The brief history of Sikhism is a story of an inexorable battle in the cause of

righteousness. During the last five centuries, the dauntless spirit of Sikhism has
flourished in ups as well as downs. As early as the beginning of the eighteenth century
the downtrodden people of North India, who had been subjected to inhuman treatment
and exploitation by religious hierarchy and marauded by alien invaders for centuries,

99
D.R. Goyal, “Indian Response to Islam” in Asghar Ali Engineer (ed.), Islam in India – The Impact
of Civilization 107 (Indian Council for Cultural Relations, New Delhi, 2002).
100
Ibid.
101
Id. at 107-108.
102
“Sikh Practices and Principles – Introduction to the History, Practices, and Principles of Sikh.”
Available at https://www.mrsikhnet.com/downloads/Sikh%20Practices%20&%20Principles%20-
%20Khalsa%20council.pdf; accessed on 10-01-2017

30
had succeeded in establishing their own empire in the entire North-West of the sub-
continent of India. The Sikh rule under Maharaja Ranjit Singh provided a model of
governance. It is remarkable and unique fact of history that during the half century of
his rule, the Maharaja did not award death penalty to anyone not even to those who
had made attempts on his own life such was the benevolence of the Sikh rule.
Unfortunately, the Sikhs lost their hard-earned self-rule. But the crusade for justice
and equality continues and will continue. This is the way of life in Sikhism.103

Sikh religion has its unique identity among world religions. Primarily, the ten
Sikh Gurus104 provided direct Divine knowledge and guidance to mankind while
living for a period of over two hundred thirty eight years from 1469 to 1708 A.D.
Then the divine spirit to the Sikh Gurus, “Guru Granth Sahib” containing the divine
hymns of Sikh Gurus (word of God) besides those of thirty other saints, Bhagats
whose spiritual thought was akin to Sikh though and who belonged to different
religious caste and creeds was ordained to be the eternal Sikh Guru in perpetuity,
which is unparalleled in world history.105

The word „Sikh‟ as we know is the Punjablised form of the Sanskrit word
shishya meaning disciple or a learner, especially a seeker of truth; 106 Dharma means
spiritual path Sikh Dharma means “the spiritual path of the student of truth.” It is a
path of progressive experience.107 Sikhism is an extension of the word „Sikh‟. People
who identify themselves as Sikhs, answer the question „who is Sikh?‟ in different
ways. One authoritative definition is: “any human being who faithfully believe in: one
immortal being; Ten Gurus, from Guru Nanak to Guru Gobind Singh; the Guru
Granth Sahib; the utterance and teachings of ten Gurus; the baptism bequeathed by
the tenth Guru and; who does not owe allegiance to any other religion.”108

103
Kharak Singh, “Preface” in Daljeet Singh and Kharak Singh (eds.), Sikhism – Its Philosophy and
History XI ( Institute of Sikh Studies, Chandigarh, 2 nd ed. 2008).
104
Guru Nanak Devji (1469-1539); Guru Angad Devji (1539 – 1552); Guru Amardasji (1552 – 1574)
; Guru Ramdasji (1574 – 1581); Guru Arjun Devji; (1581 – 1606); Guru Hargobindji (1606 –
1644); Guru Har Raiji (1644 – 1661); Guru Harkrishanjji (1661 – 1664); Guru Teg Bahadurji
(1665 – 1674); Guru Gobind Singhji (1675 – 1708); Quoted from Mewa Singh, Religion and
History of the Sikh 1469 – 2010. 149 (Singh Brothers Amritsar, 2010).
105
Ibid.
106
Harman Singh Shan, “Sikhism: An Original, Distinct, Revealed and Complete Religion” in Daljeet
Singh and Kharak Singh (eds.), Sikhism – Its Philosophy and History 195 (Institute of Sikh
Studies, Chandigarh, 2nd ed. 2008).
107
Supra note 102 at 4.
108
Eleanor Nesbitt, Sikhism – A Very Short Introduction 2 (Oxford University Press, New York,
2005)

31
 Sikhism invested the day-to-day life of the individual with a religious content
by organizing it around the concept of sangat (religious congregation) and the
dharmsala or gurudwara (religious meeting place). Central to both of them is the
corpus of sacred Sikh writing‟s canonized as the Guru Granth Sahib, which derives its
sacredness from being the divine word reveled through Gurus. All the sacraments of
birth, marriage and death and of initiation into Sikhism and of launching upon and
conclusion of all ventures have to be performed through recitation of the revealed
word from, and in the physical or imaginary presence of, the Granth Sahib, the eternal
embodiment of Sikh Guruship. It should be noted that Sikh theology has shown great
resistance to admitting any secular interpretation of this sacred nucleus of Sikh
faith.109

In 1950, when the Indian Constitution was adopted, Sikhs (along with
Buddhists and Jains) were categorized as Hindus. The Sikhs were deeply offended by
this and saw it as a refusal by Congress to recognize the independence of their
religion. Therefore, considering the Constitution unacceptable and having felt
betrayed, the Sikh representatives walked out in protest and refused to ratify the
Constitution. However, Sikh protests had virtually no effect and gradually all the
personal laws of the Sikhs were abolished and Hindu Laws were enforced upon them.
For example, the „Anand Marriage Act‟ was replaced by the „Hindu Marriage Act‟ of
1955.110

1.2.6 Christianity

There are two views among scholars about the origin of Christianity in India.
According to one, the foundation of the Christian Church in India was laid down by
St. Thomas, one of the twelve Apostils of Jesus. The other view would ascribe the
arrival of Christianity in India to the enterprise of Christian merchants and
missionaries belonging to the East Syrian and Persian Churches. But it has been
widely believed that India was St. Thomas‟ sphere of work. As Cardinal Tisserant

109
Attar Singh, “Secularism and Sikhism” in Dharam Singh (ed.), Sikhism and Secularism – Essay in
Honour of Professor Harbans Singh 89 (Harman Publishing House, New Delhi, 1994).
110
Anand Karaj is the Sikh marriage ceremony. Sikh Marriages were legalized by the British in 1909,
by the „Anand Marriage Act‟. See Devinderjit Singh, Sikhs, Arms and Terrorism 8 (Cambridge
University Sikh Society 1986); available at
https://www.weblearn.ox.ac.uk/access/content/user/3675/Sikhism/cuss86.pdf; accessed on 09-01-
2017.

32
says “there was a very ancient evangelization started by St. Thomas, the Apostle,
mainly in South India”.111

Krishna Iyer mentions:112

Christianity came to India almost immediately after Jesus. Legends

have it that St. Thomas came to South India in the early days of
Christianity and we find an ancient flourishing community of
indigenous Christians in Kerala. Churches 1500 years old exist even
now and it i , therefore, credible that Christianity has been an ancient
religion of India and not an arrival when Vasco-da-Gama and other
western trading companies moved into the west coast of India. Syrian
Christians existed in India long before the west embraced that religion.
In Travancore and Cochin, the Syrian Church flourished but in other
parts of India, including Malabar, and in the coastal regions of
Travancore and Cochin, Christianity spread with the coming of the
Portuguese, the French, the Dutch and British. Protestantism was
brought by the British in Travancore and Cochin and in a few other
places, the Jacobites, the Marthomites (With schismatic groups within
each) the Latin Catholics or rather the Roman Catholics and other tiny
sects and breakaway churches.

In the main, Christianity was spread in India by missionary pioneers. St.

Thomas himself is said to have converted a large number of Hindus. Still later,
catholic and protestant missionaries who came in the wake of the Portuguese, Dutch
and English occupations converted many more Indians. During the British Rule an
Ecclesiastical Department grew up as a part of the Government machinery to support
foreign missionaries and Army chaplains. Missionaries from the United States also
came to India for spreading Christianity.113

111
E. Tisserant, Eastern Christianity in India 10 (Orient Longman, London, 1957).
112
Supra note 2 at 51.
113
Dhirendra K. Srivastava, Religious Freedom in India – A Historical and Constitutional Study 159
(Deep & Deep Publications, New Delhi, 1983).

33
 The propagation of religion is an essential part of all well-known faiths. But
when a Hindu propagates his religion, his object is not to convert others to Hinduism;
whereas for a Muslim or a Christian the ultimate object of propagation is to convert.114

The Rev. R.C. Das wrote: 115

The statements that one may preach but not convert or that in serving
one should not be actuated by motives of conversion, show confusion
of thought and a lack of knowledge of psychology and of normal
human behavior. Why is something preached? The word „conversion‟
simply means change. The Hindu does not object to conversion in
politics, in a new attitude to science, history, or philosophy. How then
is objection to religious conversion valid where a man‟s happiness and
welfare are even more at stake?

In the Indian Christian view, effective propagation will lead to inward

conversion manifested in outward change of religious affiliation.

The Indian Christians, both Catholic and Protestants, frequently express the
view that the freedom of religion should include a right to win adherents of other
faiths. In 1945, whilst the Indian Constitution was still in its embryonic stage, the
Joint committee of Catholics of India and the All – India council of Indian Christians
passed a resolution declaring that in the future in the Constitution of India not only the
free profession, practice and propagation of religion should be but that some provision
be enacted so that change of religion would not create any civil or political disability.
In the Constituent Assembly, many Christian members expressed the view that the
right to propagate religion or the right to convert others was the most fundamental of
Christian rights.116

Christian law governs Christians and their religious plurality has resulted in
divergent personal laws being applied by the courts. So we find in Travancore and
Cochin different family laws of inheritance and succession governing the Christian
communities. In Malabar, the Indian Succession Act, the Christian Marriage Act and

114
Arya Samajists, of course, come in exceptional category; Ibid.
115
R.C. Das, “ The Christian Enterprise and the Government Vol. 74, N.C.C. Review 381 (1954); see
Donald Eugene Smith, India as a Secular State 173-174 (Princeton University Press, New Jersey;
Oxford University Press, London and Bombay, 1963).
116
See Supra note 113 at 159.

34
the Indian Divorce Act – A legislative regency of British India – applies to the
Christians. Church litigation, inevitable when schisms abound, has brought into play
cannon law even as Hindu and Muslim religious disputes have been judicially decided
on the basis of their religious laws. Statutes have stepped into regulate religious and
charitable trusts also.117

1.2.7 Zoroastrianism

The Parsis of India are a community which can often only be described in
terms of superlatives. They belong to one of the world‟s oldest religious traditions,
and they are now India‟s smallest community, yet they are among those who have
exercised the greatest influence on the subcontinent, having been foremost in so many
areas all out of proportion to their demographic size. Zoroastrianism, the religion of
the Parsis, takes its name from the ancient Iranian prophet Zoroaster who is variously
dated to between 1400 and 1200 BCE;118 it was the State religion of three Iranian
empires – Acharmenian, Parthian and Sasanian – from the Sixth century BCE to the
seventh century CE.119

The ancient name of the country of the Iranian people, as it appears in the
oldest Iranian writing, is AV. Airya - , airyana-, airyana- vaejah.120 This ancient name
of the country was applied to various lands and countries to which the Iranian people
migrated in there long and chequered history. The Avesta term airyana – appears as
Eran, Iran in later speech. Hence the term Iran is generally used for the country.121

The term “Parsi” literally means a resident of “Pars”, and ancient province in
south-western Iral. Hence originally it is an ethnic term. Earliest reference to the
Parsis is found in the Assyrian inscription of Salmanaser III (854 – 824) as Parcesa,
along with Amadi, the Medas. The Medas and Persians are frequently mentioned in
the Old Testament. The Archaemenian Emperor Darius 1 (521- 486) mentions Para
and Mada (the Persians and Medians) in the inscriptions on the rock of Bahistan. He

117
Supra note 2 at 51.
118
John R. Hinnells and Alan Williams, “Introduction” in John R. Hinnells and Williams (eds.),
Parsis in India and the Diaspora 1 (Routledge Taylor & Francis Group, London and New York,
2007).
119
Ibid.
120
H.K. Mirza, Some Religious Problems facing the Parsi Community 1 (Dastur Dr. H.K. Mirza,
Bombay, 1st ed., 1980).
121
Ibid.

35
takes pride in his Parsi ancestry and Iranian lineage, and states in the inscription at
Naqush-I- Rustan ( R.G. Kent, old Persian): “1, Darius the king ….. Archaemenian, a
Parsi, son of a Parsi, of Iranian lineage”.122

The Zoroastrians of India came to be known as Parsis i.e. „Persian‟

(inhabitants of the Iranian province of Parsis, modern Fars) and as their name implies,
for the Parsis, the sense of their ancestral part remains both relevant and important.
The Parsis also refer to themselves as „Zarathustrians‟ Zarthosti‟ „Mazdayasnanj‟, to
signify their religious identity so followers of the message of Zarathustra and as
worshipers of Ahura Mazda.123 In India, the Parsis became a prosperous and
influential community, retaining the characteristics of an ethnic and religious
minority. The story of the Indian Parsi is narrated by Nehru in his Discovery of
India:124

Iral, like India, was strong enough in her cultural foundation to

influence even her invaders and often to absorb them. The Arabs, who
conquered Iran in the seventh century A.D, soon succumbed to this
influence, and in place of their simple desert ways, adopted the
sophisticated culture of Iran.

The Persian language, like French in Europe, became the language of

cultured people a cross wide stretches of Asia. Iranian art and culture
spread from Constantinople in the west right up to the edge of the
Gobi desert.

There seems to be little doubt that the Indus valley civilization had
some contacts with the contemporaneous civilization of Iran and
Mesopotamia. There is a striking similarity between some of the
designs and seals. There is also some evidence to show that there were
contact between Iran and India in the pre- Achmian period. India is
mentioned in the Avesta and there is also some kind of a description of
north India in it. In the Rig Veda there are references to Persia- the
Persians were called „par shavas‟

122
Ibid.
123
Jesse S. Palsetia. The Parsis of India – Preservation of Identity in Bombay City 3 (Brill, Leiden,
Boston, Kolan, 2001).
124
Jawahar Lal Nehru, The Discovery of India 160 (The Signet Press, Calcutta, 1st ed., 1946).

36
 The story of the Parsis begins with their arrival in India, which, according to
Parsi tradition, was in the eight century C.E. The account of the Persian refuges
exodus from Iran and their arrival in India is almost entirely based on two narrative
works in Persian. The Qisseh- i- Sanjan or story of Sanjan written in 1599, by the
Parsi prist Behman Kaikobad Sanjana; and the Qissch – I – Zartushtian – I -
Hindustan, written by the Parsi Shapurji Maneckji Sanjana in Navsari between 1765
and in 1805.125 The traditional accounts together relate the peripatetic wanderings of
the Zoroastrians following the defeat of the last Sasanian King, Wazdagird III, at the
battle of Nihavand in 1642 C.E., by the Muslim Arabs. The Zoroastrians first migrated
to Khurasan, where they stayed for a hundred years, and then migrated to the island of
Hormuz in the Persian Gulf, where they resided for some fifteen years, before finally
undertaking the sea voyage to India. The Persian refugees first landed on the island of
Diu, off the Gujarat Coast, where they remained for some nineteen years, before
finally arriving on the western coast of India, at or near what would become the
Gujarat town of Sanjan.126

In every walk of life the Parsi has advanced himself. Indeed, in big industry,
the Parsees were pioneers and even in politics we find that the National Congress had
among its early leaders outstanding personages like Dada Bhai Naaroji and K.F.
Nariman. The religion of the Parsees is Zoroastrianism and they worship fire. Their
customs are peculiar but their language is Gujarati. It is tribute to the survival value of
this small community that in the professions and in the economic life of the country,
the Parsis imprint is incredible. Their laws differ from those of the rest and in that
sense, they have not merged in the mainstream of India.127

In the modern period, the most extensive and well - documented body of law
pertaining to Zoroastrians is the Parsi personal law of India. Since independence in
1947, Zoroastrian law in India and Pakistan has continued in the colonial mold,
building upon legislation and case law developed under the British Raj. This
examination focuses upon the three areas of law that maintain a distinctly Zoroastrian
flavor in modern India: a) inheritance; b) marriage; and c) religious trust. Inheritance
and marriage form the core of Parsi personal law. The law of religious trust sits

125
See Supra note 123 at 3.
126
Id. at 4.
127
Supra note 2 at 58-59.

37
outside of the personal law, falling within the general field of Indian trust law.
However, religious trusts have been the sits of major controversies among
Zoroastrians, particularly over conversion and the control of religious properties.128 A
brief reference to Parsi law in India is of interest at least for the reason that it does not
stem from a religious source. Prof. Irani, himself a Parsee and a jurist of authority,
writes;129

Unlike the great system of Hindu and Islamic law that has flourished
on the Indian sub - continent, Parsi law has no religious source. It is
largely based on Hindu customary law and rules of the English
common law compatible with Parsi circumstances. Its significance lies
in the successful adoption of systems of personal law intended for
people of different religions and cultures.

Unlike other communities, the Parsis did not bring with them their law from
Iran. As late as 1825, a British noted:130

The Parsis have no laws, for such books as they emigrated from Persia
were at that time all lost; and the rules, which, by their engagement
with the Hindu chief of Sanjan, they bound themselves to obey, form
together with the custom of the country which they insensibly picked
up in their intercourse with the people, a body of rules or common law
differing in few respects from that custom of the country founded on
Hindu law which regulates the whole of Hindu law. Authority over the
passes in all religious matters was vested in the priests and in all civil
and criminal matters in the Panchyat.

The personal laws applicable to the Parsees after the judicial system was
established by the British in India varied from place to place. In the presidency towns
of Bombay, Calcutta and Madras, the English civil law was applied, while in the
mofussil areas, their personal law was applied to the Parsis.131

128
Mitra Sharfafi, “Law and Modern Zoroastrians”, in Michael Stausberg and Yuhan Sohrab,
Dinshaw Vevaina (eds.), The Wiley Blackwell Companion to Zoroastrianism 299 (John Wiley &
Sons Ltd., Chichester, West Sussex, UK, 1st ed. 2015).
129
Phironze K. Irani, “The Personal Law of the Parsis of India” in J.N.D. Anderson (ed.), Family Law
in Asia and Africa 273-274 (George Allen and Unwin Limited New South Wales, 1968).
130
Id. at 276-277.
131
Id. at 108.

38
 Because of the Uncertainty and inequity of the application of different laws to
the Parsis, in the cities and in rural areas, a Parsi law Association was established to
study Parsi customs and usages and suggests legislative proposals. This Association
submitted a draft code on family law to the legislative council of India in 1860. A
Parsi law commission followed. Eventually, two statutes were enacted, the Parsi
marriage and Divorce Act (PMDA) and the Parsi Intestate Succession Act (PISA),
both of 1865.132 Both laws created a new regime of substantive personal law to
Zoroastrians. The Parsis Intestate Succession Act, 1865 was absorbed into the Indian
Succession Act, 1925 and then revised in the Indian Succession (Amendment) Act,
1939 and the Parsi Marriage and Divorce Act was absorbed into the Parsi Marriage
and Divorce Act, 1936 and then revised in 1988.

There are many other small communities such as the Jews, with religious
identities whose origin is either obscure or irrelevant. One may sum up the picture of
religious and personal laws in India as a colorful diversity with a modus vivendi and a
mosaic of religionised laws administered by a single secular judicial system and
modifies now and then by a single religion - free legislative system.133

1.3 Right to Freedom of Religion under International Law

The history of freedom of religion in international law may be traced back to

the thirty years‟ war in some early antecedents even beyond. 134 In modern
international law freedom of religion was originally included into the general
framework of minority protection. While attempts at including a provision concerning
freedom of religion into the League of Nations covenant failed,135 the system of
minority protection established after World War I offered the possibility to include
freedom of religion. In fact, the concern to protect the Jewish minority in Poland136
was the triggering factor which finally led to minority treaties not only with Poland,
but also with Czechoslovakia, Greece, Romania and the Kingdom of Serbs, Croats

132
Supra note 128 at 300.
133
Supra note 2 at 61-62.
134
Malkolm D. Evans, Religious Liberty and International Law in Europe 1- 41 (Cambridge Studies
in International and Comparative Law, 1997).
135
Id. at 83-103 “Their common ground was that religious persecution and intolerance are fertile
source of war”.
136
Id. at 105.

39
and Slovenes.137 The advantage of the inclusion of the minority treaties into the
system of the League of Nations must be seen in the fact that the League of Nations
was involved in the implementation of the protection clauses. The respective
commitments were expressly labeled „obligations of international concern‟.138

Modern international law is generally perceived as a secular international legal

system but the debate about its relationship with religion is an old and ongoing one.
The current global surge of religion and its interaction with different aspects of
international law have made the debate more relevant than ever. The specific question
of whether religion and international law should be regarded as friends or foes is not
only relevant to current debates on the maintenance of international peace and
security but also to the promotion and protection of international human rights across
the different cultures and civilizations of the world.139

The place of religion in the international legal system, or indeed any legal
system that purports to be secular, is likely to be controversial and complex. The
enlightenment fear of the irrational passion and divisiveness of religion continues to
discourage any overt discussion of relationship between law and religion. And when
religion is discussed in a context such as international humanitarian law, it is
described either as unmitigated good or as wholly evil.140 Some writers focus only on
the positive aspects of a particular religious tradition and dismiss any negative role
played by that religion as a misinterpretation of its true meaning. Other writers choose
only to focus on the more dangerous and divisive aspects of religion.141

However, and irrespective of the important achievement of the minority treaty

system as regards the protection of religious minorities, it is obvious that the minority

137
See Christian Walter, “The protection of freedom of religion within the institutional system of the
United Nations in universal right in a world of diversity – The case of religious freedom” 588-589
(Political Academy of Social Science, Acta 17, 2012); available at
http://www.pass.va/content/dam/scienzesociali/pdf/acta17-walter.pdf; accessed on 11-01-2017.
138
Article 12, Polish Treaty; Quoted from Ibid.
139
Moshood A. Baderin, “Religion and International Law: Friends or Foes?” European Human Rights
Law Review 637 (October 2009); available at
http://www.file:///c:/users/my%20pc/Downloads/Religion%20and%20International%20Law.pdf;
Accessed on 14-01-2017
140
Although not all writers fall into this trap; see William Vendley and David Little, “Implications for
Religious Communities: Buddhism, Islam, Hinduism and Christianity” in Douglas Johnston and
Cynthia Sampson (eds.) Religion, the Missing Dimension of State Craft 306 (Oxford University
Press, 1st ed; 1995).
141
See Carolyn Evans, “The Double - Eged Sword: Religious influences on International
Humanitarian Law”, Vol 6 Melbourne Journal of International Law 3 (2005).

40
prospection of the type established after World War I and individual human rights
protection is fundamentally different concepts. Therefore, the Universal Declaration
of Human Right (UDHR) of December 1948 is the first international document in
which freedom of religion as an international individual right is spelled out. The
declaration (UDHR) mentions:142

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 or community with others and in public or
private to manifest his religion or belief in teaching, practice, worship
and observance.

Since then, freedom of religion has remained separated from minority rights
although, of course modern anti-discrimination provisions also prohibit
143
discriminations based on religious grounds. The UDHR provides:

Everyone is entitled to all the right and freedoms set forth in this
Declaration, without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status. Furthermore, no distinction shall be
made on the basis of the political, jurisdictional or international status
of the country or territory to which a person belongs, whether it is
independent, trust, non- self- government or under any other limitation
of sovereignty.

Apart from the Universal Declaration of Human Rights (UDHR) one may
mentions Article 18 and Article 2 Para 1 of the International Covenant on Civil and
Political Rights (ICCPR), 1966. The covenant provides:144

1. Everyone shall have the right to freedom of thought,

conscience and religion. This right shall include freedom to have or to
adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to

142
Article 18, the Universal Declaration of Human Right 1948.
143
Article 2, Ibid.
144
Article 18, the International Covenant on Civil and Political Right, 1966.

41
 manifest his religion or belief in worship, observance, practice and
teaching.

2. No one shall be subject to coercion which would impair his

freedom to have or to adopt a religion or belief of his choice.

3. Freedom to manifest one‟s religion or beliefs may be subject

only to such limitations as are prescribed by law and are necessary to
protect public safety, order, health, or morals or the fundamental rights
and freedom of others.

4. The State parties to present covenant undertake to have respect

for the liberty of parents and, when applicable legal guardians to
ensure the religious and moral education of their children in
conformity with their own convictions.

Para 1 of Article 2 of the International Covenant on Civil and Political Rights,

1966, reads:

Each State party to the present covenant undertakes to respect and to

ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present covenant, without
distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion national or social origin, property, birth or
other status.

Similar rights have also been recognized by Article 2, Para 1 and Article 13
Para 3 (Religious and Moral Education) of the International Covenant on Economic,
Social and Cultural Rights, 1966.

The European Convention of Human Rights (ECHR) provides: 145

1. 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 or in community with others and in public or
private to manifest his religion or belief, in worship, teaching, practice
and observance.
145
Article 9, the European Convention on Human Right, 1950.

42
 2. Freedom to manifest one‟s religion or beliefs shall be subject
only to such limitations as are prescribed by law and are necessary in a
democratic society in the interest of public safety, for the protection of
public order, health or morals or for the protection of the right and
freedoms of others.

Article 12 of the American Convention of Human Rights (ACHR), 1978

provides:

1. Everyone has the right to freedom of conscience and of

religion. This right includes freedom to maintain or to change one‟s
religion or beliefs, and freedom to profess or disseminate one‟s
religion or beliefs either individually or together with others, in public
or in private.

2. No one shall be subject to restrictions that might impair his

freedom to maintain or to change his religion or beliefs.

3. Freedom to manifest one‟s religion and beliefs may be subject

only to the limitations prescribed by law that are necessary to protect
public safety, order, health, or morals, or the rights or freedoms of
others.

4. Parents or guardian, as the case may be, have the right to

provide for the religious and moral education of their children or
wards that is in accord with their own convictions.

Article 8 of the African Charter of Human and People‟s Rights (ACHR) 1981;
says:

Freedom of conscience, the profession and free practice of religion

shall be guaranteed. No one may subject to law and order, be
submitted to measures restricting the exercise of these freedoms.

Furthermore, a number of specialized human rights instruments contain

corresponding provisions for their specific purposes. This hold true, for example, for
United Nation Convention on the Rights of the Child (Article 14) or the Geneva
Refuge Convention (Article 4). International humanitarian law protects freedom of

43
religion of the civilian population (Article 27, Para. 1 GCIV) during occupation
(Article 58 GC IV), concerning prisoners of war (Article 34- Article 37 GCIII) and in
respect to the protection of civil object (Article 52, Para. 3 API).146

Elimination of all forms of Intolerance and of Discrimination based on

Religion or Belief 1981: the United Nations General Assembly adopted the
Declaration on the Elimination of all forms of Intolerance and of Discrimination
based on Religion or belief in 1981. It has been considered a major international
standard setting instrument pertaining to the freedom of religion or belief, the UN
Declaration on Elimination of all forms of Intolerance and of Discrimination Based on
Religions or Belief (henceforth the Declaration) is clearly the „most important
international instrument regarding religious rights and prohibition of intolerance or
discrimination based on religion or belief.147

The Declaration, as the name suggests, does not consist of a positive rendition
of freedoms regarding religion or belief. From the outset, it is set in the wider context
of the elimination of discrimination and as a whole. Its tone is, therefore, less
forthcoming, and more in line with the International Convention on the Elimination of
all forms of Racial Discrimination (ICERD)148 and the Convention on the Elimination
of all forms of Discrimination Against Women (CEDAW),149 rather than the more
positive elaboration rights in the Unites Nations Convention on the Rights of the
Child (CRC).150 The language is set towards preventing and eliminating
discrimination rather than protecting and defending particular associated freedoms.
The religious discrimination declaration is largely silent or specific preventing and
combative measures to be taken by States in combating discrimination based on

146
Supra note 137 at 590.
147
N. Lerner, “Religious Human Right under the United Nation” in J.D. Van Der Vyver and J. Witte
Jr. (eds.), Religious Human Rights in Global Perspective, Legal Perspectives 114 (Martinus
Nijhoff Publishers, Hague, 1996).
148
International Convention on the Elimination of All forms of Racial Discrimination (1965), which
came in to force in 1969. This convention was adopted through General Assembly Resolution, 21
December 1965.
149
Convention on the Elimination of All forms of Discrimination against Women, 1973.
150
United Nations Convention on the Rights of Child, 1989.

44
religion or belief.151 It also makes no mention of redress, equality before the law or
effective remedies for violation suffered. Despite all these Nazila Ghanea observed:152

This declaration is currently the best platform we have. We need to

work on it as the basis (albeit an incomplete basis) of activism is an
arena where few international platforms and standards actually exist.
The Declaration makes a tenuous but welcome start in a field where
much progress remains necessary - in elaborating legal standard,
focusing on implementation of protected rights and acknowledging the
need to respond effectively to violations. It is highly necessary to bring
the considerable normative force of the Declaration to the attention of
activists worldwide, to disseminate knowledge of it through
educational activities and to use it alongside other initiatives to
gradually change the political impediments standing in the way of the
effective implementation of its provisions. Despite its many
weaknesses it stands as a major advance in the development of
international norms governing the subjects the addresses.

It may generally be said that freedom of religion was an „easy case‟ during the
deliberations on almost all the instrument mentioned. It may also be said that the most
important universal and regional instruments of human rights protection have been
strongly influenced by the compromise found for the wording of Article 18 of the
Universal Declaration of Human Rights (UDHR). The International Covenant on
Civil and Political Rights (ICCPR) and the American Convention furthermore
highlight the importance of freedom of religion by including it into the so – called
non- derogable rights, i.e., rights which must be respected even in times of a national
emergency.153

151
An exception to this is Article 4 specific reference to State taking effective measures to prevent
and eliminate discrimination on the ground of religion or belief. However, no measures are
proposed or outlined, so the provision remains very vague; see Nazila Ghanea, “the 1981 UN
Declaration on the elimination of All forms of intolerance and of Discrimination based on Religion
or Belief: Some Observation” in Nazila Ghanea (eds.), The challenges of religious discrimination
at the Dawn of the New Millennium 9-10 (Springer Science + Business Media Dordrecht, Leiden,
the Netherland, 1st ed. 2004).
152
Id. at 30-31.
153
Supra note 137 at 590.

45
1.4 Review of Literature

Review of literature has a vital relevance with any research work. With the
help of literature review the possibility of repetition of study can be eliminated and
another aspect can be selected for the study. The literature review helps researcher to
remove limitations of existing work or may assist to extend the study further. Several
researches have been conducted to analyze the different aspects of religion in India
and abroad. But there is very little research and literature available on the subject
related to „law and religion and its impact on Indian society‟. The available literature
relating to the title of research can be summarized as under:

Jt. V.R. Krishna Iyer has done monumental works in the field of religious
literature. The book154 which relates to Law and Religion contains 17 chapters on
various aspects of relationship between law and religion. The author has given a
detailed discussion on the Indian religious panorama, complexity of religion and
politics and religious inequalities leading towards gender injustice. This book has
immense importance in present research work.

J. Duncan M. Derrett, a renowned author on personal laws and religious

matters in India, has done remarkable work on various issues relating to Indian
cultures, law and religious understandings. His book155 which deals with law and
religion in India is a dynamic work covering religion and its character, Hindu law in
ancient and modern times, Muslim law, religious endowments etc. This book is
helpful in the research to go in the right direction.

„Religious Freedom in India – A Historical and Constitutional Study‟, is a

great work, written by Dhriendra K. Srivastava.156 This book is a pioneering work
covering the historical and conceptual vistas of Indian legal and religious history. The
author has made an attempt to examine the complexity between law and religion
during ancient, medieval and modern period. Further the book highlights the
constitutional aspects and the problems of personal laws in detail. This work is highly
useful to build up the present study.

154
V.R. Krishna Iyer, Law and Religion (Deep & Deep Publications, New Delhi, 1984).
155
J. Duncan M. Derrett, Religion, Law and the State in India (Faber and Faber, London, 1968).
156
Dhriendra K. Srivastava, Religious Freedom in India – A Historical and Constitutional Study
(Deep & Deep Publication, 1983)

46
 The foreign authors have also contributed to a large extent. Donald E. Smith is
one of them. His work of wisdom relates to Indian religious tolerance, varied cultures
and problems relating to the parallel subsistence of religious diversities. His book157
examines the than constitutional status of secularism with reference to past religious
and cultural history of India. The author also mentioned some aspects of minority
rights, religious education and propagation. To some extent author tried to compare
Indian secularism with United States of America and other European countries. This
book is a guiding light for this research work.

Mohammad Ghouse authored a scholarly work on Secularism and also tries to

make an attempt to cover other components which make threat thereupon. This
book158 primarily focuses on secularism, communalism, Freedom of religion, temple
– entry, ex – communication, religious procession, personal laws etc. These topics are
of much importance in the present study as the research found these issues very much
contemporary.

Secularism has been a burning issue in India since independence. Resultantly,

many authors have worked and still working on this concept. The book „Secularism:
Its Implications for Law and Life in India‟, is a contributory work of many authors
which is edited by G.S. Sharma.159 The contributors have tried to analyze almost all
the possible aspects of secularism like implication of secularism, secularism in the
West, traditional view of secularism, secularism in Indian and Islamic jurisprudence,
extending its application on Uniform Civil Code, educational policies, State policies
etc. This book gives a very easy and basic understanding of the concept of secularism
and religion.

Prof. (Dr.) Tahir Mahmood is a renowned name in religious studies in present

time. He has given a penetrating view in Family law, Laws on Religion, and Rights of
Minorities. His work relating to Law and Religion is a unique work.160 The author has
undertaken in this book a comprehensive study of the laws relating to religion and

157
Donald E. Smith, India as a Secular State (Princeton, New Jersey, Princeton University Press,
London and Bombay: Oxford University Press, 1963).
158
Mohammad Ghouse, Secularism, Society and Law in India (Vikas Publishing House, Delhi, 1973).
159
G.S. Sharma (ed.), Secularism: Its Implications for Law and Life in India (N.M. Tripathi Pvt. Ltd.
1966)
160
Tahir Mahmood, Law of India on Religion and Religious Affairs (Universal Law Publishing Co.
Pvt. Ltd.).

47
concerning all religious communities in India. The chapters of this book are analytical
but not critical. Beyond Indian law, there is a cosmic dimension to the book as this
book cover the status and operation of religion under International Human Rights
Law. The book also covers the penal laws bearing on religion, religious conversions
and religious places. This book paves a very insightful way in this research work.

The researcher pertains to give a comparative view on religion with major

democracies of the world. Werner Menski‟s work161 on Comparative Law presents a
critical rethinking of the study of comparative law. It places legal pluralism more
confidently into the mainstream study of comparative law, addressing some of the
serious deficiencies of comparative law and legal theory in a global context. We fail
to admit that globalization does not primarily lead to universal homogenization, but
rather increased legal pluralism in ways that make legal research ever more
challenging and complex. This book provides a detailed historical overview of major
legal systems of Asia, Africa and China focusing on Hindu, Muslim, African and
Chinese laws. The subject matter covered in this book is of such enormous
dimensions that it is going to be a great help in the present study.

Patrick Olivelle has given an abundant work162 on smriti laws in India. The
author has discussed various legal provisions of Apastamba, Gautama, Baudhayana,
and Vasistha codes at length. These provisions are helpful to know the synthesis of
law and religion during ancient time.

F. Max Mullar has done a tremendous work in the field of translating various
ancient legal and religious books including Hindu, Buddha and Jains. This work is in
the form of numerous volumes titled „The Sacred books of the East‟, published by
Clarendon Press, Oxford, during 19th century. F. Max Mullar is the general editor of
this series and is assisted by various scholars. This series of work provide scholarly
knowledge encoded in Hindu shastra, Bodh literature and Jain philosophy. Therefore,
this granary of knowledge is a great source of information on this topic.

161
Werner Menski, Comparative Law in a Global Context - The Legal Systems of Asia and Africa
(Cambridge University Press, 2006).
162
Patrick Olivelle, Dharmasutras - The Law Codes of Apastamba, Gautama, Baudhayana, and
Vasistha (Oxford University Press, London, 1999).

48
 Emile Durkheim in his book163 has made an attempt to define the term
Religion according to its nature, object and scope. On the basis of supernatural
characteristics of Religion, he defines Religion as all sorts of things which surpass the
limit of our knowledge; the supernatural is the world of the mysterious, of the
unknowable, of the un-understandable. On this point he quoted Spencer‟s definition,
“the belief in the omnipresence of something which is inscrutable”. Another idea by
which the attempt to define religion is often made, is that of divinity. On this point
author has quoted the definition of Reville, “Religion is the determination of human
life by the sentiments of a bond uniting the human mind to that mysterious mind
whose domination of the world and itself it recognizes, and to whom it delights in
facing itself united”. This book is of immense relevance to know the nature and
definition of religion from multi facet ideologies.

S.K. Ghosh in his book164 has made an attempt to find out the notion relating
to freedom of religion in the Indian Constitution. Author has expressed the Genesis of
Muslim politics in India, which was totally based on religious norms of the Muslim.
Further he has made an attempt to discuss Muslim communal organization in India
and their impact on secular feature of the Indian Constitution, a critical note has also
been given relating to politics of Muslim personal law. This book helps in getting a
deep insight in social and political milieu of Muslims.

Edward Washburn Hopkins in his book165 has done a classic work on

evolution of religions and its traits in India. Author has discussed the religion of
Rigveda into four categories i.e., the upper Gods, the middle Gods, the lower Gods
and Yama and other Gods, Vedic pantheism, eschatology. Thereafter, the position of
religion in the Atherva Veda, has been discussed. The author has thrown light on
Brahmanic pantheism – the Upanishads, Jainism and Buddhism. Author has also
highlighted the modern Hindu sects, religious traits of the wild tribes.

D.D. Basu‟s book166 on Constitutional law is a very well-crafted work. Author

has given penetrating views on the Articles 25-28 and 30 relating to freedom of

163
Emile Durkheim, The Elementary forms of Religious Life (George Allen and Unwin Ltd., London,
5th impression 1964).
164
S.K. Ghosh, Muslim Politics in India (Ashish Publishing House, New Delhi, 1987)
165
Edward Washburn Hopkins, The Religions of India (Ginn and Company, Boston 1894, 1st Ed.,
1894)
166
D.D. Basu, Shorter Constitution of India (Butterworths – Wadhwa, Nagpur 14th Ed., Vol. 1, 2009)

49
Religion with the landmark judicial pronouncements. He has examined the
constitutionality of various State Legislations relating to religion. This book further
emphasizes that though Sikkisim, Jainism & Buddhism has its origin in Hindu
religion, still they bears separate entity, but for the purpose of Article 25(2)(b), these
religions should be considered as a part of Hindu religion. While discussing the matter
of religion the author very aptly observed that religion is not confined to religious
belief, but includes the practices which are regarded by the community as part of its
religion and may extend even to matters of food & dress. On the basis of various
judicial pronouncements the author has pointed out some activities which are not
necessarily to be taken into consideration while defining religion. The author has
given a fruitful note on the Freedom as to attendance at religious instructions or
religious worship in certain educational institutions, wholly maintained out of State
funds. For the constitutional part of this research work, this book is significant.

M.P. Jain‟s work167 on Constitutional Law offers scholarly views on freedom

of religion & conscience, as the religion has been a very volatile subject in India not
only before but also after independence. This book is not only confined to the religion
but also throws light on secularism. The term „religion‟ cannot be defined in a
comprehensive way; still there is an attempt to define it on the basis of judicial
pronouncements. Emphasizing on the point of religion the author has very prudently
examined the glaring issues of religious denominations, its establishment &
maintenance, right to acquire and manage property and religious endowments. The
examination of the Doctrine of Cypres and its relevance with the religious
endowments put a bead in the rosary of constitutional aspect of religion. Overall, this
book provides sufficient amount of knowledge about religion as a right as well as
reasonable restrictions over it.

H.M. Seervai in his authoritative work168 has extensively worked on the topic
of Religion. As he has defined what is religion and the difference between two aspects
of religion, namely doctrinal & ritual, the role of religion from the judicial eye
through various judicial observances and pronouncements. This book is a great
compilation of landmark case laws on religion. Detailed and concentrated study has

167
M.P. Jain, Indian Constitutional Law (LexisNexis Butterworths – Wadhwa, Nagpur, 6th ed., 2010)
168
H.M. Seervai, Constitutional Law of India (Universal Book Trader, Delhi, 4th edition, Reprint,
2015)

50
been done on the Articles 25-30 and State wise legislative enactments thereof. Along
with this author has given a comparative analysis of freedom of religion in America &
Australia. The author has critically analyzed under Para 12.101 that Article 26 and
Article 30(1) partially overlap with each other. Author has pointed out that no
interpretation can be put on Article 26 without considering its effect on Articles 29 &
30. This book is substantially important to cover the constitutional part of this
research work.

Laura Dudley Jenkins, in her Article169 has very precisely discussed the Right
to Conversion in India. Through this Article she has referred the State laws on
Conversion. Author also observed that no doubt freedom of religion includes right to
convert or re-convert the religion, but this right should not be an absolute one. It
should be legally curtailed. On this point the author has supported her arguments with
the help of Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance,
2002 which was repealed later, the Gujarat Freedom of Religion Act, 2003, Himachal
Pradesh Freedom of Religion Bill, 2007. Further, a critical note has been given on the
concept of Religion and politics. The Author concluded the article saying that in much
contemporary legal and governmental language about conversion in India, the right to
convert others is curtailed, and the right to convert one is the subject of indifference.

Tahir Mahmood on the topic of law and religion has written a scholarly
article170. In this article author points out various constitutional and legal provisions
pertaining to protection of right to freedom of religion in India. The author mainly
discusses Articles 25-30, community specific provisions, legislation and State
practices relating to conversion, endowments, shrines, protection of religious places,
foreign pilgrimages, laws of family relations, concept of Hindutva and many other
religious issues as well as judicial decisions thereof. As the article is a critical version
of law and religion so, it is helpful to make the study more comprehensive.

The Indian Law Institute has published a note on Anti-Conversion law and
Religious Freedom.171 In this publication the scope and ambit of freedom of religion

169
Laura Dudley, “Legal limits of Religious Conversion in India” Law and Contemporary Problems;
Vol. 17:109 (Spring 2008)
170
Tahir Mahmood “Religion, Law and Judiciary in modern India”, Brigham Young University Law
Review (2006).
171
“Freedom of Religion and Anti-conversion Laws in India: An Overview”. The Indian Law Institute
Law Review (Vol. I: I, 2010).

51
has been highlighted in first instance further it contains the freedom of religion laws
or anti-conversion laws enacted by the various States in India. These laws have been
critically analyzed with the judicial examination.

Ronald Neufeldt in his article172 points out the application of anti-conversion

laws in India with the help of the cases decided by the Supreme Court and the High
Courts‟ thereof.

M. Mohsin Alam‟s article173 has made a comprehensive study on models of

freedom of religion and construction of the wall between State and religion in India.
The author further highlighted various cases decided by the Supreme Court and the
High Courts on the subject matter of religion and secularism. Along with, the author
tried to analyze the Uniform Civil Code and its possibility in multi-religious society
like India.

1.5 Law and Religion – A Retrospective Glance

India is the birthplace of four major religions. These are Hinduism, Jainism,
Buddhism and Sikhism while Islam and Christianity arrived in the country soon after
they were found. All of these religions uphold values of peace and unity, but India has
witnessed innumerable instances of intolerance and violence based on religious
differences. There was a time in Indian history when religion provided, regulated and
fully controlled the legal and judicial system of the country. Throughout its history
religion has been an important part of the country‟s culture. Religious diversity and
religious tolerance are both established in the country by law and custom. A vast
majority of Indian associate themselves with religion. Whenever the legal system of
India admitted the operation of law, the rights and obligations of a Hindu are
determined by Hindu Law, i.e., his traditional law sometimes called the law of his
religion.174

Law as understood by the Hindus is a branch of Dharma. Dharma is an

expression of wide import and means of aggregate of duties and obligations-
Religious, moral, social and legal. Its ancient framework is the law of Smirities. The
172
Ronald Neufeldt, “Conversion and the Courts” Journal of Hindu Christian Studies (2000) Vol. 13
Article 7.
173
M. Mohsin Alam, “Constructing Secularism: Separating „Religion‟ and „State‟ under the Indian
Constitution” Australian Journal of Asian Law, Vol. 11, (2009).
174
Supra note 2 at 9-11

52
Smirities Text does not make any clear cut distinction between rule of law and rule of
religion. The philosophical theories that the Hindu propounded and the theological
belief that they held, made it but natural that there was blending, interlinking and
sometimes interlocking of religious, ethical and legal principles and concepts.175

In Medieval period India was invaded by foreign rulers. After the Muslim
conquest and the consequent decline of Hindu Supremacy, our Social and political
structure disintegrated. The legal theory of Muslims was governed by their religion
Islam. It was based on the teachings of the Quran, the religious book, the tradition of
the Prophet and precedent. No well-defined political institution was specifically
created by the Quran. The Muslim polity was on the conception of the legal
sovereignty of the Sharia or Islamic law, which was fully based on the religious
panorama of Muslims. Any attempt to break away from the organized community was
condemned by the religion. The Quran being of absolute authority, all controversy
centered round its interpretation, from which arose the Muslim law or Shariat. The
Muslim invaders of India presented a political and religious arrangement in the
country, the essential injustice and inequity of which could not be wholly removed
even by the most enlightened Muslim rulers. Religious intolerance and racism were
the bedrock of their policy.176

On the basis of the literature and work of various scholars one can perceive
that, if, in ancient time the Indian legal system was dominated by the Hindu religious
norms than in medieval period the Indian Legal System was governed by the Muslim
religious norms. What would have been the nature and object of law during ancient
and medieval period, one thing is clear that religion has played a vital and guiding
role for the formation and implementation of law. With the advent of the British, they
brought their own pattern of law-making under which the religion took a back seat
and the codification of law took place through by-passing the religions prevailing in
India at that time.

With the advent of British they brought the Benthamite & Austanian method
of codification of law. To some extent they used the coercive methods to implement
these laws. Despite of the codification the personal affairs of various communities

175
Supra note 48 at 104-113
176
Supra note 112 at 216-219

53
were still governed by their respective religions, ethics and traditions. The religion has
always been a guiding factor while making legislations, even during the British period
to govern the personal affairs of the different communities e.g. during the British Raj
the colonial courts were directed to apply, “indigenous legal norms” in matters
relating to family law and religion with “native law officers” advising the courts on
the determination of those norms. A number of Hanafi sources were translated into
English the advisory position of legal experts on Hindu & Muslim law were abolished
in 1864. Legal commentators on the development of the indigenous system of “Anglo
– Mohammedan law (now more commonly referred to as Indo-Muslim Law) attach
varying degrees of significance to the subsequently authoritative position of this work
(and the quality of the translations) the absence of judicial expertise in Muslim and
Hindu law, the introduction of principles of English law and procedure through judges
trained in the English Legal tradition and through interpretation of the residual
formula of justice and right or justice, equity and good conscience to imply mainly
English law, and to the position taken on customary or religious law.177

Even though most of the personal laws were not codified in the British era, but
few of the personal laws were codified under the influence or the impact of particulars
religion of that community. The glaring examples of these codifications are: The
Caste Disabilities Removal Act, 1850; the Registration of Mohammedan Marriages
and Divorce Act, 1876; the Guardians and Wards Act, 1890; the Anand Marriage Act,
1909; the Hindu Disposition of Property Act, 1916; the Indian Succession Act, 1925;
the Hindu Inheritance (Removal of Disabilities) Act, 1928; the Child Marriage
Restraint Act, 1929; the Hindu Gains of Learning Act, 1930; the Muslim Personal
Law (Shariat) Application Act, 1937; the Arya Marriage Validation Act, 1937; the
Hindu Women‟s Rights to Property Act, 1937; the Dissolution of Muslim Marriage
Act, 1939.

Before the British rule, there was no such uniform codification of personal
laws; the personal affairs of different communities were to be governed by their
respective customs and religious norms. Even when the British codified the personal
laws, they kept the customs and religious norms of different communities in their
mind. The main object of the codification of personal laws was not only to upload the

177
Id at 219-238.

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religious or customary norms of the respective communities but to melt down the
religious rigidity also.178

The struggle for independence was over by 15th August, 1947. The need of a
new Constitution forming the basic law of the land for realization of these ideas was
paramount. Therefore, one of the first tasks undertaken by independent India was
framing of a new Constitution. As provided in the cabinet mission plan the
Constituent assembly could not be called a sovereign body. It was brought about by
the British Government and could be abolished by it. But on the passing of the Indian
Independence Act of 1947 it became a sovereign body. The New Constitution of India
was adopted by the Constituent assembly on 26th November, 1949. The Constitution
came into force on 26th January, 1950, which is the date of the commencement of the
Constitution of India.

Despite the clear incorporation of all the basic principles of Secularism into
various provisions of the Constitution when originally enacted, its preamble did not
then include the word Secular in the short description of the country, which it called a
“Sovereign, Democratic and Republic”. This was, of course, not an inadvertent
omission but a well-calculated decision meant to avoid any misgiving that India was
to adopt any of the western notions of a Secular State. Twenty-five years later- by
which time India‟s peculiar concept of Secularism had been fully established through
its own judicial decisions and State practice, the preamble to the Constitution was
amended in 1976 to include the word „Secular‟ (along with Socialist) to declare India
to be a “Sovereign, Socialist, Secular Democratic Republic”.179

The concept of Secularism in the constitution is not that of irreligion or anti-

religion. It only means that there is no State religion. There is equal respect for and
protection of all religions, no one is to be discriminated against on the grounds of
religion and everyone is guaranteed full and equal freedom of religion. Articles 25 to
30 provide to all persons Right of Religion in all its aspects. The unity and fraternity
of the people of India, professing numerous faiths, has been sought to be achieved by
enshrining the ideals of a „Secular State‟, which means that the State protects all
religions equally and does not itself uphold any religion as the State Religion. The

178
Ibid
179
Supra note 15 at 1-7

55
question of Secularism is not one of sentiments, but one of law. Secularism is a part of
the basic structure of the Constitution. There is no provision in the Constitution
making any religion the „established Church‟ as some other Constitutions do. On the
other hand, the liberty of „belief, faith and worship‟ promised in the preamble is
implemented by incorporating the fundamental rights of all citizens relating to
„freedom of religion‟ in Articles 25-28, which guarantee to each individual freedom to
profess, practice and propagate religion, assure strict impartiality on the part of the
State and its institutions towards all religions.180

1.6 Problem Profile

Constitutionally, India is a Secular nation, but any wall of separation between

religions and State exists neither in law nor in practice, the two can, and often do,
interact and intervene in each other‟s affairs within the legally prescribed and
judicially settled parameters. Indian Secularism does not require a total banishment of
religion from the societal or even State affairs. The only demand of Secularism, as
mandated by the Indian Constitution, is that the State must treat all religions creeds
and their respective adherents absolutely equally and without any discrimination in all
matters under its direct or indirect control.

There is no doubt that some provisions of the Constitution and some of the
laws passed do interfere with the religious customs and practices of religious
communities. The religious tolerance or non-intervention does not mean secularism.
Rather partial non-intervention has led to religious fundamentalism in place of growth
of humanism. The conflict on Ramjanambhumi and Babri Maszid is the bright
example of fundamentalism. Thus religious fundamentalism has been indicative of a
„breakdown‟ of secularization process in India. It has brought escalation of ethno-
religious conflicts and national disintegration.

Critics have alleged that the Indian polity has not been able to develop along
true secular lines and it suffers from serious shortcomings. Constitutionally a political
party will forfeit its right to run a Government if it mixes up religion with politics. But
what about the right to existence of the party itself and the right of its members to

180
K. Srinivasan, “Secularism – Constitutional Provisions and Need to Strengthen Secular Values” in
Secularism and the Law 9-14 (National Foundation for Communal Harmony, New Delhi, August
2010)

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exercise other fundamental rights under Article 19, such as to hold Public meetings,
conduct Processions and the like? This is a question which have been for some time
bothering the Governments at both the Union and State levels. The answer to that
question is not to be found in the various judicial judgments. It is necessary to point
out that a political party is an association, the existence of which is guaranteed by
clause (1) (c) of Article 19 of the Constitution. Hence, the only grounds under which
it may be banned are those enumerated in clause (4) of Article 19, namely - i)
Sovereignty and integrity of India; ii) Public order; and iii) Morality.

Then again, a serious debate might arise whether the total banning of a party
would be „reasonable restriction‟. It is one thing to say that it may deprived of its
statutory rights under the Representation of People Act, 1951 and another thing to say
that it will forfeit its fundamental right to its very existence, if it mixes up religion in
its electoral manifesto or campaign – such activity, without any resort to violence,
cannot by itself, be held to violate „Public order or integrity‟ of the State.

Now, the next important step of observation is the application of Uniform

Civil Code under Article 44 of the Constitution and codification of personal laws.
Political history of India shows that during Muslim regime, justice was administered
by the Qazis who would obviously apply the Muslim scriptural law to Muslim, but
there was no similar assurance. So far, litigations concerning Hindus were concerned,
the system more or less, continued during the time of the East India Company until
1772, when Warren Hastings made Regulations for administration of civil justice for
the native population, without discrimination between Hindus and Muslims. The
Legislation – not religion – being the authority under which personal was permitted to
operate, the same can be superseded/ supplemented by introducing a Uniform Civil
Code. In this view of the matter no community can oppose the introduction of
Uniform Civil Code for all the citizens of India. The Successive Governments till date
have been wholly remiss in their duty of implementing the Constitutional mandate
under Article 44, however, the Supreme Court of India has suggested that the
introduction of Uniform Civil Code is the need of the hour to harmonize the law and
the multi religions in the secular State – as India has declared itself – and as it has
been made/ created as a cardinal feature of the basic structure of the Constitution.

57
 Religious conversion is another flaming issue which has become the subject of
passionate debate in contemporary India. From the early 20th century onwards it has
surfaced again and again in the political realm, in the media and in the courts. During
the last few decades the dispute has attained a new climax in the plethora of
newspapers, journals and books whose pages have been devoted to the question of
conversion. Apparently, to large group of Indians, this is to be an issue of crucial
import to the future of their country. Religious conversion is multifaceted and
multidimensional phenomenon. Indian society is a pluralist and heterogeneous society
with multiplicity of races, religions, cultures, castes and languages etc. religious
conversion has always been a problematic issue in India. Every incident of conversion
causes lot of hue and cry in society; especially it causes nostalgic feelings to Hindu
organization because of its inherent socio-political milieu. Rigid and stringent caste
system prevailing in Hindu religion is one of the most significant factors behind the
religious conversion. The legislative history relating to the issue of conversion of
India underscores the point that the authorities concerned were never favorably passed
towards conversion. While British India had no anti-conversion legislation meant to
protect the local people from religious conversion against their free will. Among these
were the Rajgarh State Conversion Act, 1936, and the Sarguja State Apostasy Act,
1942, and the Udaipur State Anti-conversion Act, 1946. The adoption of the
Constitution of India in 1950, with Article 25 guaranteeing freedom of conscience and
free profession, practice and propagation of religion, these pre-independence Acts
were seen more as anachronism and were allowed to lapse with the integration of the
princely States into the Indian Union. In the post- independence era, parliament took
up the matter for consideration, in 1954 the Indian Conversion (regulation and
Registration) Bill and later in 1960 The Backward Communities (Religious
Protection) Bill were introduced, both of which had to be dropped for lack of support.
The proposed Freedom of Religion Bill of 1979 was opposed by the minorities‟
commission due to the Bill‟s evident bias. However, Orissa was the first State in India
to enact a piece of legislation restricting religious conversions. The Orissa Freedom of
Religion Act, 1967, provides that no person shall “convert or attempt to convert,
either directly or otherwise, any person from one religious faith to another by the use
of force or by inducement or by any fraudulent means what were the compulsions in
1967 for Orissa to enact this law, which become precedent and a model for several

58
States, namely Madhya Pradesh (1968), Arunachal Pradesh (1978), Gujarat (2003),
Chhattisgarh (2003),Rajasthan (2005), Himachal Pradesh (2006). Various provisions
of these legislations have been struck down by the Supreme Court and the High
Courts. The legal vacuum in the area of religious conversion has given rise to
dissolution of marriages and bigamy etc. The matter is so flaming that the Law
Commission of India suo motu took up the subject to examine the existing legal
position on bigamy in India via conversion along with judicial rulings on the subject
and to suggest changes in various family law statutes.

Besides the above discussed points the next area of concern is the religious
violence and religious crimes. Religious violence in India includes acts of violence by
followers of one religious group against followers and institutions of another religious
group often in the form of rioting. Despite the secular and religiously tolerant
Constitution of India, broad religious representation in various aspects of society
including the Government, the active role played by autonomous bodies such as
National Human Rights Commission for minorities, and ground level work being out
by Non-Governmental Organizations specific and sometimes serious acts of religious
violence tend to occur as the root causes of religious violence often run deep in
history, religious activities and politics in India. The tragic portents for law to secular
sanity and sanitation are obvious and ominous. Some political parties have a vested
interest in communalism and communal violence to gain power, other tolerate it to
retain power. Some ride on the crest of communalism; other fear to swim against it.
The electorate, stamped in tradition, is responsive to appeal based on caste, religion
and language. It has not yet realized the value of the vote.

However, the Indian Penal Code in Chapter XV deals with offences relating to
religion. This chapter has been framed on the principle that every man has full
freedom to follow his own religion and that no man is in law justified to insult the
religion of another. Everyone must respect the religious susceptibilities of persons of
different religions persuasions or creed and desist from hurting the religious
sentiments of others. In other words, everyman is free to profess his own religion and
no man should insult religion and religious feelings of any class or group. Thus the
deliberate acts perpetrated by persons of one religious persuasion for the insult of
annoyance of persons of another persuasion have been made punishable under this

59
chapter. The five sections (295,295A, 296,297 and 298) contained in this chapter
punish defilements (to make unclean or destroy the pureness) of place of worship or
objects of venerations outraging or wounding the religious feeling and disturbing
religious assemblies.

Enactment of these Sections in the Indian Penal Code to curb the factors that
are responsible for inciting religious animosities is in accordance with the averred
declarations of religious toleration of the Government, which as such, is necessary to
prevent religious riots and crusaders.

Section 153 A of the Indian Penal Code, which was brought on the Statute
book in 1898 by the Indian Penal Code (Amendment) Act of 1898 with a view to
prevent breaches of the public tranquility and to prevent various classes coming into
conflict by mutual abuse and confrontation. In pursuance of the recommendations of
the National Integration Council in 1969, Section 153, 153 A and Section 505 of the
Indian Penal Code were extensively amended so as to widen the scope and extent of
the impugned Sections to prevent and remove communal tensions.

Besides the provisions of the Indian Penal Code relating to religious or

communal violence the Indian Parliament has introduced the Prevention of
Communal and Targeted Violence (Access to Justice and Reparations) Bill in 2011
with the view to curb communal violence in India. The main objectives of the Bill are,
to respect, protect and fulfill the right of equality before law and equal protection of
law by imposing duties on the central Government and the State Government to
exercise their powers in an impartial and non-discriminatory manner to prevent and
control targeted violence including mass violence, against Scheduled Castes,
Scheduled Tribes and religious minorities in any State in the Union of India and
linguistic minorities in any State in the Union of India; to thereby uphold Secular
democracy; to help secure fair and equal access to justice and protection to these
vulnerable groups through effective provisions for investigation, prosecution and trial
of offences under the Act; to provide for restorative relief and reparation, including
rehabilitation and compensation to all persons affected by communal and targeted
violence; and for matters connected herewith and incidental thereto .

The relationship between Religion and Law is famously complex. Religious

values constitute central elements of societal values that shape, the rules, principles

60
and institutions governing society. As every religion is founded upon certain tenets,
beliefs and adherers to certain practices, the question is to what extent the freedom of
religion should be permitted assumes the great relevance and importance in a
democratic society founded upon rule of law. In a democratic State, law and religion
slides into each other and are always minimal. They are treated as second class
citizens and denied equality in many respects with persons belonging to the State
religion. It is only in countries where the notions of Western democracy have taken
roots, the society became open and freedom of religious belief has come to be
recognized as an established value. In different democracies this freedom manifests
indifferent. The Constitutional provisions have several problems of interpretation. On
the whole the Supreme Court has interpreted these provisions with a view to promote
inter-religious amity, harmony and accord. The court has, on the whole, learned
towards the minority groups and has conceded to these certain rights over and above
the majority rights.

The judiciary in India has a dynamic role to play not only in creating a wall of
separation between State and religion but it has to polish the process of balancing
rights of rival religions to practices which are pregnant with breach of the peace and
of rural groups like untouchables, sacrifice of cows, rival religious procession, right of
inferior castes to offer worship in Shrines, of management of religious trusts and
endowments etc. overall to uphold the secular feature of the Indian Constitution.

1.7 Research Objectives

In India, the intersection of law and religion makes for a fascinating study.
The objectives of the study are as follows:

a. To examine the nature, origin and gradual development of religion in India.

Religion is considered to be a leading motive force in the evolution of law.
Therefore, the present study aims to find out the various religious norms
which were and are being used for the governance of the affairs of
communities.

b. To examine the constitutional and statutory provisions relating to religion.

c. To evaluate the position of secularism in India.

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d. To analyze the role of judiciary in defining and interpreting religion, religious
practice, religious organizations and religious freedom.

e. To provide suggestions to some conflict areas which will be dealt with in this
study along with supporting case laws, law Commission‟s reports and Reports
of other Committees; to see how best the current system seeks to handle them.

1.8 Research Hypotheses

To understand the modus vivendi between law and religion, the following
Hypotheses have been developed:

a. Religion in India plays an important role in the sphere of law

b. Relationship of law and religion is complex and multi-dimensional.

c. Religion and state often interact with each other despite the fact India being a
secular state.

d. Absence of uniform civil code is said to be antithetical to the unity and

integrity of India.

1.9 Research Methodology

The Methodology of the present study has been designated in such a way so
that the socio-legal aspect of Religion and its practices in India may be analyzed. In
order to examine analytically the provisions of law, rules and regulations pertaining to
the abovementioned aspect of the study, secondary information/ sources have been
received upon. A major part of this work relate to the theoretical aspect of the
problem of the study. Decided cases by the courts pertaining to freedom of Religion
and its practices have been analyzed critically. Reports of the Commissions/
Committees have been examined for the correct perspective of the present study.
Research on the topic is legal and the methodology is doctrinal. The sources of this
research work have based on law journals, case laws, internet sites, newspapers and
guidance given by the supervisors.

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1.10 Scheme of the Study

The present study is divided into seven chapters.

Chapter – I is devoted to the general introduction of law and religion, nature of

religion, major religions prevalent in India and the major debatable issues of present
scenario.

Chapter – II is an endeavor glancing historical development of religion and its

impact on law during ancient, medieval and modern period. Law and religion has
always shared a complex relationship since the inception of society. Sometimes
religion tried to overpower law and there are also instances when law has tried to
supersede the religion. This chapter examines the evolutionary process of this
complex and mystical relationship between religion and law.

Chapter – III focuses on the conflict between Law and Religion as it is a

universal phenomenon. It not only affects the multi-religious and multi - cultural
society like India but also those countries which do not have so much religious
diversities. The developed democracies of the world are also struggling with the
conflict of law and religion, despite the fact that they have adopted the complete
separation of State and Church. In this chapter an attempt has been made to find out
the religious as well as secular policies in the United States of America, United
Kingdom, France, Australia, Switzerland and Russia.

Chapter – IV is devoted to the Religious freedom of individual(s) as well as of

group(s). Religion is not merely a belief or devotion, it becomes meaningful when it is
freely professed, practiced and propagated. The Constitution of India not only protects
the conscience of the people but also protect an overt act thereof. This chapter
analyses various provisions of the Constitution of India relating to non-discrimination
on the basis of religion, fundamental right to freedom of religion, protection of
minorities, Uniform Civil Code, prohibition of animal slaughter on religious
occasions, religious community specific rights etc.

Chapter – V deals with other legislative framework on freedom of religion in India.

Religion is a matter of faith. One is free to choose the religion of his choice for this purpose
he is given the liberty to change or convert to his desirous religion. But this freedom comes
under suspicion when it comes in the knowledge that his choice of conversion was not free or

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it was driven by some allurement and fraud. Taking the cognizance of this problem, various
States in India have enacted Statutes governing conversion. Likewise, the governance of
religious and charitable institutions in India is also a crucial matter and the States have also
enacted legislations for the smooth functioning of these institutions. Besides these legislative
efforts, many personal laws have also been enacted to govern the personal affairs of
respective religious communities. Indian Penal Code also penalizes various religious
offences. This chapter is an attempt to analyze these statutory provisions along with other
community specific laws.

Chapter VI examines the judicial quest on the complex issues of religion and
its entanglement with law. As the demand of law arises from the society it is the job
of Legislature to make law on those matters but legislature has kept itself away from
making legislation on the sensitive matters of religion. It has always thrown the ball in
the court of judiciary to deal with these matters. And the judiciary has always tried to
rationalize the law on such religious matters. This chapter examines the various
landmark decisions of Hon‟ble Supreme Court of India and various High Courts
relating to the religion and issues connected therewith.

Chapter VII sums up the study. On the basis of the critical and analytical study
in hand the researcher has drawn conclusion and has tried to put forward some
suggestive measures for future reference.

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