When Religion and Law meet – Law Prevails over the other

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The terms ‘religion’ and ‘law’ are two complex and also sophisticated words that have shared history and has continued to grow in the modern world. Religion aims to constitute human consciousness and behaviour in all domains of private and public life. Law and religion are colonised in political power in many nations. From many centuries amid revolutions and reformations, law and religion have not been separated. In most of the continents religion is embedded in daily practice. Law and religion’s relation has constantly transformed through many centuries in all the continents. Many religious thinkers have influenced over the decades in many western countries.Many revolutions like French, American and Russian revolutions secularized the Western laws.

During the British period, Hindus and Muslims personal laws were administered in the regular courts by judges trained in, and under the common law system.  The courts relied on translations of texts on their own precedents.Caste Disabilities Removal Act was passed in 1850 during the British rule in India to protect the interests of converts. Some of the princely states had enacted certain laws meant to protect the local people against the conversion activities of the foreign missionaries.

India being a country of birthplace for many religions like Hinduism, Jainism, Buddhism, Sikhism and home for others like Jewish, Muslim and Christians. In Indian history, religion provided fully controlled legal and judicial system of the country.At present, India being a secular country does not have any particular religion of its own. Some of the SAARC nations who have officially adopted certain religion of their own.  Like, Buddhism in Bhutan and Sri Lanka, Hinduism in Nepal and Islam in Pakistan, Maldives and Bangladesh. India’s concept of secularism is different from American concept of secularism.To promote human rights and as part of its policy U.S. government discusses religious freedom with the government. Some nations have aimed to suppress religion, like Poland and Lithuania in Europe.

Indian Constitution in its preamble has included the word Secular and declared India to be a “Sovereign Socialist Secular Democratic Republic” nation.  In India, law of the land is greater than the scope of the religion. The right to freedom of religion is a fundamental right guaranteed under Article 25 of the Constitution of India. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth explained under Article 15. Article 26 speaks about freedom to manage religious affairs and Article 27 freedom as to payment of taxes for promotion of any particular religion. Article 28 explains about freedom as to attendance at religious instruction or religious worship in certain educational institutions.It is the duty of every citizen of India to promote common brotherhood amongst all the people of India surpassing religious, linguistic and regional or sectional diversities under Article 51A of fundamental duties.

State surveillance is imposed by legislative enactments on the management of particular shrines belonging to various religious communities. The Religious Institutions (Prevention of Misuse) Act of 1988 was enacted to protect the religious places, and Places of Worship (Special Provisions) Act of 1991, prohibits forcible conversion of any place of worship of any religion into a place of worship of a different religion and thus it preserves the character of place of worship.Governmental bodies like The Ministry for Minority Affairs, National Commission for Minorities (NCM) and the National Human Rights Commission (NHRC), are created to investigate allegations of religious discrimination and can make recommendations for redress to the relevant government authorities.

Article 25(1) of the Constitution guarantee the right to freely profess, practise and propagate one’s religion but it does not guarantee the right to convert. Any forcibly conversion of any person against his will is punishable under law of the nation. Although law provides remedies for violations of religious freedom however, due to elements of low police to population ratio, corruption, antiquated court system etc., law was not always enforced rigorously pertaining to religiously oriented violence in some cases. Legal protections exist to shelter discrimination by any one. Religious beliefs in its multidimensional aspect comes into direct conflict with human rights.

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Chapter 15 of the Indian Penal Code mentions about the punishments for offenses relating to religion. If any person gives hate speeches, or writings that insult the religion or religious beliefs of any regional group, caste, or community he can be punished under the country’s law and provides penalties for such speeches, or writings. In some cases punishment for such cases can be quite severe which may be up to one year in prison. It is also a crime to disturb peaceful religious gatherings. Although religious values and traditions continue to have a strong influence on Indian society, the constitutional provisions and legislative enactments of the courts in the country have interpreted laws relating to religion and religious freedoms. Judiciary in India has played a major role in adjudicating religious affairs and has solved many religious disputes between the people and the state, and other communities also. An attitude of impartiality can be seen in judicial decisions of the higher courts in various religious matters. There were many Commissions set up to look after the implementation of Article 30 of the Constitution of India.

Our country’s political system gives state government’s primary jurisdiction to deal directly with issues including abuses of religious freedom. There are many active “anti-conversion” laws that prevail in various states in the country. Anti-conversion laws largely aimed at preventing proselytising of lower castes which have aroused many controversies. Anti-conversion laws do not particularly ban conversion but just impose penalties for facilitating conversions. Many states like Madhya Pradesh, Rajasthan, and Uttar Pradesh have many public religious buildings. Although Article 17 of the constitution outlawed untouchability,in rural areas, members of lower castes remain in disadvantageous position even today. Even though under Article 25 of the constitution Buddhism, Jainism, and Sikhism are considered sects of Hinduism they have their own personal laws.They have different personal laws in matters of inheritance, adoption, marriage and divorce. All the different personal laws like Hindu law, Christian law, Parsi law, and Islamic law, are judicially enforceable in the country. Although state governments have permitted private religious schools, religious instruction in government schools has not been permitted in any state. Some Madrasahs(Islamic schools) that provide full or part-time religious education do not accept government aid. Many religious holidays such as Good Friday and Christmas, the two Eids, Lord Buddha’s Birthday, Guru Nanak’s Birthday, Dussehra, Diwali, and Holi, and the Birthday of Lord Mahavir are declared as government holidays by most of the states in the country.

In America, after their first Amendment, people enjoy two types of freedom with respect to religion, i.e. right to practice any religion and right to be free from any government imposed religion. Employees cannot be treated unfairly on the basis of religion under Federal and state law.But the terrorist attacks of 11 September 2001 can be an eye opener for those under the illusions of secular values. Religion sometimes can shoot terrorism against the state laws.

Religion is a belief held by certain people it can remain as an individual belief, not science and not law. Freedom of belief is supposed to work in two ways, like the freedom to embrace and freedom to reject a belief. The people practice their religion through various ways i.e. praying, fasting, manner of keeping or wearing one’s hair, styles of dress, following certain diets, speaking certain language and observing religious holidays.

Although religion and law are interlinked to each other law prevails over religion. Law is collective agreement and thus over powers the religion of the country. Law and religion influence each other in many ways. Abortion is immoral under many religious belief because it kills a living being and it is also banned under law in many countries. Religion has become a crucial research area in many academics like political science, law etc. Religion is a link to our past and has paved way to our values and set the stage for the present era. Both Religion and Law have helped to create identities of groups and build norms in the society in many countries of the world.

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by Sushma Javare.