VOLUME 1 ISSUE 1 2020

BURNISHED LAW JOURNAL

VAIBHAV GOYAL

BA.LLB (H) - 3RD YEAR

UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY (SSGRC,

HSP), CHD

burnishedlawjournal.law

THE CONFORMITY OF RELIGIOUS PRACTICES WITH THE CONSTITUTIONAL SCHEME

Vaibhav Goyal

PERSONAL DETAILS

NAME- VAIBHAV GOYAL

DESIGNATION- STUDENT

COURSE- BA.LLB (H) - 3RD YEAR

INSTITUTE- UNIVERSITY INSTITUTE OF LEGAL STUDIES, PANJAB UNIVERSITY

(SSGRC, HSP), CHD

TOPIC- THE CONFORMITY OF RELIGIOUS PRACTICES WITH THE

CONSTITUTIONAL SCHEME

CATEGORY- RESEARCH PAPER

RESIDENTIAL ADDRESS- HOUSE NUMBER 2909, FIRST FLOOR, SECTOR 47C,

CHANDIGARH (U.T.)

CONTACT NUMBER- 9781520216

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THE CONFORMITY OF RELIGIOUS PRACTICES WITH

THE CONSTITUTIONAL SCHEME:

ABSTRACT:

Modern law and religion are essential socio-political phenomena that have in common some

veiled elements. Both aspire to constitute, or at least to frame, human consciousness and

behaviour in all spheres of private and public life. Accordingly, modern law and religion are

complementary, contradictory and simultaneous sources of rule-making, adjudication and

execution. Both embed obedience and obligations, leadership, institutions and legal ideology

as foundations of their maintenance and prevalence, based on a strict structure of commands.

Modern law and religion are engendered through written and oral intergenerational –

sometimes transnational – texts that are enforceable through authorities, and are subjected to

authoritative, corresponding and alternative hermeneutics. Since modern law and religion are

infinitely dynamic bounded spaces of institutions, professionalism and social mobilization,

they are carriers and subjects of political power. They colonize through, and are colonized in,

political power. Hence, as we will discover below, in various contexts they may,

paradoxically, challenge, maintain and generate state political power. The distinction between

law and religion is one that does not exist in classical Hindu thought. Instead, both law and

religion are parts of the single concept known as dharma. The texts were composed by men,

and they deal with matters of concern to all. In addition to gender, the determiners of one's

status are caste (varṇa or jāti), stage of life (āśrama), age, and so forth. Every caste, age group

within that caste, and stage of life has certain generic responsibilities that must be fulfilled

(varṇāśramadharma).

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“The means by which we live have out-distanced the ends for which we live. Our scientific

power has outrun our spiritual power. We have guided missiles and misguided men.”

-Martin Luther King Jr. 1963

he integral yoga of law and religion is the genius of Indian culture which blends in

dharma the finer components of legality and spiritual valves. The Hindu sages, the

Buddhist and Jain seers as well as the Sikh saints and other socio-sociological

reformers regarded Law and Religion not as divorced from each other but as mutually inter-

acting and cross-fertilising. For that matter, the teachings of Jesus Christ and the Koranic

texts emanating from Prophet Mohammed, divinised the rules of conduct so much so the

legal and religious have a validity rooted in higher values beyond the materialist norms and

secular guidelines. The lofty perspectives lends a profound meaning to the humanism which

binds law and religion. Law holds religion in leash, generally speaking, in no country has law

succeeded in extinguishing religion. Khomeni’s Iran is an instance of religion dominating but

not defeating law. A case of October revolution put religion on the retreat, but 65 years there

are constitutional freedom to practise one’s faith. Objections to dividing academic inquiry

into disciples have been voiced, frequently because of the insular nature of these disciplines

and because of the temptation of seeing one’s discipline as a way of explaining the

whole.1The disciple of history further divides itself into economic, diplomatic, intellectual,

religious social, and legal history, among others. Modern academic investigations become

struck in their own mire when they carry the insular approach even further and think that only

“religious facts” can offer a proper explanation for “religious events”, or that only “Legal

facts” can offer a proper explanation for “Legal events”. Historians of religions have seldom

considered the study of law within the parameters of their discipline. And, legal scholars just

as seldom deal in an extended way with religious issues.2Traditional societies see life

homogeneously. That is, religion is not something that is part of life, but that which gives

meaning to all of life. Traditional India fits that model. But if that is the case, then simply

asking the relationship between religion and law is to ask question that is the result of

secularization. We must admit that the distinction between Religion and Law, between

Religion and secular didn’t always pertain. Many Indian people doesn’t even today pertain

T

1 Wilfred Cantwell Smith, “Methodology and the Study of Religions: Some Misgivings” in Methodological Issues of Religious Studies, edited by Robert D. Baird (Chico, CA, 1975).2 1 Tahir Mahmood, Religion and Law Review (No.1, Summer, 1992).

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distinction enshrined in Constitution in Legislature, and in Court decisions.3The Constitution

of India is less a consensus document that a document forged by an educated elite, strongly

influenced by the ideology of the enlightenment, and guided by influential spokespersons

such as B.R. Ambedkar and Jawaharlal Nehru. Doniger contends that while Hindus always

took Manu seriously as principle, other ancient legal texts were more widely used in legal

circles.4

MANUSMRITI:

Manusmṛti (written also as Manusmṛti or Manusmṛti), also known as Mānava-Dharmaśāstra,

is the most important and earliest metrical work of the Dharmaśāstra textual tradition of

Hinduism.5Generally known in English as the Laws of Manu, it was first translated into

English in 1794 by Sir William Jones, an English Orientalist and judge of the British

Supreme Court of Judicature in Calcutta6. The text presents itself as a discourse given by

Manu, the progenitor of mankind to a group of seers, or rishis, who beseech him to tell them

the "law of all the social classes" (1.2). Manu became the standard point of reference for all

future Dharmaśāstras that followed it7.The text shows the obvious influence of previous

Dharmasutras and Arthasastric work. In particular, the Manu Smriti was the first to adopt the

term vyavaharapadas. These eighteen Titles of Law or Grounds for Litigation make up more

than one fifth of the work and deal primarily with matters of the king, state, and judicial

procedure8.A range of historical opinion generally dates composition of the text any time

between 200 BCE and 200 CE9.Manusmṛti projects an ideal society and ideal human conduct

as the basis to establish an orderly society and divine centered life. To promote those ideals

and enforce divine will, it proposes numerous laws to minutely govern human life and

conduct as applicable to each individual according to her or his social class, duties and

responsibilities. Their purpose is to inculcate discipline, provide a basis for the rulers to

enforce lawful conduct, and ensure the orderly progression of the world through righteous

conduct and observation of obligatory duties by individuals who have chosen for themselves

3 Religion and the Secular: Categories for Religious Conflict and Religious Change in independent India” and “Uniform Civil Code and the Secularization of Law”, in Robert D. Baird, Essays in the History of Religion (New York, 1991).4 The Laws of Manu, translated by Wendy Doniger, pp.xxxix-xl of the ‘Introduction’, (London, Penguin Books, 1991).5 Flood 1996: 56 and Olivelle 2005.6 Jones's translation is available online as The Institutes of Hindu Law: Or, The Ordinances of Manu, Calcutta: Sewell & Debrett, 1796.7 Olivelle, "Literary History," p. 16.8 Ibid, p.17.9 For composition between 200 BCE and 200 CE see: Avari, p. 142.

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the life of a householder, or that of a renunciant. The power to enforce the laws is carefully

distributed among the rulers and the guardians of society who assist him in decision making.

Manusmṛti recognizes the corrupting and deluding influence of power over the mind and

cautions the kings to exercise their judgment with great care to avoid sinful karma and

harmful consequences for themselves and for the world.10

DESCRIPTION OF TERRITORY OF BHARAT:

Manu Smriti describes Ancient India (Bharat) as in following verses.

Chapter 2 ‘verse’ 17 states:

“That land, created by the gods, which lies between the two divine rivers Sarasvati and

Drishadvati, the (sages) call Brahmavarta.”11

Chapter 2 ‘verse’ 19 states:

“The plain of the Kurus, the (country of the) Matsyas, Pankalas, and Surasenakas, these

(form), indeed, the country of the Brahmarshis (Brahmanical sages, which ranks)

immediately after Brahmavarta.”12

Chapter 2 ‘verse’ 21 states:

“That (country) which (lies) between the Himavat and the Vindhya (mountains) to the east of

Prayaga and to the west of Vinasana (the place where the river Sarasvati disappears) is

called Madhyadesa (the central region).”

Chapter 2 ‘verse’ 22 states:

“But (the tract) between those two mountains (just mentioned), which (extends) as far as the

eastern and the western oceans, the wise call Aryavarta (the country of the Aryans).”13

Chapter 2 ‘verse’ 23 states:

“That land where the black antelope naturally roams, one must know to be fit for the

performance of sacrifices; (the tract) different from that (is) the country of the Mlekkhas

(barbarians).”14

10 Available at http://www.hinduwebsite.com/sacredscripts/hinduism/dharma/manusmriti.asp.11 Available at http://www.sacred-texts.com/hin/manu/manu02.htm.12 Ibid.13 Ibid.14 Ibid.

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Mahatma Gandhi express the view that:-

“India is essentially Karmabhumi (Land of Duty) in contradistinction to Bhogabhumi (Land

of Enjoyment).”

CONTENTS OF MANUSMRITI:

1. DIVINE SANCTION:

The contents of a text like Manusmriti, are of divine origin. They were not arrived at

through social experience nor through spirited discussion, but were regulated through

spiritual insight. To violate them is to go against the nature of the things and thereby

come to ruins. Manusmriti reveals the origin of Religion, of the Universe, as well as

the origin of the classes and the duties that pertain to each15.

2. JUSTICE:

Justice is served when every person or group does his or her duty and is treated

appropriately in the light of the way the universe inherently is. Manu’s universe

speaks about duties rather that rights.

3. INEQUALITY:

Justice, the, is based on sets of duties that are based not on equal rights but on unequal

ability and nature. For example, it is unjust to expect Shudras, whose very nature is to

serve the higher class, to lead a nation into battle. Each person’s duty is matched with

his or her creative nature and, even if occasionally an individual might struggle with

the obligation to act according to inherent nature, as the Bhagavad-Gita puts it:

“Better one’s own duty, (tho) imperfect,

Than another’s duty well performed,

Better death in (doing) one’s own duty;

Another’s duty bring danger,”16

In the implementation of justice, Manusmriti emphasizes the importance of honesty in

testimony and the trustworthiness of witness. Perjury has its penalty, but as in other

cases the penalty is determined by where you stand in the class hierarchy. Example, a

15 Supra f.n. 4 at pp. xxii.16 The Bhagavad Gita, translated by Franklin Edgerton 3.35 (Cambridge, Harvard University Press, 1944).

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ruler (Kshatriya) who shouts abuse at a priest (Brahman) should be fined a hundred

(pennies); a commoner (Vaishya) (who does this), a hundred and fifty or two hundred

(pennies); a servant (shudra) be given corporeal punishment.

4. KARMA AND REBIRTH:

Punishment is often for actions performed not only in the present life, but previous

lives. And one should understand that justice that is unfulfilled will eventually be

fulfilled in some future life. For example, while it is legitimate to kill animals for

sacrificial purposes, some passages warn against killing for non-religious purposes. A

woman who is unfaithful to her husband is an object of reproach in this world, (then)

she is reborn in the womb of a jackal, and is tormented by the disease born of her

evil.17

INDEPENDENT INDIA:

The Constitution of India stated its intent to be a secular state. Indian Muslims today

constitute the second largest body of Muslims in the world, second only to Indonesia. As

Manusmriti, the Constitution seeks the implementation of Justice. It makes special provisions

for those who were the object of the past discrimination. Example Article 17 abolishes

untouchability and Article 16(4) provides for the reservation for the backward classes. The

doctrines of Karma and rebirth are not denied, nor are they affirmed. As the Manusmriti dealt

with dharma or duty, the Constitution also has a section on “Fundamental Rights and Duties”.

The Constitution of India provides considerable scope for freedom of religious belief and

practise. But that freedom is not unlimited. Handling the religious conflict, the Constitution

defines two categories, i.e., religion and secular. Religion granted freedom. But over against

religion is the secular for which the same degree is not provided.

LEGISLATION BY PARLIAMENT:

During the years 1955-56, Parliament passed a number of laws that are referred to as the

“Hindu Code Bill”. The religious sanction of personal law which is found in Manusmriti

continues into the modern period. Differences were the result of religious differences to be

sure, but were also impacted by local traditions and practices. Hindu law was not unified

either. The Dayabhaga School was dominant in Bengal and Assam, and the Mitakshra

School, along with its four subdivisions, prevailed throughout the rest of India.

17 Supra f.n. 2 at 5.164.

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The Supreme Court of India acknowledged that defining religion would be difficult if not

impossible. In case of Commissioner, Hindu Religious Endowments, Madras v. Sirur

Mutt18, Court defines ‘Religion’ as:-

“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 regarded as

integral parts of religion, and these forms and observances might extend even to matters of

food and dress.”

In this case , it was also held that the determination of what rituals were necessary in a temple

was a ‘religious’ matter, but that the scale of expenses for the rituals was a ‘secular’ matter

and could legitimately exist under the government control.

SECULARISM:

The Concise Oxford Dictionary shows that the adjective ‘secular’ means:

“Concerned with the affairs of this world, worldly not sacred, not monastic, not

ecclesiastical, temporal, profane, lay.”

The Encyclopaedia Britannica defines ‘secular’ as:

“Non-spiritual, having no concern with religion or spiritual matters.”

Mr.K.T.Shah in order to show the secular nature of the Constitution of India proposed two

ideas for it. First one is by adding Article 1 to the Draft Constitution which states that India

shall be secular, federal, socialist and union of states. Secondly by adding words that The

State of India being secular shall have no concern with any religion, creed or profession or

faith. During the Emergency imposed by the Government of Mrs Indira Gandhi, the Preamble

of the Indian Constitution was amended by the Constitution (42nd Amendment) Act, 1976 so

as to include the word ‘secular’ before the words “Democratic Republic”. It is necessary to

recognise the profound wisdom of the ancient seers of India that though truth is one it has

different facets and the human mind imperfect as it is, perceives only some facets and is

unable to see the entire truth.

Mahatma Gandhi, the Father of Nation, expressed:-

“Even as a tree has a single, trunk, but many branches and leaves, so there is one true and

perfect religion, but it becomes many, as it passes through the human medium. I recognise no 18 XXVI The Supreme Court Journal (hereafter S.C.J.) p.348-49, 1954.

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god except the god that is to be found in the hearts of the dumb millions. They do not

recognise his presence; I do. And I worship the god that is the Truth, or truth which is god,

through the services of these Millions.”

The Hindu religion which is the religion followed by the large majority of people in India,

doesn’t claim monopoly of spiritual wisdom nor does it assert that the path shown by the

Hindu religion is the only path can lead to divinity.

Dr.Radhakrishna says,

“Hinduism is a movement , not a position , a process , not a result; a growing tradition, not a

fixed revelation…..We can’t have religious unity and peace so long as we assert that we are

in possession of light and all others are groping in darkness. That very assertion is a

challenge to a fight.”

The Constitutional makers, therefore, placed the individual at the centre of the Constitutional

scheme and made his dignity, freedom and well-being its major concern. The Preamble of the

Constitutional exercise, freedom and dignity of the individual, social, economic and political

justice and equality of status and opportunity for all, regardless of caste, creed or religion.

Socio-economic justice as elaborated in the Fundamental Rights and Directive Principles of

State Policy was laid down as the beacon-light or the guiding star of the new social order

envisaged in the Constitution and the foundations of a secular state were laid firm and deep.

The framers of India’s Constitution shared with the America’s the basic ideology that the

state shouldn’t interfere with matters which fall essentially within the domain of religion nor

should promote it.

Rabindranath Tagore described ‘secularism’ as:-

“Where the mind is without fear and the head is held high,

Where knowledge is free,

Where the world has not been broken up into the framers by narrow domestic walls;

Where words come out from the depth of Truth;

Where tireless striving stretches its arms towards perfection;

Where the clear stream of reason has not lost its way into the dreary desert sand of habit;

Where the mind is led forward by thee into ever-widening thought and action;

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Into that heaven of freedom, my Father, let my country awake.”

CONSTITUTION AND TRADITIONAL PRESUPPOSITION:

The Constitution, basing itself on British and American models, resolves to secure equality

for all its citizens as well as granting each religion freedom to practice according to its own

belief.19 A clash occurs because traditional Hindu practise presupposes Karma and Guna

theory according to which people are seen to be fundamentally, but not unfairly, unequal. The

epic poems, the Bhagavad-Gita and the Ramayana continue this theme of individual moral

responsibility as constituent of one’s human nature. This ideology is reflected by article 14,

15, 25 and 44 of the Constitution which says that:

“14. Equality before law: The State shall not deny to any person equality before the law or

the equal protection of the laws within the territory of India Prohibition of discrimination on

grounds of religion, race, caste, sex or place of birth.”20

“15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of

birth.”21

“25. Freedom of conscience and free profession, practice and propagation of religion.”22

“44. Uniform civil code for the citizens The State shall endeavour to secure for the citizens a

uniform civil code throughout the territory of India.”23

The legal identity and their ancient practises are still reflected by cases. For example the

cases like the Shah Bano case, the Babri Masjid-Ranjamabhoomi controversy, etc. deals with

it. By 1947, the only elements of Shariah recognised by the courts involved questions of

Marriage and inheritance (Personal Laws). During the British raj most of the judges charged

with the application of Muslim law were not Muslims. The few who were Muslims were

trained in the same law schools as their Hindu and British colleagues. None of the prominent

Muslim jurist of the imperial age came from families which maintained as tradition of

learning Shariah24. Today comparatively fewer Muslims sit in the bench in India-a reflection,

perhaps, of the ‘brain-drain’ to Pakistan, but those who do seem to come exclusively from the

ranks of the ‘modern-trained’ rather than the madrasah educated.

19 Durga Das Basu, Constitutional Law of India, articles 14 and 25 (New Delhi, 1978).20 Available at https://indiankanoon.org/doc/367586/.21 Available at https://indiankanoon.org/doc/609295/.22 Available at https://indiankanoon.org/doc/631708/.23 Available at https://indiankanoon.org/doc/1406604/.24 Indian Judges (Madras, 1932).

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ISLAM AND INDIAN PUBLIC LAW:

According to Islamic juristic classification of nations a particular country can be dar al-Islam

(one which owes allegiance to Islam), dar al-harb (one hostile to Islam) or dar al-amn (one

at peace with Islam).Constitutionally, India does not and can’t owe allegiance to any religion,

but is at the same time not hostile to either religion in general or any particular religious

faith25. The five basic precepts in Islam-called arkan-i-khamsa are:

1. Shahada(affirmation of faith)

2. Salat(prayers)

3. Zakat(Islamic Tax)

4. Siyam(fasting)

5. Haj(pilgrimage to Mecca)

The Indian Constitution in relation to religious freedom, while the first of these falls in the

realm of beliefs, the remaining four represent practise of Religion. Recent disruptions of

Friday prayers in Gurugram have escalated to a nationwide row, and Muslim groups and

leaders have argued that nobody is addressing the moot problem — there are limited spaces

for Muslims to offer namaz26.In the wake of incidents of alleged disruptions to namaz by

right-wing groups at multiple locations in Gurugram recently, Haryana Chief Minister

Manohar Lal Khattar on Sunday said such congregations should be restricted to mosques,

eidgahs or private places, even as he asserted the government will ensure that law and order

is maintained27.Earlier Khattar had created a controversy over his comments on beef when he

had said, "Muslims can continue to live in this country but they will have to give up eating

beef. They can be Muslim even after they stop eating beef, can’t they? It is written nowhere 25 Reference to articles of Indian Constitution stated as in “14. Equality before law The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth” ; “15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”; “16. Equality of opportunity in matters of public employment”; “25. Freedom of conscience and free profession, practice and propagation of religion”; “26. Freedom to manage religious affairs Subject to public order, morality and health, every religious denomination or any section thereof shall have the right” ; “27. Freedom as to payment of taxes for promotion of any particular religion No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religions denomination” ; “29. Protection of interests of minorities”; “30. Right of minorities to establish and administer educational institutions”.26 Available at https://theprint.in/governance/govt-should-provide-places-for-namaz-if-it-doesnt-want-us-to-pray-on-roads-muslim-group/56073/.27 Available at http://www.dailypioneer.com/state-editions/chandigarh/namaz-should-be-read-in-mosques-not-public-spaces-haryana-cm.html.

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that Muslims have to eat beef, not is it written anywhere in Christianity that they have to eat

beef”28. In compliance with a 2012 interim order of a Muslim judge, Justice Aftab Alam, the

Narendra Modi government has now decided to scrap the so-called Haj subsidy. The move

has been rightly welcomed by one and all. Justice Alam undertook this exercise by quoting

the Quran, which mandates Muslims to undertake the pilgrimage if they can afford it in terms

of conveyance, provision and residence. Justice Katju observed that Article 27 would be

affected only if a substantial part of the entire income tax collected or a major portion of the

entire central excise or the customs duties or sales tax or a substantial part of any other tax

were to be used for the promotion of any particular religion29. “Muslims didn’t benefit from

it. Development with dignity is what we believe in. The subsidy will be used for educating

girls,” said Minority Affairs Minister Mukhtar Abbas Naqvi. In its 2012 order, the court

said,” this is on account of increase both in number of pilgrims and the travel cost/air fare. In

the year 1994, the number of pilgrims going for Hajj from India was as low as 21,035. In

2011 it was 12, 5000. In the year 1994 the cost of travel per pilgrim was only Rs 17,000. In

2011 it went up to 54,800. As a result the total Hajj subsidy that was Rs 10.51 crore in the

year 1994 swelled up to Rs 685 crore in 2011.”30

SPENDING ON RELIGION:

Under Article 290A, the state of Kerala provides Rs 46.5 lakh annually to the Travancore

Devaswom Fund and Tamil Nadu gives Rs 13.5 lakh to the Devaswom fund for the

“maintenance of Hindu temples” out of the consolidated fund. The Indian government spent

Rs ten crore in developing infrastructure on the Amaranath yatra route. In the 2017-18

budget, the BJP government in Rajasthan allocated Rs 38.91 crore for the Devasthan

Department, of which Rs 16 crore is for the pilgrimage of senior citizens. The Madhya

Pradesh government sponsors senior citizens’ trips to Ajmer and other religious sites.

Muslims also get financial support from the state: salary packages are given to Muslim

imams of Gujarat. In West Bengal too, imams are on the state’s pay roll. In Karnataka, huge

budgetary allocations are made to churches: it was Rs 16.56 crore in 2015-16. Out of some

4,000 madrasas in Bihar, as many as 1,127 are run by the state government. The Adityanath

government, too, has allocated Rs 394 crore for madrasas and Rs 800 crore for the pilgrimage

28 Available at http://www.newindianexpress.com/nation/2018/may/06/after-namaz-disruptions-in-gurugram-haryana-cm-khattar-says-namaz-should-be-offered-only-inside-mos-1811008.html.29 Available at https://thewire.in/politics/haj-subsidy-government-spending-on-religion.30 Available at https://www.financialexpress.com/india-news/narendra-modi-government-ends-haj-subsidy-for-muslims-says-wont-affect-cost-of-travel-to-mecca/1017463/.

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to Kashi, Ayodhya and Mathura under the Pilgrimage Rejuvenation and Spirituality

Augmentation Drive. The UP government will also now pay Rs 1 lakh to each pilgrim of the

Kailash Mansarovar Yatra31.

SIKHISM AND THE LAW:

Guru Nanak, founder of Sikhism, established an original and distinct monotheistic religion.

He denounced ritualism, asceticism and caste system prevalent in the existing religions.

Guru Arjan Dev, fifth Nanak, who made Sikhism a complete religion. Law recognized

Sikhism as a separate religion when Emperor Jahangir ordered execution of Guru Arjan Dev.

Sikhs are known for truthfully abiding by the laws of the land in which they reside.

According to the Sikh legal system, a legislature has been passed regarding the payment of

taxes. The system opposes the Jaiziya system in which Sikhs and non-Sikhs are taxed

differently. As opposed to the legal system of India where the nonSikhs pay to achieve

protection, the Sikh legal system recognized that every citizen’s protection is fundamental

and should be granted. The Sikhs legal system affords equality even in the taxation system.

The Sikhs were listed as a separate community in the census for the first time in 1868. The

census reports of India since then list Sikhism as an independent faith. The Government of

India Act 1919, passed by the British Parliament, conceded separate electoral rights to the

Sikhs in the Legislature. Shiromani Gurdwara Parbandhak Committee got itself

registered under the Societies Registration Act on April 30 1921. The rise of an extremist

Sikh movement led by the charismatic preacher Sant Jarnail Singh Bhindranwale attracted

much support from within the Sikh community, and resulted in calls for an independent state

of Khalistan to protect the rights and identity of the Sikhs. This movement took a violent turn

and eventually led to the controversial ‘Operation Bluestar' of June 1984, which saw the

Indian army storm the Golden Temple, holiest of Sikh shrines, to flush out suspected

terrorists sheltering in the premises. The army action caused great resentment among Sikhs

generally at what was seen as the defilement of Sikh holy places and an insult to the entire

community on the part of the Indian state. The ultimate act in this political tragedy was the

assassination of Indira Gandhi in October 1984 by two of her Sikh bodyguards.

THE ANAND MARRIAGE ACT:

Tikka Ripudaman Singh, member of the Imperial Legislative Council, introduced the Bill

after convincing the British authorities about its necessity. Louis Dane, Lt. Governor of the

31 Supra f.n. 29.

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Punjab confirmed the levelling of allegation by Arya Samajis against Anand marriage

ceremony of the Sikhs after making the necessary inquiries. The Anand Marriage Act was

passed to remove the doubts as to the validity of the Anand marriage ceremony which had

become quite common amongst the Sikhs. Besides removing the doubts about the

authenticity and legality of Anand marriages and making inter-caste marriages and widow

remarriages possible, the Anand Marriage Act contributed to the recognition of Sikhism as an

independent and distinct religion with its own customs, traditions and ceremonies. Thus the

Anand Marriage Act constituted a distinct break with Hinduism. It is not a comprehensive

law relating to Sikh marriages and dealt with the ceremonial or solemnization aspect. After

amendment of this Act in 2012, Sikh marriages solemnized through Anand can be registered

under this Act. Besides it, the Sikh marriages continue to be governed by the Hindu Marriage

Act1955.

EXEMPTIONS:

Explanation I to Article 25 of the Constitution reads as:

“The wearing and carrying of Kirpans shall be deemed to be included in the profession of

the Sikh religion.”

Explanation II also strikes at the independent status of Sikhism by presenting it as a

subsidiary of Hinduism. Its reading gives the wrong impression as regards the distinct and

separate identity of Sikhism. Its reading may lead to assume that Sikhism is a part, subsidiary,

branch or an off-shoot of Hinduism which is factually incorrect. It may be mentioned along

with that the Supreme Court of India32 has held that wearing of Karra by a Sikh is an integral

principle of Sikh religion. Religious Institutions (Prevention of Misuse) Act 1988 shall not

apply to the wearing and carrying of a Kirpan by any person professing Sikh religion.

Sikhism and its peculiar symbols like Kirpan, hair, turban have been recognized by the

legislatures and Governments of different countries in the world. The British Parliament

passed the Motor-Cycle Crash-Helmets (Religious Exemption) Act 1976 exclusively for the

Sikhs. It is “An Act to exempt turban-wearing followers of the Sikh religion from the

requirement to wear a crash-helmet when riding a motor-cycle.”33In India, Section 129 of

Motor Vehicles Act, 1988 (C.A.59 of 1988) provides this exemption.

SATI:

32 AIR 1997 SC 2560.33 Preamble of the Act.

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Sati, also spelled as Suttee, is a practice among Hindu communities where a recently

widowed woman, either voluntarily or by force, immolates herself on her deceased husband's

pyre. The woman who immolates herself is, hence, called a Sati which is also interpreted as a

'chaste woman' or a 'good and devoted wife'. There have been many instances of how the

widows were shunned in India and therefore, the only solution for a life without husband was

to practice Sati as it was considered to be the highest expression of wifely devotion to a dead

husband. Sati, or Suttee, is derived from the name of the goddess Sati, who immolated herself

because she was unable to bear her father Daksha's humiliation towards her husband Shiva. In

the 16th century, Humayun was the first to try a royal agreement against the practice. Akbar

was next to issue official orders prohibiting Sati and since then it was done voluntarily by

women. The Portuguese banned the practice in Goa by 1515. The Bengal Sati Regulation

which banned the Sati practice in all jurisdictions of British India was passed on December 4,

1829 by the then Governor-General Lord William Bentinck. The regulation described the

practice of Sati as revolting to the feelings of human nature.34

DEVDASI SYSTEM:

Devadasi system is a religious practice in parts of southern India, including Andhra Pradesh,

whereby parents marry a daughter to a deity or a temple. The marriage usually occurs before

the girl reaches puberty and requires the girl to become a prostitute for upper-caste

community members. Such girls are known as jogini. They are forbidden to enter into a real

marriage. The Devadasi system was set up, according to a Times of India report (10-11-1987)

as a result of a conspiracy between the feudal class and the priests (Brahmins). The latter,

with their ideological and religious hold over the peasants and craftsmen, devised a means

that gave prostitution their religious sanction. Poor, low-caste girls, initially sold at private

auctions, were later dedicated to the temples. They were then initiated into prostitution.35 The

Madras Devadasis (Prevention of Dedication) Act (also called the Tamil Nadu Devadasis

(Prevention of Dedication) Act or the Madras Devadasi Act) is a law that was enacted on 9

October 1947 just after India became independent from British rule36.The Madras Devadasi

Act is one of several laws passed in the presidencies and provinces of British India and the

subsequent states and territories of India that made prostitution illegal, including the 1934

34 Available at https://www.indiatoday.in/education-today/gk-current-affairs/story/sati-pratha-275586-2015-12-04.35 Available at http://iml.jou.ufl.edu/projects/Spring02/Chattaraj/genesis.html.36 B. S. Chandrababu & L. Thilagavathi “Woman, Her History and Her Struggle for Emancipation” p.264, (Bharathi Puthakalayam,2002)

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Bombay Devadasi Protection Act, the 1957 Bombay Protection (Extension) Act, and the

1988 Andhra Pradesh Devadasi (Prohibition of Dedication) Act37.

PARSI WOMAN CASE:

In a landmark decision by the Supreme Court, a Parsi woman, who was barred from entering

fire temples and Towers of Silence after marrying outside the community, was today granted

the right to enter a Parsi temple in Gujarat. The woman, Goolrukh Gupta, had approached the

Apex Court challenging an Ahmedabad High Court order. The five-judge Constitution bench

of the apex court, headed by Chief Justice of India Dipak Misra was hearing the case.

According to reports, In 2012, the Gujarat High Court said that under the Special Marriage

Act, she had ceased to be a Parsi and that her religion automatically changed to that of her

husband. She, however, continued to practice as a Parsi and has challenged the High Court

verdict on the grounds that the Special Marriage Act does not require either husband or wife

to renounce their religion.38

The policy of law making in the field of Personal Law followed by the Rulers in the time of

the British Raj which is also continued to some extent by the present Government of India is

to leave them alone. Government will not and should not enact Statutes concerning Personal

Law of any religious community unless and until there is a demand for such law made by and

coming from within the community concerned. For example, the Parsis had demanded a

Matrimonial Act over a hundred years ago in 1865. There is need for amendment of the

present Act. But unless the Parsi community unitedly makes the demand for amendment and

puts pressure through the Minorities Commission and other channels, Government should not

take it into its own hands to forcibly thrust some Statute like an U.C.C down their throats.

Similarly unless the demand for law reform comes from within the religious traditions of the

various religious communities in India it would be inadvisable and unwise jurisprudentially

for the Government of India to enact an U. C. C. which would wipe out all the Personal Laws

existing in India.

37 Promoting Women's Rights As Human Rights p.97, (United Nations. 1999).38 Available at http://www.freepressjournal.in/india/parsi-woman-married-outside-community-can-enter-fire-temple-says-supreme-court/1186920.

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“Human rights, of course, must include the right to religious freedom, understood as the

expression of a dimension that is at once individual and communitarian - a vision that brings

out the unity of the person while clearly distinguishing between the dimension of the citizen

and that of the believer.”

-Pope Benedict XVI

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