THE NATIONAL LAW INSTITUTE

UNIVERSITY, BHOPAL

RELIGION: LAW AND SECULARISM

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 Table of Contents
Certificate .............................................................................................................................................. 3
Acknowledgement ............................................................................................................................... 4
Statement of Problem ......................................................................................................................... 5

Objectives .............................................................................................................................................. 6

Hypothesis ............................................................................................................................................ 7
Method of Study .................................................................................................................................. 7
Review of Literature ........................................................................................................................... 8
Chapter-I: Religion: Introduction and Meaning ............................................................................... 9
Chapter-II: Origin and Sociology of Religion..........................................................................11

Chapter-III: Religion and its impact on the Indian society with reference to the Indian
Constitution..............................................................................................................................19

Chapter-IV: Different Religions across India and how they affect the conduct of citizens.....23

Chapter-V: Conflict between Secularism and Personal Laws................................................. 27

Conclusion................................................................................................................................31

Bibliography.............................................................................................................................32

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 CERTIFICATION
This is to certify that the research paper titled “Religion: Law and Secularism”, has been
prepared and submitted by Shruti Mishra, Diksha Bhatt, Aman Vijay Singh, Gandharv
Makhija who are currently pursuing her B.A. LL.B(Hons.) at National Law Institute
University, Bhopal in fulfilment of the Sociology-II course. It is also certified that this is their
original research report and this paper has not been submitted to any other University, nor
published in any journal.

Date: -

Signature of the Student :……………………………...

Signature of the Research Supervisor :…………………………………

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 ACKNOWLEDGEMENT

This paper has been made possible by the unconditional support of any people. We would
like to acknowledge and extend our heartfelt gratitude to Asst. Prof. (Dr.) Bir Pal Singh for
guiding us throughout the development of this paper into a coherent whole by providing
helpful insights and sharing his brilliant expertise. We would also like to thank the officials of
Gyan Mandir, NLIU for helping us to find the appropriate research material for this study.
We are deeply indebted to our parents,seniors and friends for all the moral support and
encouragement.

All Researchers.

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 STATEMENT OF PROBLEM

Religion has taken such a shape in the contemporary world that other than binding the
people in a framework that keeps them aware of their own being, it now also wields such
portentous influence that it has seeped into the way people think, react and consequently
come to conclusions. This project aims to study the developments that made Religion so
inextricable from law making.

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 OBJECTIVES

1. To understand the notion of religion and its nature.

2. To study the impact of religion on the Indian Society with reference to the Indian
Constitution
3. To understand secularism and dwell into its nature, gaining a basic understanding
of its
aspects and relevance in the Indian context.
4. To study and find out the extent to which the law has been successful in waving off
the
threats posed by the various religions in India and changes if, be brought.
5. To analyse the nexus between religion, secularism and the Indian Personal laws

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 HYPOTHESIS

Religion is deeply rooted in law, which is good sometimes as we stay true to our upbringing
and how our society works but in the case of law, it also proves to be disadvantageous. Often,
law makers’ cannot enact essential laws because of the fear of public outrage. Religion
develops from law but does it also override the basic principles of justice and law making is
something to be considered.

METHOD OF STUDY

The research done for this project is based on doctrinal method i.e. secondary data and
information.

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 REVIEW OF LITERATURE

1. Foundations of Sociology by Sarat C Joshi: Akansha Publishing (2006)

This book provides its readers with concise explanation of the concepts of various
sociological theories of religion

2. Foundations of Sociology by Jagdish Chandra: Mohit Publications (2011)

Religion and its certain important theories of origin given by main sociologists have
been explained in a brief and easily understandable manner, making it convenient and
comprehensible to analyse the same.

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 CHAPTER- 1: RELIGION: INTRODUCTION AND MEANING

A scrutiny of the historical backdrop of humanity will uncover the urgent job played by
religion. Religion always existed in every society, from the most primitive to the most
modern.1 Religion isn't just widespread, however additionally it is fundamental. It is also the
defining characteristic of man different from the animal world. The study of man can't be
finished except if it incorporates the investigation of his religion, for it is an extremely
essential and remarkable component of human life. The religious confidence furthermore is
an integral part of his nature and life. The very occurrence of religion because of its diversity
and variety of practices and faith leads to various ways of defining religion.

For some individuals, religion is a sorted-out arrangement of convictions, functions, practices

and worship that focuses on Supernatural Reality or Deity. For a few others, religion includes
various divine beings or gods. A few people have a religion in which no God is included.
There are additionally individuals who practice their own religious convictions in their very
own way. In any case, by and large individuals who pursue some religion have faith in a
celestial power, which they believe is the reason of the existence of this world and humanity.
In the World Conference on Religion held in Cochin in 1981, the delegates could not come to
a consensus on a concrete definition of religion, except that religion is “first and foremost
what truly religious people say and do and are.”2

Etymologically, religion is derived from the Latin word “religio”, which itself is derived
from either the root leg-, which means ‘to gather, count or observe’, or from the root lig-
which means ‘to bind’.3 In the previous sense, the suggestion is confidence in, and perception
of, indications of Divine Communication. In the last sense, the suggestion is the execution of
important actions which may tie together man and heavenly powers. Thus, It is very difficult
to define or describe religion, because it is a growing, dynamic thing, personal and broad in
scope.

1
Joseph Gaer: What the Great Religions Believe, Dodd, Mead &Co, New York,
1963, pg.16
2
Albert Nambiaparampil(Ed.): Religions and Man- World Conference of Religions,
Chavara Cultural Centre, Cochln, 1981, p.131
3
Sarat C. Joshi , Fundamentals of Sociology, 2006

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It can openly be admitted that in defining religion, most of the Indian thinkers follow the
definition given by the western thinkers. Some of the famous and major definitions of
religion are as follows:

Emile Durkheim said, “Religion is a unified system of beliefs and practices relative to sacred
things, that is to say, things set apart and forbidden -- beliefs and practices which unite into
one single moral community called a Church all those who adhere to them."4

According to E.B. Tylor, Religion is a "Belief in spiritual things"5

James Livingston defined it as "Religion is that system of activities and beliefs directed
toward that which is perceived to be of sacred value and transforming power."6

"...a set of symbolic forms and acts that relate man to the ultimate conditions of his
existence.” is a definition as given by Robert Bellah.

Some also define religion negatively. For example, according to Karl Marx,” Religion is the
sigh of the oppressed creature... a protest against real suffering... it is the opium of the
people... the illusory sun which revolves around man for as long as he does not evolve around
himself."

Sigmund Freud said that "Religion is comparable to childhood neurosis."

Because of the complexity of religion, no definition can be absolutely satisfactory. However,
a general way to define religion could be as the appropriate and serene association with
oneself, with others, with the whole universe and with the Divine.

4
Emile Durkheim, The Elementary Forms of the Religious Life, 1912
5
E.B. Tylor, Primitive Culture, 1871
6
James Livingston, Anatomy of the Sacred, 1989

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 CHAPTER-II: ORIGIN AND SOCIOLOGY OF RELIGION

The subject of religion has been the domain of a special branch of the sociological discipline
since the 1960s.
There are diverse hypotheses with regards to the starting point of the idea of religion. All of
them contain some truth elements. However, it can't be surely said that when and how
religious thoughts rose in man. It is likewise surely can't be said that what is the beginning of
the thoughts of religion. All these are because there is no consensus among the masterminds
of this field as to the origin of religion. In any case, there are individuals who solidly trust
that religious thoughts are instinctual in man. No different creatures with the exception of
man bear this instinctual characteristic. Man can be recognized from different creatures due
to: reason and religion. Man has reason while different creatures don't and that is the reason
men are called “rational animals”. Correspondingly, men are religious while different
creatures are most certainly not. If these theories can help us trace the origin and development
of religion from its beginnings to its present forms, we can understand the importance of
religion in human life.

ANTHROPOLOGICAL THEORIES OF RELIGION

Anthropology is man's science, which deals especially with mankind's beginnings,
development, customs and beliefs. Anthropological theories of religion examined the content
of different conceptions of the supernatural at different times in different societies. A few of
the important theories are discussed below.

(i) Animism
Animism means the belief in spirits. It refers to a given form of religion in which man finds
the presence of spirit in every object that surrounds him. This is said to be the principal
hypothesis on the origin of religions and is in view of the investigation of the psyche and
behaviour of the early man. It was developed by Edward Burnett Tylor in his book,
‘Primitive Culture’ and he is, thus, said to be the founder of the human sciences of Religion.
According to Tylor, religion began when individuals endeavoured to comprehend conditions
and occasions that couldn't be clarified by every day experiences. Primitive Man had various
experiences especially related with death, dreaming and daze. In his dreams, he imagined that
his body stayed in one place and his self-meandered about and did different things. Likewise,

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in his dreams, he saw other people who shouldn’t have been there. While he was awake, he
saw his reflections in water and wasn’t able to detach himself from his soul. The primitive
man must have deduced that there are two souls in a human being; a free soul which could go
out of him and have experiences, and a body soul which if it left the body resulted it its death.
They are intimately related to each other. When the soul permanently leaves the body, the
human being dies. The Latin word for soul is anima and the theory coined from this belief is
called 'animism'.

Primitive man thought that after death, soul converts into spirits who either help or harm
human beings and other creatures, and in order to keep these spirits happy, man started
offering prayers and sacrifices. He couldn’t distinguish between living and non-living and
believed that life and soul must be attached to every object. Thus, he started worshipping
rocks, trees, streams, etc. everything around him and extended the notion of soul and spirit to
all of them. Therefore, Tylor argued that Animism originated to satisfy man’s thirst to find
out the reason of death, dreams and vision. It is a simple type of religion and that they had
some unmistakable thought regarding the spirit as an immaterial soul, which could exist even
after the crumbling of the body. This is undoubtedly key to any religion of modem times and
along these lines, animism could be considered as a type of religion.

(ii) Animatism and Manaism

There is another hypothesis in regards to the beginning of religion. It consists mainly in the
belief that everything has life and is animate. The primitives saw the supernatural as a domain
of impersonal power or force. It influenced them under certain conditions, and they believed
that they could control it. This view of the supernatural is called animatism.7
Recently, a special form of animatism was developed by Marett, known as manaism. He
supposed that the primitive man believed in an all-pervasive force that exits in all the objects,
whether animate or inanimate, of this world. Be it people, animals, plants or articles, this
supernatural, invisible power manifested itself in everything in varying intensity and operated
in ways not comprehensible to man. This was called mana by Marett. It is like our idea of
good fortune or luck. Individuals credited accomplishment to the possession of mana which
people could get in distinctive ways and they trusted that rulers and nobles had more mana
than normal individuals. According to this hypothesis, contact between the rulers and the
ordinary people was risky in light of the fact that mana could work in like an electric shock.

7
Conrad Phillip Kottak, op.cit., p.414

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Common individuals couldn't bear as much holy mana as majestic beings, and thus there
emerged rituals to cleanse the exposed people out of need.

(iii) Naturism
It means the belief that forces of nature have supernatural powers. It was strongly advocated
by a great Sanskrit scholar, Max Muller. He said that the earliest form of religion must have
been the worship of objects of nature.
At the very beginning of the human race on earth, people were completely unaware of the
various events that took place around them in nature. They were curious to know the events,
however, and therefore applied their own efforts. They had to deal with the various natural
disasters such as storms, floods, lightning, dangerous animals, famine, etc. And they couldn't
surmount these situations. As a result, they had to imagine an invisible power, which they
depended on for help, strength and relief. They began to believe in some power inherent in
the sun, thunder, tension, etc. Fear and curiosity are therefore the main factors responsible for
the emergence of religious tendencies in ancient people. They also believed that this unseen
and invisible power would be helpful in their birth, sorrow, old age and finally in obtaining
salvation. They sometimes conceived God as their object of love. There are different forms
such as, father, friend, lover, beloved, master through which they tried to attain relation with
God. Thus, in order to meet their ignorance and to get strength and courage to face natural
calamities, men time and again depended on an imaginary existence, the result of which is
named “God” in religion.

SOCIOLOGICAL THEORIES OF RELIGION

Sociological theories of religion help us to analyse the relationship between society and
religion and give us insights into the role that religion plays in people's lives. Sociological
approach is mainly influenced by three sociological theorists Marx, Durkheim and Weber.
(i) Emile Durkheim
Durkheim set out to complete two things, build up the way that religion was not
supernaturally or powerfully enlivened and was in truth a result of society, and he looked to
recognize the regular things that religion set an accentuation upon, and additionally what
impacts those religious convictions (the result of public activity) had on the lives of all inside
a general public.

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He was the pioneer in sociology of religion. In 1912, in his book, ‘The Elementary Forms of
the Religious Life’, he attempted to identify the starting point and the components basic to all
religions. Durkheim contends that religion started in the social occasion of the totemic group.
Conventionally, the individuals of the tribe lived separately. Whenever they assembled, their
sheer contact with each other made an extra ordinary sentiment of vitality and power. They
felt implanted, elevated, and amazing. Realizing that individually they lacked this, they
credited it not to themselves but rather to something outer. They ascribed it to the totemic
token and they took it as the object of worship.
Since the supernatural power that they credited to the totemic seal was in truth their own
aggregate power, the genuine root of religion was their very own shared understanding of
themselves among themselves.
Durkheim's second purpose was in identifying certain elements of religious beliefs that are
common across different cultures. A belief in a supernatural realm is not necessary or
common among religions, but the separation of different aspects of life, physical things, and
certain behaviours into two categories -- the sacred and the profane -- is common. Objects
and behaviours deemed sacred were part of rites, objects of reverence, or simply behaviors
deemed special by religious belief. Those things deemed profane were everything else in the
world that did not have a religious function or hold religious meaning. He also found that all
religions develop a community around their practices and beliefs. Thus according to
Durkheim, a religion is a unified system of beliefs and practices related to sacred things, that
is to say, things set apart and forbidden, which unite into one single moral community called
a church, and all those who adhere to them.8 Throughout human history, the distinction
between the profane and the sacred has been central to all religions. In brief, religion is a
system of beliefs and practices acknowledging the Sacred. Thus, Emile Durkheim perceived
that it is the general public, not the person that recognizes sacred and profane things. There is
nothing in an object that makes it fundamentally sacred. And this sacred is attributed or
imparted through rituals
and so accepted by the society. By doing so, religion is able to reaffirm collective morals and
beliefs in the minds of all members of society and thus, acts as a functional source of social
cohesion. Religion maintains the influence of society -- whereas "society" represents the
norms and beliefs held in common by a group of individuals.

8
Emile Durkheim,The Elementary Forms of the Religious Life, 1912

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 (ii) Karl Marx
Almost half a century before Durkheim, Karl Marx likewise depicted religion as an
impression of society. At the point when Durkheim underlined the positive elements of
religion, Marx focused on its dysfunctions. As indicated by him, all religions mirror the way
that human lives are controlled by outer controls over which they have no control. They are
influenced by the external forces that control their daily life, where the terrestrial forces
assume the form of supernatural forces.9 Marx made a difference between primitive religions
and modern religions. As indicated by him it was the intensity of nature that controlled man
in the primitive society, while in the modern world it is the powers of social framework,
which practice this outside strength. He believed that religion represents human self-
alienation. According to Marx, man projects his own perfection into the supernatural and
calls the sum of these qualities as 'God', and thus he is alienated.
The fundamental principle of Marx's critique of religion is that man makes religion and
religion does not make man.10 Religion is described as the 'moral sanction', the 'solemn
completion', and the 'universal ground for consolation and justification' for this world.11
Hence, according to Marx, religion has become an integral part of this distorted world. So
much so, religion has become necessary for the consolation of human beings in this world.
He thus declared ‘religion to be the opium of people.’12 Religion is described here as the
expression of the distress of this world, as the "sigh of the oppressed creature.” At the same
time, however, religion is also a protest against this distress. However, according to Marx,
this protest remains vain and ineffective because it distorts attention from this world and
focuses on hope. It defers happiness and rewards to the after life, teaching the resigned
acceptance of existing conditions in this life.13 By redirecting their eyes to future satisfaction
and happiness in a coming world, religion takes their eyes off from their sufferings in this
world, accordingly diminishing the likelihood of opposing their oppressors. When Durkheim
saw religion as helpful to all fragments of society by advancing social duty, Marx held the
view that religion serves the interests of the ruling elite to the detriment of the majority. Thus,
Marx was of the view that religion in its traditional form will and should disappear.

9
Karl Max, On Religion
10
Karl Marx: 'Contribution to the Critique of Hegel's Philosophy of Right:
Introduction', On Religion
11
Ibid
12
Ibid
13
Jagdish Chandra, Foundations of Sociology, 2012

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 (iii) Max Weber
Karl Marx enlivened Max Weber's enthusiasm for religion to a few degree. Like Marx,
Weber gave a lot of his scholarly life to researching the historical backdrop of free enterprise
and capitalism. He credited Marx for highlighting the role of economics in history. However,
Marx trusted that all history could be clarified as class struggle based on economics, while
Weber contended financial aspects as just a single of the numerous factors affecting the
course of history. Marx held the view that
religion is a deterrent to social change, though Weber contended that religion could likewise
be an operator of social change in his book ‘The Protestant Ethic and the Spirit of
Capitalism’14, Max Weber holds that the Protestant conviction was one of the numerous
components that added to the ascent of capitalism. In spite of the fact that he couldn't help
contradicting Marx's monetary determinism, he didn't refute the role of economics ever. The
point of this book was to demonstrate that history couldn't be decreased to one-factor
clarifications and that religion could be a driving force of social change.

From the above viewpoint, religion could be comprehended and translated as instrumental to
uncover human issues and furthermore to discover solutions from the sociological point of
view. The Sociologists perceive that religion is vital to each culture and they look to see how
religious convictions and practices direct human social orders. Sociologists concur that
religion is an important social institution that must be comprehended in the setting of the
society. As indicated by them religion advances social attachment by uniting members of a
society through shared images, qualities and standards.

FUNCTIONAL THEORIES OF RELIGION

Present day sociologists have been trying logical endeavors to comprehend and clarify the
non-logical social marvel that comprise of convictions and practices. In their endeavors to do
as such, they have established the frameworks of some social hypotheses of religion. The
practical hypothesis of religion is essentially a sociological hypothesis which has been
produced by scholars, for example, William Robertson Smith, Emile Durkheim, A.R.
Radcliffe-Brown, B. Malinowski, Max Weber, Talcott Parsons, and their adherents.
The essential presumption of the functionalist way to deal with religion is that religion is all
around found since it has a fundamental capacity in keeping up the social framework all in

14
Max Weber, The Protestant Ethnic and The Spirit of Capitalism, 1905

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all. The principle social prerequisite that religion is esteemed to satisfy has been "the need of
ideological and nostalgic union, or solidarity. The unity and solidarity of the community is
further increased by the rituals that are enacted on religious occasions. These rituals also have
the capacity of bringing people together and reaffirming the values and beliefs of the group.
They also help to transmit the cultural heritage from one generation to the next.
The rituals maintain taboos and prohibitions and those who violate them are punished. The
disobedient or violators of norms may even be required to undergo ritual punishment or
purification. The rituals have another function also. In times of individual distress or group
crisis the rituals provide help and comfort. According to Durkheim, much of the social
disorder in modern times is due to the fact that people no longer believe deeply in religion
and that they have found no satisfying substitute for that. Lacking commitment to a shared
belief system, people tend to pursue their private interests without regard for their fellows.

The criticism of structural-functional approach to deal with religion is that it ignores

religion's dysfunctions. For example, religion can be utilized to legitimize psychological
oppression, terrorism and savagery. Religion has frequently been the justification of war. In
one sense, this still fits the basic utilitarian methodology as it gives social attachment among
the individuals of one party in a clash. For example, the social cohesion among the
individuals of a terrorist group is high, however in a more extensive sense, religion is clearly
bringing about clash without scrutinizing its activities against different individuals of society.

PSYCHOLOGICAL THEORIES OF RELIGION

Religion is not a psychologically important area of interest. Many psychological textbooks

devote little attention to religious issues. In some instances, this attitude is suspicious and
even hostile. However, it is not possible to ignore the contribution of many psychologists to
religion and its role in Human life. Some are very important and worthy of study. Most
theories of psychology stress upon the emotional aspects of religion.

(i) William James

His book ‘The Varieties of Religious Experience: A Study in Human instinct’ (1902) is
considered by numerous individuals to be the exemplary work in the field, not just on the
grounds that it was one of the primary investigations on religious experience by a
psychologist, yet in addition due to his approach. This book gave an early catalyst to the

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psychology of religion. As indicated by him there is plausibility of both a healthy and sick
type of religion. He thinks that there is something in human consciousness different from
particular sensations. He differentiated between institutional religion and personal religion.
Institutional religion alludes to the religious gathering or association, which plays an critical
part in a general public's way of life. Individual religion, in which the individual has a
mysterious ordeal, can be experienced irrespective of culture. He was essentially intrigued by
understanding individual religious encounters. Religious cognizance begins in the individual
through an otherworldly ordeal. It very well may be transmitted and created with the
assistance of worship, prayer, meditation and the like with the help of institutional religion.

(ii) Sigmund Freud

Freud's critique of religion is well known to academic community. In his writings, he tries to
explain how we are influenced by the past events and by things outside our conscious mind.
According to Freud, people experience conflicts between what they desire to do (represented
by our id) and the social control over our desires (represented by the Superego). These
conflicts are resolved, to a greater or lesser degree, by the Ego. It is the guilt feeling of the
people who cannot accept their desires and hatred that lead them to postulate and to fear a
god. According to Freud, the faith in God and religion need not always be wrong. If at all it is
illusory, all illusions need not always be false. He thinks that religious doctrines can be
illusions, because there is no proof for them and that they seem to contradict our scientific
knowledge. Further, it is felt that their authenticity cannot be proved. He called them illusions
because he believed that they were the fruits of human wishes rather than of rational inquiry.
The desire for security and companionship is fulfilled through religion. He considered
religious practices as neurotic. He saw religious ritual as something similar to the obsessional
neurotic of patients (who did things for no apparent reason). Freud often describes the
religious beliefs and practices as expressions of illusions and neurosis. Freud's views on
religion seem to have considerably influenced our society.

All these theories point to the fact that man is by nature religious. This religious nature seeks
to fulfill itself in peaceful and proper relations. If we see religion as a relationship with one
another, with others and with the Divine, it becomes even more true.

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CHAPTER-III: RELIGION AND ITS IMPACT ON INDIAN SOCIETY AND
CONSTITUTION

India is home to the world’s major religions. Hinduism, Buddhism, Jainism and Sikhism
originated in India. Besides these, India also houses places of worship and holy sites of Islam,
Christianity, Zoroastrian, Bahai15 and the Jewish faith. Hinduism is the dominant faith
practiced by 80% of the population. Besides Hindus, Muslims form a integral part of Indian
population. Infact, India houses the 2nd largest Muslim population in the world.16 Religion
governs the mundane activities of citizens. In an average Indian household, the day starts
with worshipping and ends with the prayers of God. Schools begin their day with morning
prayers, commence the lunch timings with afternoon prayer and disperse again with saying
prayers. India is one of the countries with the largest number of public holidays in offices and
schools, the major percentage of which is comprised by religious holidays. Religion
influences one’s eating habits, one’s interaction with the society, one’s demeanour, one’s
dressing style and other basic chores of life. In India one finds the harmonious blend of
myriad of religious practices of various faiths. The morning resonates with the serenity of the
Muslim’s prayer calls, the evening streets buzz with the chimes of the temple bells and the
night beams gloriously with the candles of the Church. Every second household is different
from the first when it comes to following the practices of the religion it believes in. There is a
striking multitude of faiths and practices and yet life continues peacefully with people being
tolerant towards each other’s beliefs and customs. Everyone is free to follow what his faith
demands him to. This peculiar congruence in the diversity invokes strong sense of
astonishment in those who are strange to the Indian culture. The question here is how is it
possible to maintain a population of over a billion-practising numerous different religions to
co-exist harmoniously without any discontent?

As much as religion is deeply ingrained into the Indian society governing the most
rudimentary day to day activities of people’s life, the fact that ‘Secularism’ is one of the
philosophies of the Indian Constitution seems paradoxical. But, ‘secularism’ is the answer to
the question that we raised. The unity and fraternity of the people of India, professing
numerous Faiths, has been sought to be achieved by enshrining the ideal of a ‘secular state’,

15
Bahai faith is a religion that fuses the fundamental teachings of all other religions. The three core principles of
this faith are: the Unity of God, the Unity of Religion and the Unity of humanity.
16
Indian Society and Culture, page 75

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which means that the State protects all religions equally and does not itself uphold any
religion as the State religion.17

Without recognizing any particular religion as the state religion, the Indian constitution
respects all the religions practiced in the country. In a country that is home to multifarious
faith and beliefs, it is unarguably prudent to adopt the principles of secularism. The secular
objective of the state was formally inserted in the Indian Preamble by the 42 nd Constitutional
Amendment Act, 1976.

The constitution of India grants freedom of Religion to all its citizens in the form of Article
25, Part III. Article 25 reads,

(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practice
and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State
from making any law -

(a) regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus

Article 26 reads,

Freedom to manage religious affairs Subject to public order, morality and health, every
religious denomination or any section thereof shall have the right

(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law
Under Article 26 (b), therefore, a religious denomination or organization is conferred with the
privilege of absolute autonomy in the matter of deciding as to what rites and ceremonies are

17
Introduction to the Constitution of India, 22 nd Edition, by Durga Das Basu

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essential according to the tenets of the religion they hold and no outside authority has any
jurisdiction to interfere with their decision in such matters.

Subject to certain limitations, Article 25 confers a fundamental right on every person not
merely to entertain such religious beliefs as may be approved by his judgment or conscience
but also exhibit his beliefs and ideas by such overt acts and practices which are sanctioned by
his religion.18 Thus in the form of Article 25 and 26, the Indian Constitution vests rights in
the citizens to freely exercise their beliefs as long as they do not encroach on the rights of
other person. It is also noteworthy to mention to Article 325, it reads:

No person to be ineligible for inclusion in, or to claim to be included in a special, electoral

roll on grounds of religion, race, caste or sex.

Keeping in mind that the distribution of the population belonging to different religions is
uneven throughout the country, upholding the ideal of secularism makes it easier for smooth
functioning of the country. A secular state is found on the ground that the State is concerned
with the relation between man and man and not between man and God. The state treats all the
religions and the religious groups equally with equal respect without in any manner
interfering with their individual right of religion.19 With such provisions of the Indian
Constitution, situation where a dominant religion may overpower those in the minority is
conveniently staved off.

Besides the constitutional provisions, the Indian State also recognizes and abstains from any
kind of intrusion into the religious customs and practices by having different set of personal
laws for the different prominent religions. For example, the Hindu Marriage Act 1955 and
Muslim Personal Laws. Over a period of time religious customs and traditions gain the force
of law e.g.: According to morality, maintenance of wife and children is the bounden duty of
the husband. In order to uphold this principle, provisions for awarding maintenance is made
as a rule in Hindu Marriage Act, 1955 and Sec 125 of CrPC20.

In an American case (vide Davis v. Benson, 133 U.S. 333 at 342), it has been said “that the
term ‘religion’ has reference to one’s views of his relation to his Creator and to the
obligations they impose of reverence for His Being and character and of obedience to His

18
http://shodhganga.inflibnet.ac.in/bitstream/10603/77961/9/09_chapter%2004.pdf Last visited: 21/11/18
19
Supra 2
20
Section 125 of the CrPC talks about order for maintenance of wives, children and parents.

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will. It is often confounded with cult us of form or worship of a particular sect, but is
distinguishable from the latter.”21 However, this definition is not what our constitution
makers would have subscribed to. For religion is not necessarily always theistic. Important
religions of India like Buddhism and Jainism do not believe in the existence of God.

The Indian Constitution does not define the term ‘Religion’ per se. There are no rigid
boundaries defining religious practices in India. However, the judiciary in deciding cases may
stumble upon circumstances where it becomes an imperative to delineate what practices
amount to religious practices and are therefore protected under the constitution. In such cases,
they usually take help of scriptures to ascertain the validity of a practice in questions. Many a
time it happens that most of the decisions taken by the courts are so cautiously decided in
order not to hurt the religious sentiments of the hoi polloi that they are almost on the brink of
defeating other rights and principles of natural justices. Such is the power that religion wields
in India.

21
http://shodhganga.inflibnet.ac.in/bitstream/10603/77961/9/09_chapter%2004.pdf, last visited: 21/11/18

Page 22 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

 CHAPTER-IV: DIFFERENT RELIGIONS ACROSS INDIA AND HOW
THEY AFFECT THE CONDUCT OF CITIZENS

Indian religions and cultures are diverse and have always influenced the way people live in
this part of the world. The major religions of India are Hinduism (majority religion), Islam
(largest minority religion), Sikhism, Christianity, Buddhism, Jainism, Zoroastrianism,
Judaism and the Bahá'í Faith. According to the 2011 census, 79.8% of the population of India
practices Hinduism and 14.2% adheres to Islam, while the remaining 6% adheres to other
religions.

India is a land where people of different religions and cultures live in harmony. This harmony
is seen in the celebration of festivals. The message of love and brotherhood is expressed by
all the religions of India. Whether it's the gathering of the faithful, bowing in prayer in the
courtyard of a mosque, or the gathering of lamps that light up houses at Diwali, the good
cheer of Christmas or the brotherhood of Baisakhi, the religions of India are celebrations of
shared emotion that bring people together. People from the different religions and cultures of
India, unite in a common chord of brotherhood and amity in this fascinating and diverse
land.22

Some notable facts about religion in India:

 India is a religiously pluralistic and multi-ethnic democracy – the largest in the world.

 Islam is the fastest growing religion in India. Growth rate of Muslims has been
consistently higher than the growth rate of Hindus, even since the census data
of independent India has been available. Despite the fact that Muslims form only
constitute 12 per cent of the total population of India, the influence of Islam on Indian
society is very strong.

 While there are legal protections for religious groups and minorities, Indians still
generally experience “high” levels of government restrictions on religion, according
to an annual Pew Research Center study. There are legal restrictions on religious

22
https://www.culturalindia.net/indian-religions/, last visited on 20/11/18, at 10:00 p.m.

Page 23 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

 conversions in at least six states that have at times been used to arrest and intimidate
Muslims and Christians who proselytize.23

Religion has been a very dominant influence in marriage, choice of marital partner and
cohabitation. The project looks at various religions in India and their influence on the
behaviour and conduct of citizens.

Sikhism, Jainism and the Parsi faith with its influence on sexuality and marriage are
reviewed. As per Sikh ideals, a woman is considered to be the other half of a man and the one
who leads him to the doors of liberation. In accordance with his other teachings, Guru Nanak
had also condemned various cultural practices, which were derogatory to the status of women
in the society, such as Sati, Dowry System. Historically, many Sikh women have fulfilled
their moral responsibilities, sense of duty and have also served at various important and
respectable positions in the army as well as in the society. Not only this, the Sikhs have also
historically treated the women captured in battles with respect, considering them as their own
sisters. Jainism is an Indian religion that prescribes a path of non-violence towards all living
beings. Its philosophy and practice emphasize the necessity of self-effort to move the soul
toward divine consciousness and liberation. Jainism is based on three general principles
called the three Ratnas (jewels). They are viz. Right faith, right knowledge and right
action. Householders are encouraged to practice five cardinal principles which are non-
violence, truthfulness, non-stealing, celibacy and non-possessiveness with their current
practical limitations, while monks and nuns have to observe them very strictly. Unlike the
Hindus who look upon marriage as a sacrament, Jains treat the institution as a contractIn
Parsi community, there is a belief that God revealed to Zarthustra, the prophet, that not only
is a marriage a righteous act, but it is also a commitment which makes even the earth rejoice.
Parsis believe that one has to be born a Parsi to be considered a Parsi. In fact, the more
orthodox members of the community are against inter-caste marriage. As per Sikh ideals, a
woman is considered to be the other half of a man and the one who leads him to the doors of
liberation. In accordance with his other teachings, Guru Nanak had also condemned various
cultural practices, which were derogatory to the status of women in the society, such as Sati,
Dowry System. Historically, many Sikh women have fulfilled their moral responsibilities,
sense of duty and have also served at various important and respectable positions in the army

23
http://www.pewresearch.org/fact-tank/2018/06/29/5-facts-about-religion-in-india/, last visited on 20/11/18, at
10:30 p.m

Page 24 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

as well as in the society. Not only this, the Sikhs have also historically treated the women
captured in battles with respect, considering them as their own sisters.24

Christians are expected to reflect on the teachings of Jesus Christ, such as virtue, kindness,
forgiveness, refining the mind, good health, unshakable faith in God and Jesus and only use
any kind of force as a last resort defense.

The project also looks at the influences Islam has had on marriage and sexuality and ends
with a feminist perspective on women and sexual attitudes towards women. slam defines a
dress code for both men and women. For a woman the dress code is a way of protecting her
modesty and privacy-the face and hand being the only uncovered part of her body. Sura
24:31, which says, “And tell the believing women to lower their gaze and guard their private
parts and not to display their adornment except that which ordinarily appears there of and to
draw their head covers over their chests and not to display their adornment except to their
(maharim).” These rules of purdah are relaxed in presence of her husband, son, father, father-
in-law, brother, brother’s son, sister’s son, other women and small children. A man is
expected to keep the portion between his navel to knee covered. Woman has been awarded
the liberty to work beyond the confines of her home as long as she does so with modesty, i.e.,
it doesn’t transgress the bounds of purdah. She must also prioritize her role as a wife and
daughter and not neglect her primary duties. Her earnings are her personal asset and she need
not contribute towards the expenses of the household. Marriage in Islam is endogamous, i.e.,
marriage to a non-Muslim or a non-believer is considered void. Furthermore, if a Muslim
spouse converts to another religion after marriage the marriage is again void.25

The relationship between religion and morality has long been hotly debated, since it is a deep
and emotive topic. The confident pronouncements of public commentators belie the
bewildering theoretical and methodological complexity of the issues. We may not see any
direct relationship between religion and morality. First, to the extent that the terms “religion”
and “morality” are largely arbitrary and do not refer to coherent natural structure, efforts to
establish connections between religion and morality, conceived as monolithic entities, are
destined to be facile or circular (or both). Second, under the pluralistic approach we advocate,
which fractionates both religion and morality and distinguishes cognition from culture, the
relationship between religion and morality expands into a matrix of separate relationships

24
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705692/, last visited on 22/11/18, at 6:00 p.m
25
ibid

Page 25 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

between fractionated elements. Thus, some aspects of “religion” may promote some aspects
of “morality,” just as others serve to suppress or obstruct the same, or different, aspects.26 For
instance, there are many religions which directs the conduct of its members to be righteous,
kind and selfless. Whereas on the other hand, religious groups may be ready to do anything
but “nice” to survive and expand.

Highly religious Indians are happier and more involved with family but are no more likely to
exercise, recycle or make socially conscious consumer choices. A new Pew Research Center
study of the way’s religion influences the daily lives of Indians finds that people who are
highly religious are more engaged with their extended families, more likely to volunteer,
more involved in their communities and generally happier with the way things are going in
their lives. For example, a major proportion of highly religious Indians – defined as those
who say they pray every day and attend religious services each week – gather with extended
family at least once or twice a month.

However, in several other areas of day-to-day life – including interpersonal interactions,

attention to health and fitness, and social and environmental consciousness – it has been
found that people who pray every day and regularly attend religious services appear to be
very similar to those who are not as religious. When it comes to diet and exercise, highly
religious Indians are no less likely to have overeaten in the past week, and they are no more
likely to say they exercise regularly. Highly religious people also are no more likely than
other Indians to recycle, reuse their household waste or discard it properly. And when making
decisions about what goods and services to buy, they are no more inclined to consider the
manufacturers’ environmental records or whether companies pay employees a fair wage.

26
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4345965/, last visited on 23/11/18, at 9:00 p.m

Page 26 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

 CHAPTER-V: SECULARISM AND PERSONAL LAWS: CONFLICT

What does it mean by secularism? Is it just limited to have ‘tolerance’ towards religions or
has a much deeper aspect? Is India secular? It’s been more than 71 years and 68 years 10
months to be exact since India officially became a republic. Our preamble states that: -

“WE THE PEOPLE OF INDIA SOLEMNLY RESOLVE TO CONSTITUTE

OURSELVES INTO SOVEREIGN, SECULAR, SOCIALIST, DEMOCRATIC,
REPUBLIC AND TO GIVE OURSELVES THIS CONSTITUTION…”

So, it can be said that at least our constitution to the very least bestows a secular character on
the nation. But the real question is that is it deeply imbibed in all or at least in the perceived
basic sense by the very people who constituted the constitution in the first place? Well to
answer this, we must look upon the very character of the Indian society and the various
attributes influencing its perspective.

India is a land of diverse cultures, traditions, not to mention the dynamic social scenery is
sprinkled with an extremely complex concoction of different religions and their conflicting
ideologies, which interestingly have managed to exist ‘harmoniously’ through the centuries
and still manages to exist. These religions have their personal laws, governing the social
interactions of their believers, the believers in whose psyche these laws have been deeply
rooted and have been imbibed as a part of their character.

The laws burdened with maintaining the essential character of the identity of India as a
secular state have provided with limited freedom to the boards or the institutions charged
with maintaining the personal laws and taking actions as long as their laws do not conflict the
law of the land. But what happens when they do come in conflict with each other? What takes
preference, the believes of the people who give this nation, its very identity or the laws which
govern the people? Normally we would say justice should prevail and laws must be adhered
to, if not followed would lead to a state of total anarchy. Moreover, a more educated view
might be the laws are made by the lawmakers, who are elected by the people of the nation
hence, as they represent the people, they represent the general consciousness so; the laws they
make are also in the interest of the people. Maintaining this view is not so easy in a nation
like India where the ideologies, cultures, traditions are so complexly interwoven and overlap

Page 27 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

that it is almost humanly impossible to represent every tribes, societies, religions values and
provide a perfect habitable environment.

The conflict between the personal laws and Lex loci is sure to arise. Well it must be
appreciated that the constituent assembly achieved to bring in a constitution with an inherent
secular character in a country with not so inherently secular character though with the grace
of many of its ancient and medieval rulers the country has during many eras have got a taste
of it.

Even though there was a conflict between the members of the constituent assembly on the
idea of having a nation without a state religion, the government formed by the Indian
National Congress for a very long time followed on the principles of secularism. But the
1980s were a completely different era; the then Prime Minister Smt. Indira Gandhi launched
the operation blue star to drive the pro Khalistan movement leader and religious figure Jarnail
Singh Bhinderwale and defiling the sanctity of the Akal taqt , the seat of reverence for the
Sikh community , this violent blow left a deep scar in the memory of the Sikh community ,
the repercussion of which led to the demise of Indira Gandhi herself with her own
bodyguards ,both of them Sikh gunning her down which in turn propelled the worst ever
genocide of the Sikh community and the Hindu community tearing both the communities
apart. Later, the Hon’ble Supreme Court of India overruled a Muslim Personal Law of
providing alimony by the Husband to his estranged ex-wife which angered the Islamic
community and was observed as a violation of its character, in order to placate the situation;
Rajiv Gandhi overturned the decision angering the Hindu community making them believe
that the government is leaving the dominant group vulnerable. Interesting such incidents have
very effectively propelled the youth to destroy the cultural heritage of the nation, on 6 th
December 1992, the heritage structure of Babri Masjid built in the 16th century under the
order of the Mughal Emperor Aurangzeb, mosque carried the name of the first Mughal
emperor Babur. The action was over unconfirmed alleged historical evidences that the
construction was done on destroying a Hindu Temple dedicated to Lord Rama in a political
rally which turned violent. This incident echoed internationally with the divide between
Islamic and the Hindu communities deepening further. In the aftermath, around 2000 people
from both sides died with the Pakistani Islamic community destroying countless Hindu
Temples as revenge further straining the political ties of both the nations.

Page 28 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

The Indian National Congress failed to safeguard the secular ideas and the Bhartiya Janta
Party tried to juxtapose its anti-secular ideas. Since then, the nation keeps dawdling in these
anti-secular ideas where the law tries hard to give the well-deserved respect to every religion
and giving ‘ample’ freedom of following their personal laws, integral to their beliefs and
character in observance with the principles of justice. These efforts to maintain a secular
character of the state though may apparently seem effective suffers from internal hindrances
such as social stigma politically motivating the authorities to discriminate against some
minorities.

Most religions are inherently patriarchal and practice exclusion, and Hinduism, the
predominant religion in India, is no exception. Inequality in other forms persist as well:
discrimination on the basis of gender under religion, the existence of personal laws that vary
with each religion, and the replacement of education provided by schools with religious
education. For instance,27, Hindus, Sikhs, and Buddhists are governed by Hindu code bills
like the Hindu Marriage Act and Hindu Succession Act; Muslims are covered by the Muslim
Personal Law; and Christians follow the Christian Personal Law. As such, members of
different religious communities have different guidelines for marriage, divorce, adoption, and
a number of other aspects of life. In an effort to maintain religious equality, the protection of
individual freedoms has been neglected.

The attempt to protect all religions equally by designating Muslims as a ‘minority’

contributes to the religious schism in Indian society. The conceptualization of the ‘Hindu
majority’ and ‘Muslim minority’ came to fruition in the context of granting representation for
local self-governance, leaving the Muslim community feeling threatened by the more
politically powerful Hindu majority. Indeed, the Constitution of India explicitly
acknowledges the concept of minorities: Articles 29 and 30 delineate minority rights to
conserve language and culture and to establish and access education. Of particular interest is
the specification of “minority rights” as opposed to “human rights.” Recognition and
protection of minority groups is a crucial part of a secular state. However, India is historically
a society that places strong emphasis on distinctions, as evidenced by the caste system that
dictated nearly every aspect of life for a Hindu. Additionally, the Muslim population can
hardly be considered a minority; India has the second largest Muslim population in the world
after Indonesia, reaching almost 50 percent of the total population in some areas. Yet this

Hyeon-Jae Seo, Equal but not separate:India’s Secular Dilemma,hir.harvard.edu/article/?a=14574 last visited
27

on November 25,2018.

Page 29 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

differentiation between ‘majority’ and ‘minority’ is dividing India along religious lines.
Further aggravating the situation is the disparity in the laws that apply to the two groups. For
instance, while majority schools are mandated to reserve a quarter of their seats for
economically disadvantaged children, minority schools are exempted from this regulation.
This had led Hindus to develop the notion of minority privilege, which, again, fuels religious
discord.

India’s version of secularism leads to a catch-22; the Indian government is constitutionally

bound to uphold freedom of religion and freedom from discrimination, but religions have
fundamentally in egalitarian practices.

Page 30 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

 CONCLUSION

There was a time in Indian history when religion provided, regulated, and fully controlled the
legal and judicial system of the country. Today the situation is the other way around. In the
secular India of 21st century, it is the law of the land that determines the purview of religion
in the society, and it is the judiciary that ascertains what the laws relating to the scope of
religion will say, mean, and require.

However even today, religious values and traditions continue to have leverage on Indian
society. This religious facet remains duly illustrated in the Constitution and the quickly
growing body of national laws. It has also remained inside the ambit of judicial activism
generally witnessed in India.

The practice and interpretation of secularism in India have from the very beginning been, and
remain, sensitive to and reconciled with the ground realities. This sensitivity and
reconciliation make India’s religion-state relations both idiosyncratic and fascinating. A
study of India’s specific models of secularism and religious liberty reveals an appreciable
balance of religious and secular interests.

Judicial decisions of the higher courts in religious cases of various nature and kinds generally
reflect an attitude of objectivity and impartiality. There have been some aberrations, few and
far between, at times pointing to the continued existence of committed judges or
those influenced by particular religio-political ideologies. Such aberrations can of course be,
and have often been, freely criticized by conscientious objectors and legal critics

Page 31 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

 BIBLIOGRAPHY

1. Joseph Gaer: What the Great Religions Believe, Dodd, Mead & Co, New York,
1963, pg.16
2. Albert Nambiaparampil (Ed.): Religions and Man- World Conference of Religions,
Chavara Cultural Centre, Cochln, 1981, p.131

3. Fundamentals of Sociology,2006, Sarat C. Joshi

4. The Elementary Forms of the Religious Life, 1912
5. Primitive Culture, 1871
6. Anatomy of the Sacred
7. Conrad Phillip Kottak, op.cit., p.414
8. The Elementary Forms of the Religious Life, 1912
9. Karl Max, On Religion
10. Karl Marx: 'Contribution to the Critique of Hegel's Philosophy of Right:Introduction',
On Religion
11. Foundations of Sociology, 2012, Jagdish Chandra
12. Max Weber, The Protestant Ethnic and The Spirit of Capitalism
13. Bahai faith is a religion that fuses the fundamental teachings of all other religions.
The three core principles of this faith are: the Unity of God, the Unity of Religion and
the Unity of humanity.
14. Indian Society and Culture, by XYZ, page 75
15. Introduction to the Constitution of India, 22nd Edition, by Durga Das Basu
16. http://shodhganga.inflibnet.ac.in/bitstream/10603/77961/9/09_chapter%2004.pdf
17. Section 125 of the CrPC talks about order for maintenance of wives, children and
parents.
18. https://www.culturalindia.net/indian-religions/
19. http://www.pewresearch.org/fact-tank/2018/06/29/5-facts-about-religion-in-india/
20. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3705692/
21. https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4345965/\
22. Hyeon-Jae Seo, Equal but not separate: India’s Secular Dilemna,
hir.harvard.edu/article/?a=14574

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Page 33 I THE NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL