⚫ Religion as a source of Law

⚫ Immanuel Kant:
“Religion is the recognition of all our duties as divine
commands.”
⚫ E. B. Tylor
"Belief in spiritual things"
⚫ James G. Frazer
Religion is "a propitiation or conciliation of powers
superior to man which are believed to direct and control
the course of Nature and of human life."
Meaning
"Latin religio originally meant 'obligation, bond.' It was
probably derived from the verb religare 'tie back, tie tight'
… It developed the specialized sense 'bond between human
beings and the gods,' and from the 5th century it came to
be used for 'monastic life' ... ‘
⚫ Ancient world:
Ancient Egyptian law, dating as far back as 3000 BC, had
a civil code that was probably broken into twelve books
and based on the concept of Ma’at.
Around 1760 BC, King Hammurabi further developed
Babylonian law, by codifying and inscribing it in stone.
 Southern and Eastern Asia
⚫ India and China represent distinct traditions of law,
and had historically independent schools of legal
theory and practice.
Middle ages- Islamic law
European Laws
⚫ Existence and development of Vedic Religions
⚫ Birth of Jainism and Buddhism
⚫ Islamic Laws
⚫ Birth of Sikhism
⚫ Communalism
⚫ Aspects of religion in Modern Time in India
⚫ Provisions under the Constitution of India
⚫ Legislation and State Practice:
❖ Religious Conversion and Renouncement
❖ Religious Endowments in General
❖ Particular Shrines
❖ Protection of Religious Places in General
❖ Religious Laws of Family Relations
⚫ Personal laws of the Hindus, Buddhists, Jains, and
Sikhs
⚫ Personal law of the Muslims
⚫ Offenses against Religion
⚫ Judicial Rulings
⚫ Bal Patil v. Union of India, (2005) 6 S.C.C. 690
⚫ “The states will treat all religions and religious groups
equally and with equal respect without in any manner
interfering with their individual rights of religion, faith
and worship”.
⚫ Stainislaus v. Madhya Pradesh & Ors, (1977) 2 S.C.R.
611, Article 25 of the Constitution
⚫ “not the right to convert another person to one’s own
religion, but to transmit or spread one’s religion by an
exposition of its tenets.”
⚫ Ismail Faruqui v. Union of India, A.I.R. 1995 S.C. 605
⚫ “offering prayers in a mosque is not necessarily an
“essential practice” in Islam”.
⚫ Acharya Jagdishwaranand Avadhuta v. Comm’r of
Police, A.I.R. 1984 S.C. 5
⚫ According to natural religious law – a law driven from
a faith in God or in divine forces – morality and
legality are embedded in religion.
⚫ This sensitivity and reconciliation make India’s
religion-state relations both unique and fascinating.
 ⚫ Dharma as a source of law
⚫ Dharma, in concept deals with duty, religion and
inseparable quality of a thing or orders i.e. virtuous
conduct of righteous man.
⚫ Hindu jurisprudence: Dharma means “Duty”
⚫ Dharma is derived from the root Dhr—to hold—and
its meaning is ‘that which holds’ this world.
⚫ Vedic concept : Rita is predecessor to Dharma and is
the Original Rig Vedic concept.
⚫ Dharma in words of Madhavacharya:
⚫ “It is most difficult to define Dharma. Dharma has
been explained to be that which helps the upliftment of
living beings.

Shruti

Dharma

Smirties Puranas
⚫ Functions of Dharma:
⚫ A.S. Narayana Deekshitulu vs State Of Andhra
Pradesh & Ors., 1996 AIR 1765
⚫ “Religion is enriched by visionary methodology and
theology, whereas dharma blooms in the realm of direct
experience. Religion contributes to the changing phases
of a culture; dharma enhances the beauty of
spirituality. Religion may inspire one to build a fragile,
mortal home for God; dharma helps one to recognize
the immortal shrine in the heart.”
 ⚫ Dharma & India
⚫ With the advent of British rule, and their ignorance of
the Indian laws had a devastating effect on the concept
of Dharma.
⚫ British considered Dharmashastras to be the Civil
Code of Conduct
⚫ Post independence: The principles of natural law
(Dharma) found its way into the constitution in the
way of fundamental rights.
⚫ The Hindu law was codified
⚫ Judiciary’s Attitude:
⚫ A.D.M. Jabalpur Vs Shiv Kant Shukla, AIR 1976 SC 1207
⚫ Shri A.S. Narayana Deekshitulu vs State Of Andhra
Pradesh & Ors
⚫ Dattatraya Govind Mahajan vs. State of Maharashtra,
AIR 1977 SC 915 1977:
⚫ “the court talks about the Dharma of the Constitution,
and the karma of adjudication”.
⚫ National Legal Services Authority (NALSA) v Union of
India (UoI) (2014):
⚫ “we therefore hold that values of privacy, self-identity,
autonomy and personal integrity are fundamental
rights guaranteed to members of the transgender
community under Article 19(1)(a) of the constitution of
India and the state is bound to protect and recognize
those rights”.
⚫ Maneka Gandhi v. Union of India,1978 1 SCC
248
⚫ “These fundamental rights represents the
basic values cherished by the people of this
country since the Vedic times and they are
calculated to protect the dignity of the
individual and create conditions in which
every human being can develop his
personality to the fullest extent.”
 Law (reasons Dharma (Religion
rights& duties) &Duty)
 ⚫ Culture as source of law:
⚫ The origin of the Latin word cultura is clear. It is a
derivative of the verb colo (infinitive colere),meaning
“to tend,” “to cultivate,” and “to till,” among other
things.
⚫ It is defined as a set of values and beliefs.
⚫ all laws and the law-makers reflect the cultural ethos
of the society.
 ⚫ Influence of culture in the society

⚫ Immediate/rapid influence of culture

⚫ Manifestation of culture is a fairly accurate barometer
of the social response to a situation which has become
intolerable.
⚫ Culture also refers to a set of rules and procedures
along with a supporting set of ideas and values.
 Culture of different countries
Western culture
Eastern culture
Latin culture (America, South America and Mexico)
African culture
Cultural Rights in the Indian Constitution
⚫ Fundamental rights (protection of minority)
⚫ Indian Case Law on Cultural Rights:
⚫ Dayanand Anglo Vedic College v. State of Punjab (1971)
(Arya Samaj was a separate religious sect in Panjab)
▪ Shastri Yagnapurashdasji v. Muldas Bhundardas Vaisya
(“Satsang case”) A.I.R. 1966 S.C. 1119