Y.Srinivasa Rao, Prl. Senior Civil Judge, Tirupati .
“India is a country built on the foundations of a civilisation that is fundamentally tolerant.” — Rajni Kothari.
Introduction:- Freedon of religion in India is a fundamental right. Every citizen of India has a right to practice and promote their religion peacefully. Religion plays a major and sensitive role in India. With regard to legal process in India is concerned, Buddhists, Jains and Sikhs are classified as Hindus, however, theose are subject to Hindu personal law. If we see the legal histroy, it is known that from 400 BC, the Arthashastra was considered as influentail treatise and from 100 AD, Manusmruthi was the influential treatise in India more in particluar in
Southern Asia, that these texts were accepted as authoritative guidance. The Preamble of our Constitution shows that the people of India had resolved to constitute India into a Sovereign Secular Democratic Republic and promised to secure to all its citizens Justice, Liberty and Equality and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. In the people of India, therefore, vests the legal sovereignty while the political sovereignty is distributed between the Union and the States.
Freedom of religion in India is a fundamental right:-
The people of India have a right to practice and promote their religion peacefully because Article 25-28 of the Indian Constitution guarantees the freedom of religion in India. It is a fundamental right in India. The preamble was amended in 1976 to state that India is a secular state. S.R Bommai v. Union of India – 1994 AIR 1918 = 1994 SCC (3) 1 is a landmark ruling. In this ruling the Apex Court held that India, as the Preamble proclaims, is a Sovereign, Socialist, Secular, Democratic Republic. It promises liberty of thought, expression, belief, faith and worship, besides equality of status and opportunity. What is paramount is the unity and integrity of the nation. In order to maintain the unity and integrity of the nation our Founding Fathers appear to have leaned in favour of a strong Centre while distributing the powers and functions between the Centre and the States. This becomes obvious from even a cursory examination of the provisions of the Constitution. Article 25 (2b) uses the term “Hindus” for all classes and sections of Hindus, Buddhists, Jains and Sikhs. Freedom of religion includes that the freedom to change one’s religion or beliefs.
The essence of a federation:-
In order to understand whether our Constitution is truly federal, it is essential to know the true concept of federalism. Dicey calls it a political contrivance for a body of States which desire Union but not unity. Federalism is, therefore, a concept which unites separate States into a Union without sacrificing their own fundamental political integrity. Separate States, therefore, desire to unite so that all the member-States may share in formulation of the basic policies applicable to all and participate in the execution of decisions made in pursuance of such basic policies. Thus the essence of a federation is the existence of the Union and the States and the distribution of powers between them. Federalism, therefore, essentially implies demarcation of powers in a federal compact. See. 1994 SCC (3) 1.
The oldest federal model in the modem world can be said to be the Constitution of the United States of America. The American Federation can be described as the outcome of the process of evolution, in that, the separate States first formed into a Confederation (1781) and then into a Federation (1789). Although the States may have their own Constitutions, the Federal Constitution is the suprema lex and is made binding on the States. That is because under the American Constitution, amendments to the Constitution are required to be ratified by three- fourths of the States. Besides under that Constitution there is a single legislative list enumerating the powers of the Union and, therefore, automatically the other subjects are left to the States. This is evident from the Tenth Amendment. Of course, the responsibility to protect the States against invasion is of the Federal Government. The States are, therefore, prohibited from entering into any treaty, alliance, etc., with any foreign power. The principle of dual sovereignty is carried in the judicial set-up as well since disputes under federal laws are to be adjudicated by federal courts, while those under State laws are to be adjudicated by State courts, subject of course to an appeal to the Supreme Court of the United States. The interpretation of the Constitution is by the United States Supreme Court.
Incidents of religious intolerance:- As it is discussed above, freedom of religion is a fundamental right. Unfortunately, in India, there have been copious incidents of religious intolerance which resulted in riots and violence. 1984 Sikh Massacre is one of the examples. Ten commissions or committees have been formed to investigate the riots. Marwah Commission was appointed in1984; The Justice Misra Commission was appointed in May 1985; The Kapur Mittal Committee was appointed in February 1987; The Jain Banerjee Committee, The Potti Rosha Committee, The Jain Aggarwal Committee, The Ahuja Committee, The Dhillon Committee, The Narula Committee were also appointed. Later, The Nanavati Commission was appointed and that this commission was headed by Justice G.T.Nanavati, retired Judge of the Supreme Court of India. The Central Bureau of Investigation closed all cases against Jagdish Tytler in November 2007 for his alleged criminal conspiracy to engineer riots against Sikhs in the aftermath of Indiara Gandhi’s assassination. According to an April 2014 Cobrapost sting operation the government muzzled the Delhi police during the riots. Messages were broadcast directing the police not to act against rioters, and the fire brigade would not go to areas where cases of arson were reported In January 2018, the Hon’ble Apex Court decided to form a three-member Special Investigation Team (SIT) of its own to probe 186 cases related to 1984 anti-Sikh riots that were not further investigated by Union Government formed SIT. Despite several political parties and governments have promised compensation for the families of riot victims, compensation has not yet been paid. Similarly, Gujarath roits in 2002 and Anti-Christian roits in 2008 are another instances as to incidents of religious intolerance in India. It is signficant to note that India is one of the most diverse nations in terms of religion, it being the birthplace of four major world religions: Jainism; Hinduism; Sikhism and Buddhism. It is also seminal tonote that The country has significant Muslim; Sikh, Jain; Christian, Buddhist and Zoroastrian populations. Islam is the largest minority religion in India, and the Indian Muslims form the third largest Muslim population in the world, accounting for over 14 percent of the nation’s population.
Religion and the Law:-
In India, Muslim’s personal laws are mostly based on Sharia and it is partially applied in our country. Coming to Christain Law is concerned, in India, it is mostly based on specific statutes. In 2001, the Christain law of succession and Divorce was undergone changes. So far as Hindus are concerned, there is a specific law which is known as ‘Hindu Law’. It is signifcant to see that in India, the family law is vey complex because each releigion has its own specific laws which these people ahdere to. In this case of Maharshi Avadhesh, it was prayed to issue a writ of mandamus to the respondents to consider the question of enacting a common Civil Code for all citizens of India. The second prayer is to declare Muslim Women (Protection of Rights on Divorce Act, 1986 as void being arbitrary and discriminatory and in violation of Articles 14 and 15 Fundamental Rights and Articles 44, 38, 39 and 39-A of the Constitution of India. In this case of Maharshi Avadhesh vs Union Of India -1994 SCC, Supl. (1) 713, the Hon’ble Supreme Court held that these are all matters for legislature. The Court cannot legislate in these matters. Observing the same the Apex Court dismissed the writ petition .
Pramati Educational and Cultural Trust and others Vs. Union of India and others – 2014 (4) ALT (DN) (SC) 4.4 (L.B), in this this case, the Apex court held that Article 30(1) of the Constitution, all
minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice. As was held in this ruling, religious and linguistic minorities have a special constitutional right to establish and administer educational schools of their choice. The Hon’ble Apex Court over and over again held that the State has no power to interfere with the administration of minority institutions and can make only regulatory measures and has no power to force admission of students from amongst non-minority communities, particularly in minority schools, so as to affect the minority character of the institutions.
Imporatnt Supreme Court rulings for perusal:-
:- In this case,
Foundation and others Vs. State of Karnataka and others – 2002 8 SCC 481; M. Nagaraj and others Vs. Union of India and others – 2006 (8) SCJ 457; Society for Unaided Private Schools of Rajasthan Vs. Union of India and another – 2010 (4) SCJ 318.; Indra Sawhney and others Vs. Union of India and others – 1992 3 Supp. (SCC) 217; Minerva Mills Ltd. and others Vs. Union of India and others – 1980 3 SCC 625; Edward A. Boyd and George H. Boyd Vs. Unites States – 1884 116 U.S. 616; His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala and another – 1973 4 SCC 225; State of Kerala and another Vs. N.M.
T.M.A. Pai Thomas and others – 1976 2 SCC 310.
‘Religious denomination’ :-
The term ‘religious denomination’ means
collection of individuals having a system of belief, a common organisation; and designation of a distinct name. The right to administration of property by a ‘religious denomination’ would stand on a different footing altogether from the right to maintain its own affairs in matters of religion. See. Dr. Subramanian Swamy Vs. State of Tamil Nadu and others – 2015 (2) SCJ 47 (Division Bench). The Court held that Undoubtedly, the object and purpose of enacting Article 26 of the Constitution is to protect the rights conferred therein on a ‘religious denomination’ or a section thereof. However, the rights conferred under Article 26 are subject to public order, morality and health and not subject to any other provision of Part III of the Constitution as the limitation has been prescribed by the law makers by virtue of Article 25 of the Constitution.
Mitakshara and Dayabhaga Schools:-
Owing to the emergence of various commentaries on Smriti and Shruti, various schools of thought were aisen. Because of varience of commentary in one part of the India from the commentary of other parts of the country, two main schools were arisen such as ‘Mitakshara and Dayabhaga. ‘Dyabaga school’ exists only in Bengal and Assam. Under Dyabhaga school, the right to Hindu Joint family property on the death of the father but not by birth. The legal heirs will get shares after death of the father.
Except in State of Bengal and Assam, in all parts of the country, Mitakshara schools exists. Mitakshara schools is based on Yagnavalkya. Under this school of Mitakshara, the inheritence is based on the principle of propinquity. The nearest blood relatioship will get the property. Of course, there are four sub groups in Mitakshara namely Dravida school, Maharastra school, Banaras school, and Mithila School. See. Collector of Madura vs. Moottoo Ramalinga Sethupathy (Popularly knoiwn as ‘’Ramnad case’’) -12 M.I.A. 397 (1868). The principle of law observed in this case is that ‘clear proof of usage will outweigh the written text of the Hindu law.’.
In Collector of Madura V/s. Mootoo Ramalinga Sethupathy (1868) 12 M.I.A. 397 wherein the validity of a widow’s adoption with the consent of her husband’s kindred was authoritatively laid down, their Lordships of the Privy Council observed that: the assent of kinsmen seems to be required by reason of the presumed incapacity of women for independence rather than the necessity of procuring the consent of all those whose possible and reversionary interest in the estate would be defeated by the adoption. That the rights of property should also be taken into account was for the first time expressed in Sri Virada Pratapa Raghunada Deo V/s. Sri Brozo Kishoro Patta Deo (1876) I.L.R. 1 M. 69 : L.R. 3 I.A. 154 (P.C.). At page 83 the Privy Council said: It may be the duty of a Court of Justice administering the Hindu Law to consider the religious duty of adopting a son as the essential foundation of the law of adoption, and the effect of an adoption upon the devolution of property as a mere legal consequence. But it is impossible not to see that there arc grave social objections to making the succession of property, and it may be in the case of collateral succession, as in the present instance, the rights of parties in actual possession, dependent on the caprice of a woman, subject to all the pernicious influences which interested advisers are too, apt in India to exert over women possessed of, or capable of exercising dominion over, property. It seems, therefore, to be the duty of the Court to keep the power strictly within the limits which the law has assigned to it. For more information as to succession among Hindus. see. The article written by Shri Y.Srinivasa Rao titled ‘Latest trends in succession among Hindus’ which was published in AIR 2019 May part- Vol.106- Part-1265, at page 66.
India is one of the most diverse nations in terms of religion, it being the birthplace of four major world religions: Jainism; Hinduism; Sikhism and Buddhism. In India, Muslim’s personal laws are mostly based on Sharia and it is partially applied in our country. Coming to Christain Law is concerned, in India, it is mostly based on specific statutes. Although Hindus form close to 80 percent of the population, India also has region-specific religious practices. To say in short, J&K has a Muslim majority, Pujab has a Sikh majority, Nagaland, Meghalaya and Mizoram have Christian majorities and Sikkim and Ladakh, Arunachala Pradesh and the state of Maharastra and the Darjeeling District of West Bengal have large concentrations of Buddhist population. . Islam is the largest minority religion in India, and the Indian Muslims form the third largest Muslim population in the world. Freedom of religion is a right that supports the freedom of an individual or community, in public or private, to manifest religion or belief in teaching, practice, worship, and observance. We all must remember the valuable words of Rajni Kothari who says that “India is a country built on the foundations of a civilisation that is fundamentally tolerant.”