When we discuss the religious context of law we generally quote the Articles of the Constitution. That specifies how we as a citizen or government should approach religion. The Provision in the Constitution allows individuals to practice and profess religion subject to public order and morality (Article 25), grants the right to manage religious affairs (specifically establishing institutions and acquiring property, (Article 26), grants tax relaxation (Article 27) and allows to participate in religious activities organised by the educational institution of states (Article 29). Besides that, we have the Religious Institution Act 1988, the Place of Worship Act 1991, and the Hindu Code Bill. The act of 1988 was enacted to prevent religious institutions to used as political propaganda. The Act of 1991 was enacted to prevent the conversion of religious places. The Hindu Code Bill regulates marriage, succession, adoption, and guardianship. These laws have a very limited scope to regulate religion.
Beyond law, religion is a political
tool of polarization. To understand political polarization, we need to
understand Social fabrics. In the Social fabric, two major sects are positivist
ideology and Naturalist ideology (Theologist). Theologists are the dominant
class in India, which has a small population. Despite the population, they are the
ruling community in India. Their ideology revolves around God. This community
usually opposes Constitutionalism.
We
may not know the terminology “positivist,” but most of us would be
aware of the positivist ideology. The founding father, Ambedker, burnt Sanskrit
books and he chose Buddhism. Buddha preached that we should think and act logically and asked
his followers not to blindly believe him. Jagdev Prasad threw Hindu Gods out of
his house in the event of the death of his father. Phule preached to us to
focus on education against religious norms. Pariyar vocally criticised every
practice of religion. This logical thinking in legal philosophy is recognised
as positivism.
I am
not an expert in religion nor do I have an interest in it. All I have is a
little information about the law, and going through the law, I came to know the
religion. We know that religion and law are always in contrast to
each other. Therefore, I will discuss how law is different from religion. What
is the importance of law and religion in the actual lives of individuals? How
law replaces the dominance of religion, which existed in the 12th century. What
are the major conflicts between law and religion? How do religious polarisations disturb the harmony and legal structure in India?
Importance of Law and
Religion
If you are practising
advocacy, there have been instances that you might have been trying to convince
your clients that the law can get them justice. Do we succeed in it? We often
fail. People in India are reluctant to approach the police and court. Those who
are at the grassroots level of the hierarchy of the social structure will not choose the law as a tool to get justice.
Most of us will opt to recover our losses with our labour. The portion of society that can afford law can manage to go through the hectic
procedures of the legal system. The remaining indigent people are at the mercy of God.
This is why indigents choose the pavements recognised by religion for justice.
We often embrace religion in our lives at the time of birth, marriage, or death. At the community level, we involve ourselves in religious activities during festivals. Some of us might also be involved in daily prayers. However, do these activities play a role in another part of our life, is hard to say. Unless you treat God as an extraordinary power, you will feel and say that the things and environment around us have evolved in a logical manner rather than a creation of God.
Therefore, we
need to understand why we fail to convince anyone to observe the law. Whether a
person interact with the law only in a courtroom or police station? It is
crucial to understand the law as an advocate, client, or citizen because we often
face the law in daily events. We often face the law even if we are not to take
consultation of advocates. Advocates are not the only people who face the law
in their daily lives.
From morning
to evening, almost every activity involves some kind of Law. Company law,
consumer law, competition law, and many more regulate the paste we use to clean our teeth. When we ride a bus, train, flight, or vehicle, the related implied
contract, motor vehicle law, insurance law, environmental law etc. regulate us.
When we are at the workplace, women's protection laws, labour laws, taxation laws,
and employment laws govern us. While purchasing groceries, electronic
items land or any services; laws of contract influence our decisions. Name any area
of our life, I am sure several laws would regulate that part of
our life. The law regulates even the event of birth, marriage death or
festivals. An individual, in the present scenario, has to register his birth, marriage,
and death in government records until or unless he lives in a remote area. To
organise religious events in public space you may have to get permission from the
local government.
We may
say that the law is a bundle of rules, that regulates human relations with all
the material and metaphysical things to an extent it affects humans. The law
has grown into this form as the civilisations have evolved.
Development of law and hindrance
of religion
Science says that humans have developed or evolved from monkeys. Do monkeys have family or society? Individuals and families are the smallest units of society. Aristotle describes the individuals, families and clans that existed before the establishment of cities. A family generally consist of a Mukhiya and dependents. Can we image our head of family as a religious head of family? The Mukhiya has to work hard to earn or gather food; he cannot expect God to fill his stomach. Mukhiya is responsible for establishing certain orders to maintain the sustainability of the family; law appears at this stage as a command of Mukhiya. Even today, the Mukhiya family is the political head of the family. A Mukhiya cannot say that God governs him. Any action of Mukhiya, decided by him, cannot be a religious belief.
Religion
has no place in our daily practical and scientific life. In Europe around the 12th
century, religion was at peak. This was the time when science was at the initial
stage of development. Every argument of science challenged the prior norms. Galileo
was one of the examples, he protested against the catholic priest. Galileo claimed that the Earth is round and revolves around the sun. The
religious dominance was against Galileo as his thoughts were provocative to
their preconceived norms. Galileo was imprisoned until he died. However, at
present, we know that Galileo was true in every sense.
Science was challenging religious norms so was the law. The story of the United Kingdom from the 12th century is a correct example of such challenges. The religion had a claim that everyone is a product of the so-called God. Even Jal, Jamin and Jangal the God’s gifts, therefore, no one (individual) should have control over these things. Due to this notion, no one could acquire land as private property. The peasants were subject to the threat of God, to work in fields of religious institutions. Religious institutions were rich organisations even stronger than their king. King was facing problems in collecting taxes from peasants due to these notions. The kingdom was vulnerable to attacks from neighbouring kingdoms because the king was weak. The king had either to bow before the monastery or to overrule the monastery to ensure the security of the state. The tax collection by the king and free labour to the monastery were creating problems for the peasants. The revolt of peasants against the monasteries and the king forced them to reform these practices. Therefore, the King allowed private ownership of land. Slowly the monastery weakened and the tax collection of the kingdom grew. That is how the kingdoms grew more powerful.
There
was another concern about the law and religion. The Social contract theory claims
that humans are unjust to one another so as the king is. No one is above the
divine Law; the divine law binds even the King. This notation challenged the
king and his authority. King was subject to observing the opinion of bishops.
This group of bishops have transformed in the form of the upper house. Later
kingdom faced another revolt and citizens suggested the king organise regular
meetings of the representatives of different social groups. In this way, the
king handed over most of his power to the group of people throughout the
territory. This association slowly transformed into a lower house called the Common
House of Parliament. This transformation strengthens the Kingdom. These
transformations provided pavements for most of the modern courtiers. USA,
Canada, Australia, and India are the best examples.
There
could be numerous occasions where religion interfered legal system at the initial
stage of modern history. Things changed as science and technology took over religion.
The science also contributed to law and society. Due to the Industrial
Revolution, science changed the social structure drastically. Now in the 21st
century, our life without science and technology is unimaginable. Similarly, the
life of a human in the absence of law would be in Jungle.
You
may ask why I am discussing the English context while describing the
development of law. The reason is obvious the English people were the first, to
understand the importance of the printing press. They could produce and record
the development of law and it was they who propagated law in documented form.
India was one of the consumers of the legal products of English people. India
at that time was neither capable of producing law nor could document it.
Major debates on religion
and law
Opinions of philosophers have contributed a lot to the development of law and legal structure. Aristotle, Grotius, Hobbes, Locke, Rousseau, and Hume in legal philosophy are classified as naturalists. They tried to explain the events of society in their own words and acknowledge the forces of nature. Thomas Aquinas was the principal jurist who tried to establish the relationship between law and religion based on reasons. The main propositions naturalist philosophers follow:
- Man is a part of nature. Man is the creation of God.
- The Law of Nature is universal. The Law of Nature/God binds man.
- Man is unjust towards another man. Therefore, the law of nature is above all, even the king is bound by the law of nature.
The main contributors to scientific changes in the legal system are Bentham, Austin, Kelsen, Kant, Hart, and Rawls. The main proposition of these jurists is:
- Neither Earth nor humans are the centre of the universe.
- Science is a systematic arrangement of information. Law is a systematic arrangement of legal information. It is knowledge of what law is not what ought to be.
- Law is distinct from religious morality. Only logical means can drive legal decisions. Moral statements are not meant as statements of facts for justice.
- Law is the command/order of the sovereign (state/human being). In the legal system, human beings make rules.
Polarization in India in the
name of Religion
Human life is
logical, as we have explained earlier. However, there are some contraries to
it, religious morality has a strong hold on Indian society. Religion plays a
major role in the social and political decision-making of India. Parents decide
admission or their ward in schools based on their religious affiliation.
Festivals are being organised on public roads to show dominance to other
communities. The election of a person to assemblies depends on the caste and
religious affliction of candidates. Religious affiliation are basis for the government’s
schemes (e.g., the Aam Adami Party provides Ayodhya yatra to Hindus, as they
are a major vote bank). Leaders worship particular Gods to impress the
particular community.
Polarization is
not a new phenomenon all this started long ago. At the event of the implementation of the constitution
and the establishment of the Supreme Court of India, the first Chief Justice of
India, sworn in the name of God that he with though judiciary embed the emblems
of God. Out of the six Judges of the Supreme Court of India, five Judges were
the Sanskrit Schoolers. These five people belonged to a specific caste and the
person (the Prime Minister) who appointed them was of the same caste. However,
the election or appointment in developed nations is not a matter of religion or
dominance.
The
social and political practices of Western countries are more logical rather than
moral or religious. Recently, the United Kingdom elected a person of Indian
origin named Rishi Sonak as prime minister. An Indian-origin woman named Kamala
Harries was elected as the vice president of the United States of America.
Conclusion
We have discussed law and religion in the Western context and its relation to India. Law has acquired a versatility and is being observed by us in all aspects of our lives. However religious control over our lives is limited.
We have a
great influence on Western country’s laws. The legal practices of Western
countries are more scientific rather than religious. Indian-origin individuals
are becoming executive and legislative heads in these countries. A person
belonging to a minority community can become part of the mainstream governance
in a democratic country. The Indians should take positive approaches; we should
intend to protect the law (constitution) rather than religion.