Religion, Law and Secularism

•Religion is the sigh of the oppressed creature, the

sentiments of a heartless world and the soul of soulless
conditions. It is the opium of the people.---- Marx

•Religion is a kind of spiritual gin in which the slaves of

capital drown their human shape and their claims to any
decent life.---Lenin

•Religion legitimates social institutions. It does this ‘by

locating them within a sacred and cosmic frame of
reference’.
Law has been an integral part of both Hinduism and Islam

Sources of Hindu Law:

• Shruti
• Dharmashastras
• Custom

• The law of the Dharmashastras is a mixture of morality,

religion and law.-S.V. Gupte

• The term Dharma includes religious, moral, social and

legal duties and can only be defined as the whole duty
of man
 Sources of Muslim Law Shariah

• Koran
• Hadith
• Ijma
• Qiyas

Kazis or Muftis –sit as Judges in the criminal courts

End of Muslim criminal law by the Regulation 6 of 1832

• Diwani Adalats- established by Warren Hastings in 1772
to apply Civil Law
• Code of Hindu Law-1775
 Special Marriage Act-1872-Renouncement of Religion

• Hindu Marriage Bill- inter-caste marriage, monogamy,

and divorce

• Hindu Adoptions and Maintenance Bill….

• Dattaka Mimansa and Sanskar Kaustubha in Support

• State of Bombay v. Narasu Appa, 1952- Bombay HC

prohibition of Polygamy in Hindu Religion

• Uniform Civil Code?

 Aruna Roy v. UIO,(2002)7 SCC 368
• The Apex Court cited: “… the students shall be trained
to cultivate the habit of understanding and appreciating
the doctrines of various great religions of the world in a
spirit of reverence and broadmindedness…..

• ‘It is not religion that is the source of trouble, but it is

misunderstanding of religion that is the source of
trouble’.- Constituent Assembly Debate

• UN Declaration on the Elimination of All Forms of

Intolerance and Discrimination Based on Religion or
Belief, 1981- World Peace, Social Justice…….
 Secularism as a solution

• Etymologically it connotes irrelevance of, and

indifference to religions and exclusion of
religious considerations.
• In a secular state individual are treated as
citizen irrespective of his religion….
• Bombay Temple Entry Act, 1947
• S.R. Bommai v. UIO, (1994)3 SCC 1: AIR
1994 SC 1918- A positive concept of equal
treatment of all religions- P.B. Sawant, J
 Secularism: The Features

• Primacy to the individual by placing him before and

above the religion
• Recognizing freedom of religion
• Enunciation of the principle of tolerance

‘For God-fearing men, all religions are good and equal, only
the followers of different religions quarrel against one
another and thereby deny their respective
religions……..Religion is no test of nationality, but a
personal matter between man and his God’.
- Gandhiji
 Secularism, Communalism and Fundamentalism

• The doctrines promoting social inertia such as fatalism

and divine retribution have no place in secularism.

• Secularization is a process of social change through

which the public influence of religion and religious
thinking declines as it is replaced by other ways of
explaining reality and regulating social life.
• Secularism-The Problem
• Gurpreet Mahajan:
a) a separation of religion and politics, is alien to Indian
society and way of life
b) The idea comes with the Protestant ethic
 Religion is constitutive of society, and hence can not be
separated and isolated from politics.- Madan, T. N.

• The texture of secularism is democratic humanism; its

temper is ethics and goodness, its enemy is
authoritarianism, religious, political or other, its grammar
is man’s scientific perception of reality.- Krishna Iyer

• Secularization operates through:

• Education- Legislation- Social reforms

• Casteism, tribalism, linguism and religious communalism

are painful facts of our day to day existence.
Communalism is defines as ‘above all an ideology’, ‘a false
consciousness’, and ‘a instrument of ruling class politics’.

• Communalism is a state of consciousness…which

primarily draws upon certain assumptions of distinct
cultural identity for member professing the same
religion.- Panikar, K.N.

• Hindu Rashtra- V.D. Savarkar, S.P. Mukherji and M.S.

Golwalkar

• Jammat-e-Islami
• R.S.S….
 Fundamentalism can be defined as an ideology
advocating strict adherence to a religious doctrine
and also advocating a sense of contempt for the
people who do not follow these principles. It is anti
modern and tries to evoke a utopian past mentioned
in the religious scriptures by criticizing the modern
scientific advancement based on logic.

Both fundamentalism and communalism are harmful for

the socio-cultural fabric of a society as they promote
narrow and sectarian views. However fundamentalism is
much more harmful to the modern societies. As it is anti-
modern, anti liberal, anti democratic and is against
scientific and technological advancements.
 Art.25(1):..All persons are equally entitled to freedom of
conscience and the right freely to profess and propagate
religion
• Art.27: Prohibits use of public revenues to promote or
maintain any particular religion.

• Art.28: Prohibition upon imparting of religious instruction

in public schools.
• Art. 290….

• Art.51(e) and (f)

• P.S. Charya v. State of Madras, AIR 1956 Mad 541

Surya Narayan Choudhury v. State of Rajasthan,
AIR 1989 Raj 99
“All men are born equal…To present them as
unequals before God is, therefore, injustice and
insult to our maker besides being contrary to the
guarantee and mandate of equality in our
Constitution and a basic human right.”-J.S. Verma,
J.

S. Mahendran v. Secy., Travancore Dewaswam

Board, AIR 1993 Ker 42- Restriction imposed by
temple authority- upon entry of women between the
age of 10 and 50 to Sabarimala temple during the
festival time.
N. Adithayan v. Travancore Devaswam Board, (2002) 8
SCC 106: AIR 2002 SC 3538- Abolition of hereditary posts
like-Archaka, trustee, santikaran, etc.

• Saifuddin Syedna Taher Saifuddin Saheb v. State of

Bombay, AIR 1962 SC 853- Power to excommunicate

• State partisan approach of favouring one of the religious

communities at the cost of the other was sternly dealt in
Tejraj v. State of M.B., AIR 1958 MP 115- installing a
Shivling in a Jain temple.

• Gehohe-E-Miran Shah v. Govt. of A.P. AIR 1992 AP 357-

Right to procession but different time
M. Ismail Faruqui v. Union of India,(1994)6 SCC 360:AIR
1995SC605
Mohd. Aslam v. Union of India, (1995) 1 SCJ 152

• Kodikunnil Suresh v. N.S. Saji Kumar, (2011) 6 SCC 430B

• Representation of People Act, 1951- Cheramar SC Kerala

• 123(3-A)

• Rev. Stainislaus v. State of M.P. (1977) 1 SCC 677-

Conversion
 Legislative Efforts
• Chapter XV of IPC, 1860 contains important sections
dealing with offences relating to religion.
• Sections: 295, 296, 297 and 298

• Religious Institutions (Prevention of Misuse) Act, 1988

• The Places of Worship (Special Provisions) Act, 1991-

Prohibition and punishment for illegal take over of place
of worship.
• Section 3 states ‘No person shall convert any place of
worship of a different religious denomination or any
section thereof’.
• The Acquisition of Certain Area Act (Ayodhya Act), 1993
 The Commission of Sati (Prevention) Act, 1987
• Karnataka Devadasi (Prohibition of Dedication) Act, 1982

• Immoral Traffic Prevention Act, 1956

• Bombay Devdasi Prohibition Act, 1934

In interpreting the statutes and other sources of family

law, judiciary has attempted to internalize these values.

• Danial Latifi, Madhu Kiswar and Gita Hariharan

judgments reflect reformative impact of human rights
jurisprudence
 Uniform Civil Code-Art 44

• Islam in India functioned as a political entity rather than

as a legal system.

• The Muslim Personal Law is merely a compilation of

some of Ulema (religious scholars) at the instance of
Lord Macaulay.

• It is based on the Futuhat-e-Alamgiri, the judicial

pronouncements in the reign of Emperor Aurangzeb.

• Convert Marriage Dissolution Act, 1866

• Christian Marriage Act, 1872
• The Parsi Marriage and Divorce Act, 1865
 Tahir Mehmood, raised some significant points about
Art.44 and it’s application: enactment of Law

• Is endevouring to secure something the same as directly

enacting the law?

• What is the meaning of civil code? What is conveyed by

the expression uniform?

• Are ‘uniform’ and ‘common’ interchangeable words?

• What is the significance of the clause throughout the

territory of India in Article 44?
Does the Constitution talk of a strict and rigid uniformity of
family law”

• Does the Constitution talk of uniform civil code as an

end in itself? Or is it meant to be the means to achieve a
purpose?

Minority: The Constitution uses the term

minority/minorities only in four articles, namely, Articles
29 (1), 30, 350-A and 350 B

• Art. 350 A- instruction in the mother tongue

• Art. 350 B- Special Officer for linguistic minorities

The National Commission for Minorities Act, 1992 says that
“Minority for the purpose of the Act, means a community
notified as such by the Central Government”- Section 2(7).
Acting under this provision on 23-10-1993, the Central
Government notified the Muslim, Christian, Sikh, Buddhist
and Parsi (Zoroastrian) communities to be regarded as
“minorities” for the purpose of this Act.

The Supreme Court in TMA Pai Foundation & Ors vrs State
of Karnataka and Ors (2002) has held that for the purpose of
Article 30 a minority, whether linguistic or religious, is
determinable with reference to a State and not by taking into
consideration the population of the country as a whole.
 Constructed Majorities, Defensive Minorities

• ‘Hindu nationalism emerged successfully in the 1980s as

a kind of ‘conservative nationalism’ that mainly attracted
more privileged groups who feared encroachment on
their dominant positions, but also ‘plebian’ and
impoverished groups seeking recognition from
majoritarian rhetoric of cultural pride, order and national
strength ‘.- Hansen

• The notion of ‘cultural nationalism’ easily develops into a

‘tyranny of the majority…
• ..while the alienated minorities mobilise in self defense,
and reciprocal antagonisms degenerate into conflict…
A HLC to study their conditions was set up in
1980 under the chairmanship of Gopal Singh. In
1983, the Prime Minister’s 15-Points Programme
was launched to provide a sense of security to
minority communities and ensure their rapid
socio-economic development. This programme
was based on three-pronged approach:
1. To tackle the situation arising out of
communal riots;
2. To ensure adequate representation of the
minority communities in employment; and
3. Other measures, such as ensuring flow of
benefits to the minority communities under
various development programmes…
 APPOINTMENT AND COMPOSITION OF HLC

• Notification on March 09, 2005 to prepare a

report on Social, Economic and Educational
Status of Muslim community of India.
1. Justice Rajender Sachar
2. Mr. Saiyed Hamid
3. Mr. M.A. Basith
4. Dr. Rakesh Basant
5. Dr. Akhtar Majeed
6. Dr. Abu Saleh Sharif Member Secretary
Report submitted to the Prime Minister on 17 Nov. 2006.

Laid in Parliament–30th November, 2006.

List of follow- up action on recommendations approved by

Cabinet–17th May, 2007

Identification:

• Geographical pattern of economic activity

• Asset base and Income levels
• Levels of Socio- Economic development
• Educational Progress, Literacy rates, drop out ratios etc.
• Relative Share in Public and Private sector employment
• Proportion of OBC in Muslim community and their
problems.
The Committee recommended setting up of an
autonomous Assessment Monitoring Authority,
creation of a National Data bank and
constitution of an Equal Opportunity
Commission (EOC).
To ensure comprehensive development
through a multi- sectoral approach, 90 Minority
Concentration Districts (MCDs) covering 34% of
the minority population in the country, have
been identified.

The human indicators include:

1.Literacy rate of minorities. 2. female literacy rate
3. WPR; and 4. female work participation.
 Population…..

• CENSUS 2001: Muslim population: 138 million,

Estimate for 2006 150 million
• Population growth has been high for all major
religious minorities.
• The literacy rate among Muslims in 2001
(59.1%) is far below the National average
(65.1%)
• Of 593 districts, 9 districts show more 75%
concentration of Muslims. Muslim population
ranges between 1-10% or more in 458 districts.
As per the Sachar Committee Report (based on
National Sample Survey Organisation [NSSO] 61st
round), Muslim OBCs constitute 40.7 per cent of the
total Muslim population, 6.4 per cent of the
country’s entire population and 15.7 per cent of the
total OBC population.

In terms of regional analysis the states of

Kerala and Tamil Nadu, they constitute almost the
entire Muslim population.
 Participation/Representation

• Presence of Muslims: I.A.S. 3%, IFS 1.8%, IPS

4%.

• Muslims constituted 4.9 % of candidates who

appeared in the written examination of Civil
Services in the year 2003 and 2004.

• There is no diversion between all candidates and

Muslim candidates in percentages of those
recommended for interviews and appointments.
 Out of every 100 workers, about 11 are Hindu OBC, only
three are Muslim-general and one is Muslim OBC.

• Muslims have a representation of only 4.5% in Indian

Railways. Almost all (98.79%) of them are at lower
levels.

• Share of Muslims in Security Jobs is around 4%.

• Muslim Share in Education Department 6.5%, in Home

Department 7.3%. Over all share of Muslims as police
constables is only 6%

• The Mandal commission declared 82 groups among

Muslims as part of the OBC.
 Affirmative Action…

• Kerala and Karnataka extended reservation to their

entire Muslim population

• Havanur Commission, 1972 recommended a separate

category reservation for minorities– 6%

• In Kerala, a separate Muslim share was fixed at 10%

later raised to 12%.

• The highest proportion of Muslims declared as ST is

found in Lakshadweep where Muslim constitute entire
ST Population [99.74%]
 Efforts Needed:

• Teachers training to be made compulsory

• State is required to run Urdu Medium Schools.
• Workout mechanism whereby Madarsahs could
be linked with Higher Secondary Boards.
• Recognition of Madarsah degrees for
competitive exams.
• Promoting and enhancing access to Muslims in
priority sectors.
• Policy initiatives required.
 "Nai Roshni"-The scheme for leadership development of minori
ty women
: The implementation of the Scheme started in 2012-13.
"Seekho aur Kamao(Learn & Earn)"- The scheme for skill
development of minorities.

"Jiyo Parsi" - The central sector scheme for containing

population decline of Parsis in India.

"Padho Pardesh"
- scheme of interest subsidy on educational loans for overseas s
tudies for the students belonging to the minority communities