International Journal of Legal Enforcement

International Journal of Legal Enforcement

Volume 1 Issue 1 |July 2020| |February 2021|

Email: [email protected] Website: www.internationaljournaloflegalenforcement -ijle.com

International Journal of Legal Enforcement

About Us:

International Journal of Legal Enforcement is an online peer review journal provide dedicated to express views on legal and socio legal aspects. This platform also shall ignite the initiative and desire of the young students. We also provide exclusive review by our Advisory Board for the papers submitted to us. We believe humanity is basic thing to be involved in any law. We do not charge any publication charge for online publications. We process to bring out the analysis and thoughts of every socio legal and legal matters from the young powerful minds. Law can be fulfilled as Law only when there is humanity in it.

With this thought we hereby present you, International Journal of Legal Enforcement

International Journal of Legal Enforcement

Comparative study of secularism and religious with judiciary

interpretations

-P. Charushree

I. Introduction:

India is a famous country for having a feature called “Secularism”. India is the only country which has many different religious and sub religious where each religion has a distinct feature each are different for their belief faith. Though India is divided in many forms such as lifestyle, religion, faith, followings, food, dress and more it is still called has a country for UNITY IN DIVERSITY. when we talk about Religion and Secularism both sounds similar but they have a distinct meaning and characteristics. Before India gained independence “Hindustan” was reorganized as a country and a sub-continent. When the question of drafting, the constitution of India, there arose the fundamental feature of the entire constitution has been deemed to be absolutely secular. If we refer to the preamble of the constitution , it explicit in the language of the preamble itself and very clear in its concept and content, the Indian state is describe as a Secular, Democracy, Socialist, Sovereign, Republic.

The preamble of the CONSTITUTION adopted by independent India on 26th November, 1949 [effective from 26th January, 1950] declared India as “Sovereign, Democratic, Republic.” Till the 42nd Amendment in 1976, the constitution did not contain the word “Secular” although the spirit of SECULARISM is evident in the various article of the CONSTITUTION.

II. MEANING AND DEFINITION OF SECULARISM:

With the Forty-second Amendment of the Constitution of India enacted in 1976, the Preamble to the Constitution asserted that India is a secular nation. Officially, secularism has always inspired modern India. In practice, unlike Western notions of secularism, India's secularism does not separate religion and state.

Secularism in simple terms means Secularism is a belief system that rejects religion, or the belief that religion should not be part of the affairs of the state or part of public education.(1)

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The principle of separation of the state from religious institutions.

Dr. J.N. Pandey in his words THE STATE CAN HAVE NO RELIGION OF ITS OWN. IT SHOULD TREAT ALL RELIGIONS EQUALLY. THE STATE MUST EXTENT SIMILAR TREATEMT TO THE CHURCH, MOSQUE, AND THE TEMPLE. IN A SECULAR STATE, THE STATE IS ONLY CONCERNED WITH THE RELATION BETWEEN MAN AND MAN. ITS NOT CONCERNED WITH THE RELATION OF MAN WITH GOD IT IS LEFT TO THE INDIVIDUAL’S CONSCIENCE. (2)2

III. FREEDOM OF RELIGIOUS UNDER INDIAN CONTITUITION:

India, most popularly acknowledged as the land of spiritual beliefs, philosophical thinking, culture, has also been the birthplace of quite a few number of religions out of which some of them exist in this era as well. ‘Religion’ is entirely a matter of choice, perception and belief. Paying heed to the Indian scenario we can conclude that , people in this country have a strong faith and dependence when it comes to their religion as they perceive that religion adds meaning and reason to their lives. When it comes to people who are extremely devoted to their religion , they leave no stone unturned in showing substantial amount of fidelity towards their respective religion.

➢ Definitions by various authors:

1. George Bernard Shaw: “There is only one religion, though there are hundreds of versions of it."

2. Sigmund Freud : "Religion is comparable to childhood neurosis."

3. Rudolph Otto : Religion is that which grows out of, and gives expression to, experience of the holy in its various aspects."

2 In the books of constitutional law of India by J.N. Pandey International Journal of Legal Enforcement

The Indian Constitution guarantees various fundamental rights to the citizens. One of the fundamental rights guaranteed by the constitution also includes right to freedom of religion. India is a secular nation and therefore every citizen residing within the territory of India has the right to follow the religion he believes in . This right basically entitles every Indian citizen and gives him the liberty to preach practice and propagate the religion of his choice . This right gives leisure to to sermonize about his religion , gives him the opportunity to spread it among everyone without any fear of governmental vengeance and also gives him the assurance to practise it in an amicable manner within the jurisdiction of the country.

When we talk about India, we can say that it is the land of diversity be it in terms of race, religion, creed, community, caste etc. It is a country where millions of people belonging to different caste, sub –caste, race, dialects and also those practicing different religions have been residing since times immemorial. The differences when it comes to communities or religion or caste are not at all looked upon as a drawback or impediment when it comes to development but it is considered to be a crucial factor which serves as a helping hand in enriching the culture not only in the society but also in the nation as a whole.

Every person has the freedom to have faith in the religious beliefs of any particular cult or denomination. The allocation of this right according to the constitution is mainly to provide every person with an occasion to declare in open, freely and without any hesitation what he truly feels about his respective religion, his conceptions and ideologies relating to the religious practice he has indulged himself into. The right to profess a particular religion means enabling a person to communicate his thought process, mindset and viewpoints to some other people with an intention to spread his religion and make them well versed and clear in their head, in the society. Though every person is entitled to the right to preach and expand the religion of own wish and desire but it is also to be taken into account that this right shouldn’t be taken for granted that is , the freedom allotted should not be abused . The person while exercising this right should ensure that he is not indulging in any sort of criminal or other anti- social activities. One needs to always bear in mind that, in the process of utilizing this freedom for one’s own personal good or benefit the societal peace is not at all hampered and no harm or any kind of pain is inflicted upon any member in the society. He needs to confirm that while exercising this right given to him by the constitution he does not hurt the religious sentiments of the other devotees. Everyone has a different approach when it comes to practicing their religion but at the same time it is International Journal of Legal Enforcement

adopts an disallowed to practice it in a manner which will incite violence and encourage hatred among the masses. It is important for every citizen to respect the religion any citizen to impose his religious views or opinions on other individuals. Every citizen is expected to preach his religion in a rational manner. Immersing into immoral and illegal activities in the name of religion and disturbing the order and unity of the country is not permissible. No citizen would go scot free if he is found guilty of committing any kind of evil or dishonest activities on the ground of following the norms and rituals of his religion. The law does not sanction any person to conduct his religious practices pertaining to his own whims and fancies and leading to create a situation of outrage, chaos and animosity . It is an undeniable fact that every individual has its own ways and means to practice his respective religion, but it shouldn’t proceed in a haphazard fashion. An individual is not answerable to State for the variety of his religious views. The right of worship was granted by God for man to worship as he pleased. Law cannot compel any individual to practice a particular form of worship. But undoubtedly the law has the right to cease the practice of any kind of malicious and corrupt religious activities being carried on, for the purpose of maintaining order and discipline in the country. When a person illegal way of practicing or promoting his religion, it sets a bad example for the existing masses as it conveys to them that everyone is entitled to exercise the freedom of religion allocated to them , in any manner even though it might be unlawful and unethical in the eyes of law. Every religion has its own code of conduct, rituals, ceremonies modes of worship etc, but while following and obeying the same an individual should take into account that decency and morality is maintained. He needs to be aware that the religious activities he resorts to does not give rise to any kind of conflict and cause destruction of the property and life of the people in the society. Law will take the requisite steps and measures if at all any acts endangering the safety and unity of the country is projected in its eyes.

Article 25 to Article 28 of the Indian Constitution guarantees the right to freedom of religion to all the citizens residing within the territorial boundaries of the country.

1. Freedom of conscience and free profession of religion.( Article 25) 2.Freedom to manage religious affairs (Article 26)

3. Freedom from payment of taxes for promotion of any particular religion( Article 27)

4.Freedom to attend religious instructions ( Article 28) International Journal of Legal Enforcement

In Quareshi v The State, an interesting question arose, whether prohibiting cow- slaughter affected the religious right of the Mahomedans. It was argued on behalf of the petitioner that the sacrifice of a cow on the Bakri- Id day was a part of the Muslim religion and also approved by the Khuran. However, the Supreme Court rejected this contention on the ground that satisfactory evidence to support it had not been produced.

In L. T .Swumiar v Commr. H.R.F. Madras it has been held that even if a tax is imposed on persons belonging to a particular religion, in order to meet the expenses of that particular religion , such tax is void.

In Sarla Mudgal V. Union of India, the questions which had come up for consideration of the Supreme Court , where four petitions were filed under Art 32 of the Constitution Of India were: 1. Whether a Hindu husband who has been married under the provisions of the Hindu Marriage Act, by embracing Islam is in a position to solemnise a second marriage? 2. Whether such a marriage without even having the first marriage dissolved

Marrying again during lifetime of husband or wife.—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Spouses is not at all a ground to have the marriage dissolved.

The Court took into account that the Hindu Marriage Act envisages only monogamy and clearly states that a person married under the act in no way can escape the provisions by merely changing the religion. Such a person is held guilty of having committed the offence of bigamy if he marries again during the lifetime of his spouse, and it matters not what religion he professes at the time of the second marriage.

“The Constitution provides for Freedom of Religion, Not Freedom From Religion.”(3)3

3 Legalservicesindia.com Retrieved on 18 June 2020

International Journal of Legal Enforcement

WHAT IS THE MAJOR PROBLEM, WHICH IS INCREASINGLY POSE CHALLEGNGES TO SECULARISM IN INDIA?-

India is characterized by more ethnic and religious groups than most other countries of the world. Aside from the much noted 2000-odd castes, there are eight "major" religions, 15-odd languages spoken in various dialects in 22 states and nine union territories, and a substantial number of tribes and sects.

Three ethnic or religious conflicts have stood out of late: two occurred in the states of "Assam and Punjab; another, the more widely known Hindu-Muslim conflict, continues to persist. The Assam problem is primarily ethnic, the Punjab problem is based on both religious and regional conflicts, while the Hindu-Muslim problem is predominantly

➢ ETHNIC CONFLICT IN ASSAM

Of the three conflicts mentioned, Assam has attracted the largest attention of late. Not since the 1947 partition of India have so many people been killed and uprooted as a result of ethnic or communal violence. By most available reports now, mob violence has claimed four thousand lives, rendered about 200,000 homeless, and forced a large number to leave the state for protection elsewhere. The immediate occasion of this bloodshed was the election held in February, though conflict and tension have been present for the last three years. In Assam, three culturally disparate groups have been in collision: the Assamese, the Bengalis (both of which have segments of Hindus and Muslims) and the tribal, which are localized communities.

➢ . SIKH-HINDU CONFLICT IN PUNJAB

Starting in August 1980, mounting communal tension between Hindus and Sikhs in the state of Punjab led to violent clashes, in the last year in particular. Unlike Assam, Punjab is a state with the highest per capita income. It is the seat of the Green Revolution in India, whose biggest beneficiaries have been the rich Sikh peasants. In Punjab, Sikhs are a majority, Hindus, a minority. International Journal of Legal Enforcement

Although religious symbols have been used for the mobilization of Sikhs and the secessionist slogan of Khalistan (a sovereign state of Sikhs) has been raised, the Sikh's charter of demands, drawn from the Anandpur Sahib Resolution, has strong economic and political components, unlike in Assam where the issue of aliens has sidelined economic demands.

The "major" religious demands by the Sikhs, including greater radio time for religious broadcasts over federally controlled radio, and a separate legislative act for Sikh religious shrines, were granted by New Delhi this past February. The major political demands are greater powers, including financial, for the states vis-a-vis New Delhi. A commission has been appointed to review these demands. The economic demands include a greater share of river water.

➢ . THE HINDU-MUSLIM PROBLEM

Of all the religious and ethnic issues in contemporary India, history has cast its deepest shadow on Hindu-Muslim relations. The most critical contemporary phase of this history was the partition of 1947. A Muslim sovereign state of Pakistan was born amidst ghastly communal violence but almost as many Muslims as there were in the new constituted Pakistan, for various reasons, stayed in India. The partition did not solve the Hindu-Muslim problems; it caused the situation of the Muslims in India to deteriorate. They were blamed for the division of the country, their leadership had left and their power was further weakened by the removal of all Muslim- majority areas except Kashmir. Most of all, the conflict between India and Pakistan kept the roots of the communal tension perpetually alive and pushed Muslims into the unfortunate situation of defending their loyalty to India. Even 36 years after independence, the problem has not been overcome; Hindi-Muslim riots have in fact increased in the last few years.

It would be wrong, however, to mention that the entire Muslim community in India has been under pressure. First, even though a minority (according to the 1971 census, 11.2 percent of the Indian population was Muslim as opposed to 61.2 percent caste Hindus), Muslims are in a majority in one state and constitute 13.5 to 24 percent population in five states. There are 39 districts in India in which they comprise from between 20 percent to 94 percent of the population. Many cultural differences exist among them. Only 45 percent speak Urdu and there are caste and sect divisions. As many as 73 percent live in villages; only 27 percent are urban. This is particularly important, after 1947 the Hindu-Muslim riots occurred for the most part, in urban centers. Most of International Journal of Legal Enforcement

these towns are modernizing, middle-size towns such as Aligarh, Moradabad, Meerut, Ranchi, Baroda, Hyderabad, Trivandrum. In the big and/or industrialized cities such as Bombay, Delhi, Ahmedabad, the communal fury, whenever it has erupted, has remained confined to the older parts of the city. Villages have remained largely undisturbed. Acute communal consciousness occurs largely in the middle class; its most fertile bases lie in the lower middle classes of growing middle size towns of sizeable Muslim populations.

Discrimination exists at other levels in other parts of the country. Decline in the status of Urdu in north India, widespread use of Hindu mythologies and symbols in school textbooks and continuing controversy over the foremost educational institution of Muslims, the Aligarh University, have indeed done much to provoke Muslim fears. Evidence that the police and administrative machinery in recent riots have sided with violent Hindus has further deepened widespread feelings of discrimination.

The emerging character of electoral politics have made matters worse. Communal Hindu parties apart, even the ruling Congress Party, professedly secular, has, since independence, had a dualistic character. The secular strain in the Congress was represented by Nehru but the communal strain was also present in the form of Patel, India's first Deputy Prime Minister, and was more pronounced at the provincial level. Nehru's stature kept the communal strain in check, but in the seventies, the party machinery has been taken over by the new generation of leaders, whose power and mobilization is based less on secularism or socio-economic programs and more on exploiting caste and religious divisions at the local levels.

India knew only about the Citizenship (Amendment Bill) of 2016 (CAB) and Assam's National Register of Citizens (NRC). The CAB has now become the Citizens (Amendment) Act of 2019 (CAA) and a nation-wide NRC has been proposed by the Union Home Minister Amit Shah. The CAA has sparked a country-wide protest, led by students in more than 20 campuses and internet connections have been shut down in many parts of the Northeast, Uttar Pradesh and West Bengal for weeks. More than 10 people have committed suicide in West Bengal alone as the NRC spread and migrant workers are rushing home to collect their documents. The CAA provides for citizenship on the basis of religion but specifically excludes Muslims from it. Which ultimately collapse the entire constitutional words (4)4

4 Cultural survival.org publications.com Retrieved on 20 June 2020 International Journal of Legal Enforcement

5

IV. SUPREME COURT ON SECULARISM AND RELIGION

Our Constitution provides no explicit meaning of “Secularism” and it was only with the 42nd amendment that the word “Secular” was introduced to the preamble of the constitution. However, SC in its capacity as the guardian and final interpreter of the Constitution has continued to evolve the meaning of the “Secularism”.

According to Supreme Court, Indian Secularism is distinct from Western conception and based on values of tolerance and equal respect for all communities. Indian conception is based on the philosophy of “Sarva Dharma Sambhava”. It means that State has no religion and shall treat all religions and religious groups equally. A step forward, it has also declared Secularism as the basic feature of Indian constitution in the famous Bommai Judgement.

However, the definition still remains unclear especially w.r.t. the notion of “equal distance”. Moreover, the SC has also deliberately avoided critical questions of secularism especially in the Babri Masjid Case, when it was most needed. Also, SC has failed to distinguish between the distinct concepts of “Hindutva” and “Hinduism”. The ‘Hindutva’ judgements defined ‘Hindutva’ and ‘Hinduism’ as a ‘way of life’ and thus not applicable as ‘religion’ strictly. These have been referred to a higher bench. These interpretations and ambiguity has been used by Communal forces to whip us anti-minority sentiments and promote cultural nationalism.

In the most recent judgement on this issue, the Supreme Court held that notwithstanding Muslim Personal Law allowing a man to have four wives, Service conduct rules requiring dissolution of one marriage before another was done had to be followed. Thus, there is a need for clarification in the definition of ‘Secularism’

Articles 25 and 26 of our constitution guarantees the right to practice, promote and propagate one’s religion and to manage religious affairs. However, rulers and governments have

International Journal of Legal Enforcement

often intervened in the administration and management of religious affairs on the following grounds:

– To prevent fraud and waste of religious endowments – Maintenance of restrictions like decency, public morality, prevent forced conversion, income management and taxes so that black money is prevented. – To ensure that religious endowments are used for charitable purposes for which they are earmarked – In order to correct for past inequities and create a more egalitarian and democratic admin – Ex. Padmanabhaswawy temple gold being taken out under Supreme Court, government management.

However, even though these intentions seem noble, it is inherently violates the principles of secularism and religious freedom because: --When it applies specifically to the some religions, as is the case in India, it can be perceived as blatant promotion and state supported – Temple Admin will fall prey to party politics and political interference – Usurpation of propriety rights and violation of the FR’s of temple authorities. – Use of temple resources for activities that the state deems “appropriate” might be seen as overreach into religious activities.

Therefore, as the SC has pointed out in Sri Sabanayagar temple case, even if State takes over admin to correct for past injustices, the ownership must be restored to the people concerned once that is done. The State should maintain a principled distance from religion and restrict itself to ensuring equal status for all religions without unnecessary interference in their functioning.

In the case of Sabarimala Once again supreme court has upheld the constitutional rights.

In 2006, six women, members of the Indian Young Lawyers' Association, petitioned the to lift the ban against women between the ages of 10 and 50 entering the Sabarimala temple. They argued that the practice was a violation of their constitutional rights and questioned the validity of provisions in the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules act of 1965 which supported it. ➢ In September 2018 the Supreme Court of India ruled that women of all age groups can enter Sabarimala temple. The court ruled thus: International Journal of Legal Enforcement

➢ We have no hesitation in saying that such an exclusionary practice violates the right of women to visit and enter a temple to freely practice Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship. ➢ The verdict was passed with a 4-1 majority where Chief Justice Dipak Misra, and Justices A. M. Khanwilkar, R. F. Nariman and D. Y. Chandrachud favored permitting women to enter the temple, while Justice dissented. Indu Malhotra said that every individual should be allowed to practice their faith irrespective of whether the practice is rational or logical. The Supreme Court observed that the custom of barring women was in violation of Article 25 (Clause 1) and Rule 3(b) of Kerala Hindu Places of Worship. The petition that led to this verdict was filed by the Indian Young Lawyers Association. ➢ On November 14, 2019, The Supreme Court Constitution Bench referred the review petitions as well as the writ petitions to a larger bench of not less than seven judges, may be constituted by the Honorable . The larger bench may also consider similar cases like entry of Muslim women in a Durgah/Mosque, of Parsi women married to a non-Parsi into the holy fire place of an Agyar and practice of female genital mutilation in Dawoodi Bohra community. The decision is favored by the Chief Justice Ranjan Gogoi and Justices Ajay Manikrao Khanwilkar and Indu Malhotra. Justices and Dhananjaya Y. Chandrachud dissented.

Supreme court verdict on triple talaq

The Muslim Women (Protection of Rights on Marriage) Act, 2019 passed on 26 July 2019 after a very long discussion and opposition finally got the verdict (the Indian Supreme Court judgement of August 2017 described below) to all women. It made triple talaq illegal in India on 1 August 2019, replacing the triple talaq ordinance promulgated in February 2019. It stipulates that instant triple talaq (talaq-e-biddah) in any form – spoken, written, or by electronic means such as email or SMS – is illegal and void, with up to three years in jail for the husband. Under the new law, an aggrieved woman is entitled to demand maintenance for her dependent children. IN THE VERDICT OF AYODHYA CASE: The final judgement in the Ayodhya dispute was declared by the Supreme Court of India on 9 November 2019.[3] The Supreme Court of India ordered the disputed land (2.77 acres) to be handed over to a trust (to be created by Government of India) to build the Ram Janmabhoomi (revered as the birthplace of Hindu deity, Ram) temple. The court also ordered the government to give an alternate 5 acres of land in another place to the Sunni Waqf Board for the purpose of building a mosque.(6)

VI. Conclusion and Suggestion:

Religion occupies a vital place in the human lives. Granting religious freedom permits different beliefs, opinions, deductions that people have in accordance to their own religion, to bloom as well as develop in the society . It plays an integral part in influencing the minds and convictions of the people. It also plays an indispensable role especially in the Indian society in governing the conduct as well as the behavior of the people. Indians are extremely possessive when it comes to their religion and they become alert as soon as any person tries to hinder it or c r eat es an o b s t acl e in t h e i r jo u rn e y of r e l i g i o u s wo rs h i p . But also at the same time while discharging this fundamental right given to us, it is essential to take under advisement that it should not interfere with the peace and harmony of the society . It is important to take into International Journal of Legal Enforcement

consideration the repercussions that will take place if this right is taken for granted .To avoid any kind of future jeopardy or conjecture among our fellow mates it is pivotal to maintain some decorum while exercising this right, to understand the underlying importance and the reason for the allocation of this right, which is mainly to maintain the unity and togetherness in the country and avoid any kind of hassle on the ground of religion between our own brothers and sisters. At times citizens showing an extreme level of concern towards their religion in the due course of professing it ,end up in making the people around feel offended, which in turn might aggravate or provoke them to take steps which may also result in breach of public peace and lead to consequences creating enmity among everyone in the society. It is undoubtedly a fundamental right which the constitution guarantees for the smooth working and progress of the country, so that all the citizens have the liberty to practice the theories and tenets they believe in , and is also a right which they at any cost cannot be deprived of, but it is at the same time necessary to ensure that we act in a feasible and to be precise humane manner. Law gives all the Indian citizens the sanction to practice this right in order to strengthen the harmony and oneness in the country, but at the same time the state has the right to interfere when the abuse or any kind of wrong usage of this right is projected in front of its eyes.

6.https://ias4sure.co Retrieved on 22 June 2020