View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Etheses - A Saurashtra University Library Service Saurashtra University Re – Accredited Grade ‘B’ by NAAC (CGPA 2.93) Joshi, Paras H., 2010, Analytical Study of Inter-relationship Between Religion and Law with Special Reference to India, thesis PhD, Saurashtra University http://etheses.saurashtrauniversity.edu/id/eprint/198 Copyright and moral rights for this thesis are retained by the author A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This thesis cannot be reproduced or quoted extensively from without first obtaining permission in writing from the Author. The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the Author When referring to this work, full bibliographic details including the author, title, awarding institution and date of the thesis must be given. Saurashtra University Theses Service http://etheses.saurashtrauniversity.edu [email protected] © The Author ANALYTICAL STUDY OF INTER-RELATIONSHIP BETWEEN RELIGION AND LAW WITH SPECIAL REFERENCE TO INDIA A Study Submitted For Award Of Degree For Doctor of Philosophy BY JOSHI PARAS HARSHADRAI (B. Com., LL. M.) GUIDE Dr. B G. MANIYAR (LL. M, Ph.D ) PROFESSER DEPARTMENT OF LAW SAURASHTRA UNIVERSITY RAJKOT- 2010 Ph. D. Registration No. 3150 Date : 28/ 04 / 2003 CERTIFICATE This is to certify that the thesis entitled ‘ANALYTICAL STUDY OF INTER-RELATIONSHIP BETWEEN RELIGION AND LAW WITH SPECIAL REFERENCE TO INDIA’ submitted by Smt. Joshi Paras Harshadrai to Saurashtra University towards partial fulfillment of the requirements for the award of the degree of Ph. D. in law is a bonafide record of the work carried out by her under my supervision and guidance . To the best of my knowledge and belief, it contains no material previously published or written by another person nor material which has been accepted for the award of any other degree or diploma of the university or other institute of higher learning, except where due acknowledgment has been made in the text. Dr. B. G. Maniyar Place : Rajkot Department of Law, Saurashtra University, Date : / / 2010 Rajkot-360 005 DECLARATION “ I hereby declare that, I Paras Harshadrai Joshi has prepared this thesis, ANALYTICAL STUDY OF INTER-RELATIONSHIP BETWEEN RELIGION AND LAW WITH SPECIAL REFERENCE TO INDIA- under the able guidance of Dr. B. G. Maniyar for the Ph. D. degree in Law studies . This submission is my own work and that , to the best of my knowledge and belief, it contains no material previously published or written by another person nor material which has been accepted for the award of any other degree or diploma of the university or other institute of higher learning, except where due acknowledgement has been made in the text. Place : Rajkot Date : / / 2010 (P. H. Joshi) ACKNOWLEDGEMENT I have grate pleasure to express my deep sense of gratitude and sincere thanks to my philosopher and honorable guide Dr. B. J. Maniyar, Associate Professor, Department of Law, Sau. Uni., Rajkot for his valuable guidance, persistent encouragement, keen interest and his untiring and ever willing help during the course of this investigation and preparation of this manuscript. I have express my sincere thanks and respect to the Dr. Kamlesh Joshipura Vice chanceller, Kalpak Trivedi, Ex-PVC, Dr. N. K. Indrayan, Head, Department of Law, Dr. Raju Dave, Dr. D. G. Modi, Principal, Junagadh Law College who provided with their able guidance . I owe my profound thanks to Shilpa M. Trivedi Principal, Junagadh Kelavani Mandal sanchalit Commerce and BBA College and Staff members of Law College Lataben Kariya, P. M. Makati, Prafulbhai M. Parmar and Rekhaben Kumbhani. At last but foremost, I express deepest sense of gratitude to my beloved Father Shri. Harshadray , Mother Smt. Hansaben, my Mother in law Late, Smt. Arunaben , Father in law Shri. Jayantilal and my sisters Puja, Sonal, Kajal, Janki and My brother in law Sumit khorasiya for their Patience, lasting love, personal sacrifice, continued and inspiration throughout the period of study without which this study would not been a reality. All my success is the result of their prayers and blessing. Last but not least, How can I forgot to thank my loving husband Jignesh J. Vaid, without whose care, true feelings and love this work was an impossible task for me. He abandoned his dreams to make my dreams come true. I must thank him with a humble heart. And of course my two sweet little angles, Karan and Dev, who will carry on my jest for life and thoughts, always remained with me. A million thanks to GOD, the almighty who made me do this task and made every job a success for me. Place: Rajkot Date: / /2010. (P.H.Joshi) CHAPTER 1 INTRODUCTION 1.1. Varying Models of Religion - State Relations 3 1.1.1First Model 1.1.2. Second Model 1.1.3. third model 1.2. Religion- State-Law scenario in India 8 1.2.1. Historical Perspective 1.2.2. Religio-Legal Pluralism CHAPTER II RELIGION UNDER INTERNATIONAL HUMAN REGHTS LAW 2.1. Ensuring Religious Equality & Freedom 11 2.1.1. Universal Declaration of Human Rights 1948 2.1.2 International covenants of 1966 2.1.3. UN Convention on rights of the child 1989 2.2. Eliminating Religious Intolerance and Discrimination 15 2.3. Protecting Identity and Rights of Religious Minorities 19 2.4. Reporting on Religious Freedom Situation Worldwide 24 2.4.1. UN Rapporteur on Religious Freedom 2.4.2. US Law on International Religious Freedom CHAPTER III RELIGION UNDER CONSTITUTION AND RELATED LAWS 3.1. The Indian Concept of Secularism 26 3.1.1. Declaration of Secularism 3.1.2. Proposed Amendments 3.2. General Constitutional Provisions on Religion 29 3.2.1. Equality & Non-Discrimination 3.2.2 Freedom of Religion 3.2.4. Relaxation of Rights 3.2.5. Fundamental Duties 3.2.6. Religious Matters under Distribution of Powers 3.2.7. No Role for Religion in Elections 3.2.8. Judicial Interpretation 3.3. Community-Specific Constitutional Provisions 37 3.3.1. Nature of Special Provisions 3.3.2. Provisions for Hindus, Buddhists, Jains & Sikhs 3.3.3. Provisions for Mainly Christian Groups 3.3.4. Religious Establishments 3.3.5. Religious Holidays and Processions 3.4. Religion under Laws for Scheduled Castes & Tribes 40 3.4.1. Scheduled Castes Order 1950 3.4.2. Conversion by a Scheduled Caste Member 3.4.3. Scheduled Tribes & OBCs 3.5. Majority-Minority Status of Religious Communities 43 3.5.1. Minorities Commissions Laws 3.5.2. Who are Religious Minorities 3.5.3. State Laws 3.6. Legal Prohibition of Using Religion in Elections 47 3.6.1. Statutory Provisions 3.6.2. Judicial Interpretation CHAPTER IV RELIGION UNDER LEGISLATION OF GENERAL APPLICATION 4.1. Laws on Religious Conversion & Apostasy 51 4.1.1. Old Anti-Conversion Laws 4.1.2. Orissa & Madhya Pradesh Laws 1967-68 4.1.3. Arunachal Pradesh Law 1978 4.1.4. Gujarat, Rajasthan, Chhatisgarh & Himachal Pradesh Laws 2003-06 4.2. Laws on Religious & Communal Offences 54 4.2.1. Indian Penal Code 1860 4.2.2. Code of Criminal Procedure 1973 4.2.3. Armed Forces Laws 1950 4.2.4. Orissa Communal Offenders Act 1993 4.2.5. Communal Riots Bill 2005 4.3. Religion under Miscellaneous General Laws 60 4.3.1. Central Laws 4.3.2. State laws 4.4. Religion-based Exemptions under General Family Laws 63 4.4.1. Uniform Civil Code & Personal Laws 4.4.2. General Family & Succession Laws 4.4.3. Community-specific Family & Succession Laws 4.5. Religious Places Construction, Use & Preservation Laws 81 4.5.1. Religions Places Construction Control Laws 1954-97 4.5.2. Religious Institutions (Prevention of Misuse) Act 1988 4.5.3. Places of Worship (Special Provisions) Act 1991 4.5.4. Monument Preservation Laws 4.6. Religious Places & Pilgrimage Management Laws 85 4.6.1. General Laws on Religious Endowments & Trusts 4.6.2. Bihar & Orissa Law on Pilgrimage 4.6.3. Community-Specific Laws CHAPTER V COMMUNITY-SPECIFIC LAWS ONRELIGIOUS AFFAIRS 5.1. Religious Demography of India 87 5.1.1. National & State-Level Situations 5.1.2. Population Data 5.2. Legal Identity of Religious Communities 92 5.2.1. Constitutional Terminology 5.2.2. Hindus, Buddhists, Jains & Sikhs 5.2.3. Muslims, Christians, Parsis & Jews 5.3. Special Laws for the Hindus 95 5.3.1. Characteristics & Denominations 5.3.2. Constitutional Provisions 5.3.3. Hindu Religious Beliefs & Practices Commission of Sail 5.3.4. Hindu Shrines & Pilgrimage 5.3.5. Family Law & Succession 5.4. Special Laws for the Muslims 121 5.4.1. Characteristics & Denominations Nomenclature 5.4.2. Constitutional Provisions 5.4.3. Muslim Religious Beliefs & Practices 5.4.4. Muslim Shrines & Pilgrimage 5.4.5. Muslim Family Law & Succession 5.5. Special Laws for the Christians 143 5.5.1. Characteristics & Denominations 5.5.2. Constitutional Provisions 5.5.3. Christian Religious Beliefs & Practices 5.5.4. Christian Religious Places & Organizations 5.5.5. Family Law & Succession 5.6. Special Laws for the Sikhs 152 5.6.1. Characteristics & Denominations Characteristics 5.6.2. Constitutional Provisions 5.6.3. Sikh Religious Beliefs & Practices 5.6.4. Sikh Religious Places 5.6.5. Family Law & Succession 5.7. Special Laws for the Buddhists 158 5.7.1. Characteristics & Denominations 5.7.2. Constitutional Provisions 5.7.3. Buddhist Religious Places 5.7.4. Family Law & Succession 5.8. Special Laws for the Jains 162 5.8.1.