Religious tolerance is founded in both law and tradition in India, which is a country of religious and cultural diversity. Throughout India’s history, religion and cultures have played a significant role in the country’s society. The overwhelming majority of Indians have a religious affiliation.
According to the Indian census, Hinduism is practiced by 80.5 percent of the population. Islam is the second most common religion, with 13.4% of the population following it. Christianity is the third most common religion, with 2.3 percent of the population. Sikhism is India’s fourth largest religion, with 1.9 percent of the population. Apart from the presence and birth of native religions, assimilation and social integration of religions brought to the area by merchants, travelers, refugees, and even invaders and conquerors has resulted in the current plurality of religious belief systems in India. “However, the most significant aspect of current Hinduism is its establishment of a non-Hindu State, in which all religions are equal,” John Hardon writes, citing Hinduism’s hospitality to all other religions.
Buddhism and Jainism are two other native Indian religions. The Shramana religions and the Vedic religions were two intellectual currents of thought in ancient India, parallel traditions that coexisted. Modern Hinduism is a continuation of the Vedic tradition, while Buddhism and Jainism are continuations of Shramana traditions. These intertwined cultures have had a shared influence. Zoroastrianism and Judaism both have a long tradition in India, and each has thousands of followers.
Religious tolerance is practiced at the highest levels of government in India. The Indian Constitution declares the country to be a sectional republic, which means it must protect citizens’ freedom to freely worship and spread any religion or faith (with activities subject to reasonable restrictions for the sake of morality, law and order, etc). The right to freedom of religion is also declared a fundamental right in India’s constitution.
While inter-religious marriage is not commonly practiced, Indian citizens are generally respectful of each other’s religions and maintain a sectional outlook. Intercommunal conflicts have received little support from the general public, and it is widely assumed that the causes of religious conflicts are political rather than ideological.
Law
The Indian Constitution’s preamble declared India to be a “sovereign socialist secular democratic republic.” The Forty-second Amendment Act of 1976 added the term “secular” to the Preamble. It requires that all religions be treated equally and that they be tolerated. India has no official state religion, but it does accept the freedom to practice, preach, and spread any religion. Government-supported schools do not have religious instruction. The Supreme Court of India held in S. R. Bommai v. Union of India[1] that secularism was an integral tenet of the Constitution.
According to the Indian Constitution, the right to freedom of religion is a fundamental right. As a Directive Principle, the Constitution recommends a uniform civil code for its citizens. However, since Directive Principles are unenforceable under the Constitution, this has not yet been applied. In Pannalal Bansilal v. State of Andhra Pradesh,[2] the Supreme Court further held that enacting a uniform civil code all at once could be detrimental to the nation’s unity, and that only a gradual, progressive reform should be enforced. The Supreme Court rejected a petition seeking a writ of mandamus against the government to enforce a common civil code in Maharishi Avadesh v. Union of India[3]. Major religious groups continue to be regulated by their own personal rules. Hindus, Muslims, Christians, Zoroastrians, and Jews all have personal laws. Brahmoism is the only Indian religion that has been strictly protected by India’s secular (“civil”) law since Act III of 1872. Buddhists, Jains, and Sikhs are considered Hindus in legal terms and are subject to Hindu personal law.
Family law
In India, various religions have different family Codes, and there is no Uniform Civil Code. Warren Hastings established provisions prescribing Hindu law for Hindus and Islamic law for Muslims for personal matters litigation during the British Raj, and this scheme of separate laws for each religion started in 1772. Following independence, however, attempts were made to modernize different aspects of personal law and introduce religious uniformity.
Warren Hastings began the codification of these personal laws because they were mixed with morality and religious values, and their languages were foreign to Britishers.
Since each group was divided into separate sects and subsects, several issues arose during the codification of these rules. Jains, Sikhs, and Buddhists were the three types of Hindus. Muslims were split into two groups: Shia and Sunni. They were also divided into Schools of Law, which regulated them. For example, there are four schools of law in Muslim law: Hanafi, Shafi, Hanbali, and Maliki. The two schools of Hindu law are Mitakshara and Dayabhaga.
Ms. Jorden Diengdeh v. S.S. Chopra
The issue of uniformity in personal marriage laws was presented in Ms Jorden Diengdeh v. S.S. Chopra[4]. The Supreme Court noted that laws relating to marriage, such as judicial separation and divorce, are not universal. It also stressed the importance of applying uniform rules such as irreversible dissolution of marriage and mutual consent for divorce to all situations, regardless of religion. The Court mentioned the need for a Uniform Code for marriage and divorce when it ordered that a copy of its judgment be submitted to the Ministry of Law and Justice.
Custody and guardianship laws, adoption laws, succession laws, and laws related to domestic abuse and child marriage are all fields where change has recently occurred.
Article 25 v. Article 44
Article 25 of the Indian Constitution is a significant impediment to the adoption of the Uniform Civil Code. The adoption of the Uniform Civil Code is opposed by the country’s minorities, who invoke Article 25 as a defense.
Article 25 of the Constitution guarantees religious freedom, which is a fundamental right. An individual is free to practice and spread his or her chosen religion under this Article. Religious traditions that are prevalent in community personal laws are continued to be practiced. These communities argue that Article 25’s right to freedom of faith allows them to manage personal laws according to the laws of their culture. The adoption of the Uniform Civil Code is being questioned as a breach of Article 25 of the Constitution. Article 44 is merely a Directive Principle of State Policy that is not enforceable in courts, whereas Article 25 is a Fundamental Right that is.
“Secular operations, on the other hand, are not covered by Article 25. The state, not the faith, is in charge of dealing with sectarian activities. Personal laws are included in this exception, according to proponents of the Uniform Civil Code. It’s important to note that divorce, adoption, and inheritance are all legal problems, not religious ones.
For better applicability of constitutional laws, these issues may be differentiated by religion. It is preferable to keep law and religion apart. This has been a long-running controversy. The need for a Uniform Civil Code, on the other hand, cannot be ignored.”[5]
Applicability of Hindu Marriage Act to different Categories of People
Sections 2 of the Hindu Marriage Act, 1955 and 3 of the Hindu Succession Act, as well as sections 3 of the Hindu Minority and Guardianship Act, and section 2 of the Hindu Adoption and Maintenance Act, are all pari materia. When section 2 states that the Hindu Marriage Act applies to someone who is a Hindu, it also includes people who were Hindus at the time of their marriage but are no longer Hindus at the time of filing a petition under the Act.
Section 2 (1): The Act extends to anyone who professes to be a Hindu, regardless of whether he practices Hinduism in its orthodox Brahmanic or Vedic forms or in any other form or creation. Hindus are Hindus regardless of their sects or cultures. Even if a person becomes a Vaishnav or a Lingayat, he remains a believer in Hindu deities, even if he chooses to pray to one or more of them. Similarly, a Hindu may enter the Brahmo, Arya, or Prarthana samaj without relinquishing his right to be governed by Hindu law. The Act is made comprehensive and applicable to all sects and cultures that have evolved from Hinduism, whether or not they follow the Brahmanical religion.
Clause (a) of sub-section 1 of section 2 of the Act explicitly addresses certain Hindu religious innovations and clarifies that the Act is made applicable to members of these different Hindu religious systems.
Section 2 (1) (b): This Act applies to those who are religiously affiliated with the Sikh, Jain, or Buddhist faiths. The Indian Constitution’s authors recognized that the term “Hindu” encompasses all adherents of these religions in its broadest sense, so they made it clear in explanation II of Article 25 that any reference to Hindus includes any reference to an individual who practices Buddhism, Jainism, or Sikhism.
Except for Hindu law, there is no special personal law that applies to Buddhists, Jains, or Sikhs. Since Buddhists in India cannot be governed by Buddhist personal law in any other country, they must be governed by Hindu law unless they relocate to a country where Buddhist personal law exists and follow it. In the absence of customs varying certain rules, Indian courts have often applied Hindu law to Jains. In the case of Sikhs, British courts have ruled that they should be treated as a group of Hindus descended from whom they are a descendant.
Cases: Ramesh Kumar v. Kannapuram Gram Panchayat[6]
Will a visitor who visits India and marries according to Hindu rites be considered to have married under the Hindu Marriage Act and regarded as such? The Japanese lady married a Nair man and was a Buddhist. The court ruled that the lady did not live in India and that her marriage was not a Hindu marriage, so the HMA did not apply to her. And, under section 2 (1) (b) and sec 2 (3), the woman cannot be defined as Hindu .
Under this clause, a Buddhist who is a foreign citizen may be considered a Hindu, but the Act does not extend to him because his domicile is not in one of the territories protected by the Act.
Section 2 (1) (c): This clause defines the term Hindu in a negative and inclusive manner, including someone who is not a Muslim, Christian, Parsi, or Jew by religion; however, this act would not apply to him if he proves that he would not have been governed by the rules of Hindu law or any customs or usages as a part of that law in respect of any matter dealt with under the Act.
Case: Chitralekha Shibu Kunju v. Shibu Kunja[7]: The marriage could not have been solemnized under the HINDU MARRIAGE ACT because Section 5 requires that both parties be Hindus at the time of marriage, and thus the wife’s petition under Section 9 for restitution of conjugal rights cannot be granted because Section 2 specifies who is a Hindu for the purposes of applicability of the Act and one of the parties is not Hindu.
Section 2 (1)
Explanation a.: Children of both Hindu parents
By religion, this explanation determines who are HINDUS, JAINS, BUDDHISTS, and SIKHS. Any boy, legitimate or illegitimate, whose both parents are HINDUS, JAINS, BUDDHISTS, SIKHS would be ipso facto HINDUS, JAINS, BUDDHISTS, SIKHS by religion, according to this explanation.
Explanation b.: Children of one Hindu parent
It stipulates that any child, whether legitimate or illegitimate, whose one parent is a HINDU, JAIN, BUDDHIST, or SIKH, and who is raised as a member of the caste, class, party, or family to which such parent belongs or was belonging, is given the status of a Hindu.
https://lawaddiction.com/law-morality-and-live-in-relationships-jurisprudential-analysis/
Case: Maneka Gandhi v. Indira Gandhi[8].
If a son is born to a Parsi father and a Hindu mother, the son is considered to have been raised in a Parsi manner, and thus Hindu rules do not extend to his marriage and other matters. Sanjay Gandhi was brought up in a Hindu household and married according to Vedic rituals, according to the court. The court also claimed that while Parsi children go through a navjaat ritual, Sanjay Gandhi has not gone through such ceremonies, suggesting that he is obviously a Hindu.
Section 2 (1) (c): By this provision, someone who converts or reverts to the HINDUS, JAINS, BUDDHISTS, or SIKHS religion is considered an HINDUS, JAINS, BUDDHISTS, or SIKHS. For example, if a foreigner professes a theoretical allegiance to the Hindu faith or is an enthusiastic admirer and promoter of Hinduism and traditions, he will not become a Hindu. However, if he stays in India for a long time and abdicates his faith by a simple act of renunciation, converts to Hinduism by undergoing formal conversion, abandons his Christian name in favor of a Hindu name, and marries according to Hindu religious rites, he will be considered a Hindu. An individual who is Hindu by race and religion and separates himself from his old environment and adopts the Hindu way of life may be considered a Hindu by the court. Whether there has been conversion or re-conversion is a matter of fact that must be decided on a case-by-case basis, with the court taking into account various considerations such as whether or not necessary ceremonies have been conducted.
Case: D. Morarji v. Administrator General of Madras[9], P. B. Fanindra Dev v. Rajeshwar Das: The court stated that the family in this case was of non-Hindu descent, but the judges did not address whether the members of the family later converted to Hinduism. It was decided that if its members converted to Hinduism, they would be governed by Hindu Law unless a special custom could be shown. In cases where a European or Indian Christian converted to Hinduism and married a Hindu by religion within the context of Hindu Law, there is no need to prove that religious ceremonies were performed in order to establish conversion to Hinduism.
Hindus who have renounced Hinduism and then return to it by reconversion, with or without the performance of rites of expiation or reconversion, are regulated by Hindu Law and, as such, by the HMA. The community’s dominant opinion and use, as well as its acceptance or disapproval, should be used to determine if conversion and reconversion have occurred.
Hindu law is one of the oldest rules in the world’s legal history. Hindu law has developed as a way of life, and with the introduction of Vedic Shastras and Manu’s Scripts, Hindu law has played a major role in the formulation of modern laws. It rules not only Hindus, but also a significant number of Jain, Buddhist, and Sikhs. Personal laws for various religious groups in India were also formulated as a result of Hindu law.
REFERENCES
[1] 1995 SCC 3.
[2] 1996 SCC (2) 498.
[3] 1994 SCC.
[4] AIR 1985 SC 935.
[5] The Constitution of India, 1950,art. 25,44.
[6] AIR 1998 Ker 1995.
[7] 1998 (1) BomCR 710.
[8] AIR 1985 Delhi 114.
[9] (1928) 55 MLJ 478.
BY PALAK AGARWAL | HIDAYATULLAH NATIONAL LAW UNIVERSITY