Download Law and Social Transformation in India and more Study notes Law in PDF only on Docsity!
Unit-
Law and social change
1.1 Introduction 1.2 Topic Explanation 1.2.1 Law as an instrument of social change 1.2.2 Law as the product of traditions and culture. Criticism and evaluation in the light of colonization and the introduction of common law system and institutions in India and its impact on further development of law and legal institutions in India. 1.3 Questions for self learning 1.4 Let us sum up 1.5 Glossary 1.6 References
1.0 Objectives : After studying this chapter we will be able to…..
- Understand the importance of Law as an instrument of social change.
- We will come to know that Law as the product of traditions and culture.
- We will study about the introduction of common law system and institutions in India and its impact on further development of law and legal institutions in India. 1.1 Introductions For decades now law and society theorists have been preoccupied with attempts to explain the relationship between legal and social change in the context of development of legal institutions. They viewed the law both as an independent and dependent and variable (cause and effect) in society and emphasized the interdependence of the law with other social systems. In its most concrete sense, social change means large numbers of people are engaging in group activities and relationship that are different from those in which they or their parents engaged in previously. Thus, social change means modifications in the way people work. Rear a family, educate their children, govern them, and seek ultimate meaning in life. In addition to law and social change there are many other mechanisms of change, such as technology, ideology, competition, conflict, political and economic factors, and structural strains.
1.2 Topic Explanation 1.2.1. Law as an instrument of social change. Law is the reflection of the will and wish of the society. It is said that if you want to study any society, you have to study the laws enacted by that society and you come to know whether the society is developed or wild world. The law, though it is the product of the society is responsible for the social \transformations. In fact, there are two modes of this aspect. First is, “Law changing the society”, which means that the law of the land compels the society to be changed according to it. And secondly is. “Society changes the law”, as per its needs. It needs. It means law is made by the society according to its requirement by its democratic institution i.e. Legislative or by adopting custom and usage. When law changes the society it is the sign of beginning of the development of the society. When society changes law it is the sign of maturity of the society. We can cite the enthusiasm of the people in the matter of ‘ Nirbhaya ’ where the commonest of the common was talking on how the law must be, what must be the punishment etc. here this compelled the government to consider the sentiments of the society and set up a commission to give suggestions and untimely the criminal law amendment bill came into existence. The change required in the society can be initiated by a single person also and this has been proved in India right from Raja Ram Mohan Roy; to Mahatma Phule, Mahatma Baseswar, and Mahatma Gandhi up to Anna Hazare! Thus the demand takes root and shakes up the government to either reform the existing laws or make new or even delete the existing unworthy laws. For this we will have to cite examples for the history of India. When mahatma Phule’s wife SavitribaiPhule actually started teaching in a school aimed only for girls it was considered taboo, something not good and would be affecting the society but this movement gradually became the source of law where the girls could actually study and develop. Gradually the then society thought reluctantly adopted this fact and started to send girls to school this is positive sign of beginning of the development of the society. Ultimately the girls got into colleges also. This was not only limited to the Hindu society, finally the Aligarh Muslim college also had some seats for female students studying. But no dough the lamp was lighted by the phule couple. This is the ‘Society changes the law’, But per its need, rather demands. Whereas the law play important role in changing the society too!
Inter-human relationship between Caste Hindus and Scheduled Castes was that of touch-me-not-ism as the same was thought to be polluting them i.e. the Caste Hindus. The social change in the above dogmatic stratification really called for modification in the changing and already changed social scenario following independence in 1947 and following coming in force the constitution of India. The standards of conduct of Caste Hindus were required to change in time with Constitutional Provisions. Thus modification in established patterns of inter-human relationship and standards of conduct was brought through legal means mainly the Constitution of India. The equal laws like I.P.C. (Indian Penal Code) / Cri.P.C. (Code of Criminal Procedure) / Evidence Act etc. and finally and especially through the Untouchability (Offences) Act, 1955 and the Protection of Civil Rights Act, 1955 (Amended with new name in 1976) and the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 At the beginning of industrialization and urbanization in Europe, Bentham expected legal reforms to respond quickly to new social needs and to restructure society. He freely gave advice to the leaders of the French revolution, because he believed that countries at a similar stage of economic development needed similar remedies for their common problems. However, Savigny believed that only fully developed popular customs could form the basis of legal change.
As customs grow out of the habits and beliefs of specific people, rather than expressing those of an abstract humanity, legal changes are codifications of customs, and they can only be national and never universal. There are two contrasting views on this relationship:
- Law is determined by the sense of justice and the moral sentiments of the population, and legislation can only achieve results by staying relatively close to the prevailing social norms.
- Law and especially legislation, Is a vehicle through which a programmed social evolution can be brought about. In general, a highly urbanized and industrialized society like the US law does play a large part in social change, and vice versa, at least much more than is the case in traditional societies or in traditional sociological thinking. [e.g. In the domain of interfamily relations, urbanization, with its small apartments and crowded conditions, has lessened the desirability of three-generation families in a single household. This social change helped to establish social security laws that in turn helped generate changes in the labor force and in social institutions for the aged.
The Binding force of Law Law is binding because most people in society consider it to be. Some consider the content of the law to command obedience, which, in turn, is seen as a compelling obligation. The law achieves its claim to obedience, and at least part of its morally obligatory force, from a recognition that it receives from those, or from most of those, to whom it is supposed to apply. Even when laws are against accepted morality, they are often obeyed. The extermination of more than six million Jews in Nazi Germany, clearly the most extreme instance of abhorrent immoral acts, was carried out by thousands of people in the name of obedience to the law. Milgram contends that the essence of obedience of obedience is that individuals come to see themselves as instruments for carrying out someone else’s wishes, and they therefore no longer view themselves are responsible for their actions. Under certain conditions many people will violate their own moral norms and inflict pain on other human beings, and that succinctly underlines the notion that most people willingly submit to authority and, by extension, the law
Sanctions Sanctions for disobedience to the law are surely among the primary reasons that laws have binding force. “The law has teeth; that can bite if need be, although they need not necessarily be bared.” Sanctions are relate to legal efficacy and are provided to guarantee the observance and execution of legal mandated to enforce behavior.
1.2.2. Law as the Product of traditions and culture.
Some believe that in the olden days men lived in a perfect state of happiness and such a time was golden time for man. Indian people admire “Satyug” like anything and always found lamenting that society has deteriorated in “Kaliyug” a time not so desirable and full of all sorts of deceit, conceit, cheating and fraud. According to Indian mythology man has passed through four ages (1) Sat Yug (2) TretaYug (3) DwaparYug and (4) Kali Yug. The Sat Yug was the best age in which man was honest, truthful and perfectly happy. Thereafter degeneration and deterioration began to take place. The modern age of Kali Yug is the worst period where in man is said to be deceitful, treacherous, false, dishonest, selfish and consequently unhappy. This concept is found in Hindu mythology, according to which Sat Yug will again start after the period of Kali Yug is over. But looking to various wars fought between different Kings and Emperors in those times, we come across many examples wherein deceit, treachery, falsehood,
If he decided to marry or start a business or enter his own house, he could not do so unless the Brahmin approved of the time and date.
Dr. Ambedkar always raised voice for the upliftment of the untouchable in our society. He felt that in the matter of pollution, there is nothing to distinguish the Hindus from the Primitive or ancient People.
He studied Hindu scriptures and objected to wherever he found degrading remarks against the untouchables and the Shudras. He was very strong critic of Manusmriti which prescribed various indignities for the Shudras almost in all matters of human life. Manu had made a provision for getting rid of defilement by transmission through a scapegoat namely by touching the cow or looking at the sun after sipping water. The curse of untochability has its roots too strong to be easily uprooted. The non-Hindu society only isolated the affected individuals. They did not segregate them in separate quarters. The Hindu society insists on segregation of Untochables. The Hindus will not live in the quarters of the untouchables and will not allow the Untouchables to live inside Hindu quarters.
This is a fundamental feature of Untouchability as it is practiced by the Hindus. It is not a case of social segregation, a mere stoppage of social intercourse for a temporary period. Itr is a case of territorial segregation and of a cordon sanitarium putting the impure people. The first shot to herald the freedom of the Untochables was fired by Dr. Ambedkar in 1927 at Mahad, in Kolaba district of Maharashtra.
The Kolaba district is now renamed as ‘Raigad’ to honour the memory of Chharapati Shivaji, in 1923. The Bombay legislative Assembly had passed a resolution moved by S.K.Bole, a prominent social reformer in those days. That the untouchables be allowed to use all public watering places, Wells, Schools, dispensaries etc. In pursuance of this resolution. The progressive Municipality of Mahad resolved in 1924 that the local Chowdar Tank be thrown open to the untouchables. However, the caste Hindus did not allow them to take water from the tank. This promoted Dr. Ambedkar, the liberator and the emancipator of the downtrodden, to launch an agitation to exercise the right of free access to the Chowdar Tank. In response to his call, more than ten thousands men and women assembled at Mahad on 19 March, 1927. Next day the delegates began their March from the venue of Conference to the Chowdar Tank to assert their right of drinking water from the Municipal Tank. Ambedkar was at the head of the procession. Ten thousand volunteers followed their leader in a file of fours wading through the streets of Mahad in a disciplined and peaceful manner, the procession
reached the Chowdar Tank. Dr. Ambedkar, the most gifted and qualified untouchable ever born in India, asserted the right of the suffering humanity by drinking water from the forbidden Tank. Most of the Volunteers also followed suit and vindicated their right. This was truly an historic event. Never before the so the called untouchables had demonstrated their determination to assert their right in such a glorious manner. The participants of the procession returned to their venue of Conference peacefully. Meanwhile a rumor spread that Ambedkar and his men were planning to enter into the Veerashwar temple.
The fanatic caste Hindus attacked unarmed men. Women and children and mercilessly beaten them up. The commando attack on the ‘Pandal” was followed by attacks on splinter groups of the delegates returning to their villages, in spite of all this beating and humiliation. Ambedkar advised his followers to be calm and not to retaliate. Thus first part of the epic struggle of the victims of untochbaility was over. Soon after news came that the orthodox Hindus had performed a tank purification ceremony which they thought had been polluted by Ambedkar and his people. In the meanwhile the Mahad Municipality revoked on 4 August, 1927 its resolution in accordance with which the Chowdar Tank was thrown open to the unotouchables. Hence the untouchables decided to besiege Mahad again. Accordingly Thousands of Satyagrahis reached Mahad on 2nd^ December,
- This time more than fifteen thousand untouchables turned up for the Mahad agitation
1.2.4. The Introduction of common law system and institutions in India and its impact on further development of law and legal institutions in India.
The law is often used as an instrument of social reform. The Untouchability (Offences) Act, the Hindu Code Bill. The sarda Act, the Prohibition Act are examples in this context. VidyaBushan and D.R. Sachdeva observed 15 that “Thus Law does not always lay behind the times. One great merit of law is that it adapts itself to the changing needs of society and maintains stability when the rapid alterations disturb the relations in society. Law helps the society assimilate the changes by adjusting group advantages and injuries resulting from them. Finally the law may become an advanced instrument of social change on a national as well as international level by affecting the social frame work in which relations take place. However, law is greatly in advance of or greatly behind the
Unit - Religion and The Law
2.0 Objectives 2.1 Introduction 2.2 Topic Explanation 2.2.1. Religion as a divisive factor 2.2.2. Secularism as a solution to the problem. 2.2.3. Reform of the law on secular lines: Problems. 2.2.4. Freedom of religion and non-discrimination on the basis of 2.2.5. Religious minorities and the law. 2.3 Question for self learning 2.4 Let us sum up 2.5 Glossary 2.6 References
2.0 Objective: After studying this chapter we will be able to understand the role of…
- Religion as a divisive factor.
- How Secularism is a solution to the problem of conflicts between Religions.
- Different kinds of reform of the law were introduced on secularism.
- Why Freedom of religion and non-discrimination on the basis of religion is important
- How and why law gives protection to Religion minorities.
2.1 Introduction: Religion is a social phenomenon, distinctive and each has its own centre of population. The character and right of religious observance depends upon the membership of particular social group. Religious issues often become spots of social anxiety because of competing religious sentiments. Transformations within the religion occur in the course of social development due to reformative movements, emergence of alternative faiths, rise of new leadership, impact of other cultures and efforts of modernisation. A principled distancing from religions and an approach of impartiality in treatment provide a safe walk, soberness and legitimacy
for state action. Being a component of the policy of multiculturalism, this approach sets ways and limits to law’s regulative task, and inculcates an attitude and mindset for co-existence amidst different religious communities.
2.2.1 Religion as a divisive factor:
Basically religion is for spiritual guidance of the people and hence can be a major resource for peace and social justice. It can become, as liberation theology indicates, a powerful option for the weaker sections of society. Instead religion has more often been used by powerful vested interests of which religious functionaries become apart. Worse, religious functionaries and priests themselves create powerful establishments and join hands with politicians to protect their establishments.
Religious Fanaticism (Religious fanatics) Secularism in India is based on the rich heritage and culture steeped in its various religions. The secular fabric of the country is very well reflected in the phrase ‘ Vasudhaiv Kutumbakam’ which means that the whole world is one family. India has always been an inclusive society, which has welcomed people of all religions and faiths with open arms, never discriminating among religions and never considering any religion or faith to be a threat. But this secular fabric has not meant that there is no communalism in India.
In spite of a number of laws treating people of all religions at par , India has had a long history of communal riots, the worst of them being at the time of partition of the country when blood flowed as rivers. In a land where tolerance is byword for life, when did this hatred for fellow beings arise? The answer to this question lies in the British rule of the country, particularly post-1857. Prior to 1857, the British rulers restrained themselves from interfering in the social structure of the country. Post-1857, they realized the importance of dividing the people of the country in order to weaken them. This gave rise to the ‘divide and rule’ policy, which they used, on religious lines thus distancing Hindus and Muslims.
The persistence of this policy of the British is reflected in the painful partition of the country and the displacement of a large number of people from their hearths and homes. This has continued even after the independence of the country in spite of the government being neutral as far as religion is concerned and the constitution ensuring that there is no discrimination on the basis of religion as far as employment, education etc. are concerned. This is
Thus what happens in history should not be taken as representative of religious values or religious norms, much less its cause. These massacres and killings represent nothing but lust for power and wealth by some followers of that religion. It has nothing to do with the teachings of that religion. Every religion gives us certain norms and values to improve our conduct and to make us good or even perfect human beings. It is true religion is misused by all sorts of interests and more often than not. It is sought to be misused as it strongly appeals to our emotions and can easily create feeling of ‘we’ versus ‘they’ but nevertheless it is misused and for misuse we cannot blame religion.
As Asghar Ali Engineer rightly puts it, “ Let us be very clear on one thing that no religion would be acceptable to people just because it allows killing or conversion. A religion is acceptable only if improves morality, controls basic instincts and brings about spiritual and moral change for better. It is extremely knave to believe that a religion would spread by sword”.
Religion and Terrorism
The supreme law of the land, rightly described India as a secular country in which the State has no religion, nor does it seek to promote or discourage any religion or religious belief. It guarantees a complete religious freedom, with the absence of any compulsion whatsoever in religious matters. Thus, it is obvious that the Government and people of India are secular, that is, there is no official religion. The State is committed to a policy of non-interference in religious matters.
Religion is a matter of personal beliefs and convictions. But how far are “we the people of India” secular in thought, word and deed? Upon a close observation of the working of our political parties, we shall find that candidates for elections are often chosen on communal considerations—Hindu candidates for constituencies having maximum Hindu electorate, Muslim candidates for areas where the large number of the voters are Muslims. Also we find that the voting in elections is often on communal lines; Hindus voting for Hindu candidates, Muslims for Muslim candidates and Sikhs for Sikh. Although the political parties are not formed on a religious basis, we often find that there are some distinctly communal parties in this ‘secular country’. The emerging concepts like “vote banks,” augments ‘caste’ factor and plays a decisive role in leading the followers to exercise their franchise for a particular candidate in name of religion. Religion should have no connection whatever with politics. But is it really so in India today?
Instead of creating amicability amongst the public of all the religion the fundamentalist and politicians are hand in glove. The social fabric gets destroyed by religious controversies. Once the religious fanatics or fundamentalist come face to face they destroy the balance created by these aspects. Overt act of fanatic is to cause injury to other in such a way that the enjoyment of human rights of the individual as well as the society at large is impaired. Thus leads to terrorism.
Terrorism is a global phenomenon. No doubt it has direct impact on human being, with shattering loss of right to life, liberty and physical integrity of victims. In addition to this individual loss, terrorism has destabilized Governments, weaken civil society, jeopardize peace and security, and threaten social and economic development.
The common understanding of the world ‘terrorism’ is: any organized program of individual, social groups or political groups of using force to create fear or panic. It is belief in resorting to violence for the purpose of bringing pressure on the government and non-governmental bodies and individual to agree to the view point of the perpetrators and compel all to concede to their demands.
The United Nations General Assembly in the open sessions of their 53rd meeting explained terrorism in the following words “In its wider sense, terrorism is the tactic of using an act or threat of violence against individuals or groups to change the outcome of some process of politics”
The basic question is why at all terrorism has grown so fast and steadily? Why is it a threat to the civil society? Who is responsible for the growth of terrorism is it the religious fanatics or fundamentalist or politicians or business class?
2.2.2 Secularism as a solution to the problem
Secularism is one of the important national goals. Though secularism has been an official Government policy, bulk of people in India still remain non secular. Communalism and Terrorism are big threat to secularism.
Secularism as a means of liberation from prejudices and communal frenzies has inherent competence to enhance the worth of human rights and welfare. Search for viable parameters for the appropriate triangular relations
Secularism as a modern political and constitutional principle involves two basic propositions. The first is that people belonging to different faiths and sects are equal before the law, the constitution and the government policy. The second requirement is that there can be no mixing up of religion and politics. It follows that there can be no discrimination against any one on the basis of religion or faith nor is there room for the hegemony of one religion or religion of majority sentiments and aspirations. It is in this double sense – no discrimination against any one on grounds of faith and separation of religion from politics – that our constitution safeguards secularism.
2.2.3 Reform the law on secular lines: Problems
The constituent assembly which was constituted to frame a constitution for India declared eight guiding principles of Indian constitution. Among these eight basic and guiding principles of the constitution–Secularism is placed in fifth position. To that extent the constitutional pandits gave importance for secularism. The idea of secularism is essential to maintain unity in diversity. Secularism is a basic ideology for the effective functioning of a healthy Democracy. When the Indian constitution was adopted in January 1950, it has got sufficient provisions to promote secularism. The Constitution of India firmly believes in the principle of secularism.
The founding fathers of the Indian Constitution never hesitated to build India on secular foundations. They opposed and defeated the amendment of Mr. H. V. Kamath to invoke the name of god in the preamble of the Constitution. Pandit Kunjru said that we invoke the name of God, but I am bold to say that while we do so, we are showing a narrow, sectarian spirit, which is contrary to the spirit of the Constitution. The Indian Flag consists of Ashoka Chakra in its center. The wheel has many spokes but, all are of equal length. It indirectly refers to the Indian stand on the principle of equal treatment of all religions. ( Sarva Dharma Sambava ).
Although, the word ‘Secular’ was not there initially in the constitution, a mere perusal of the various articles of it would amply demonstrate that ‘Secularism’ is an integral part of the Indian constitution. At this juncture, it would not be inappropriate to have a glance at the relevant constitutional provisions pertaining to secularism. Article 14 of the constitution provides for equality before law for all people. Article 15, inter alia , lays down that the state shall not discriminate any citizen on the ground of religion. Article 16 provides for equality of opportunity in matters of employment under the state,
irrespective of religion. Article 25 provides for freedom of conscience and the right to profess practice and propagate the religion of one’s choice.
The constitution not only guarantees a person’s freedom of religion and conscience, but also ensures freedom for one who has no religion, and it scrupulously restrains the state from making any discrimination on grounds of religion. Article 26 provides freedom to manage religious affairs and Article 27 prohibits compulsion to pay taxes to benefit any religious denomination. The impact of Secularism can also be seen in Article 28, which states that no religious instruction shall be provided in any educational institution wholly maintained out of state funds. The analysis of the above said constitutional provisions makes it amply clear that Indian secularism is unique and it treats all religions alike. In our country, judiciary is the guardian of the constitution and it has been held by the Supreme Court that secularism is a basic structure of the constitution and it cannot be altered by a constitutional amendment.
Before looking into the Articles in the Constitution that are supposed to interpret the idea of secularism, it will be worthwhile to look into one important judgment given by the Supreme Court of India viz. Kesavananda Bharati vs. Kerala case which was decided by a full Constitutional bench of judges on April 24, 1973. By a water-thin majority of 7-6, the Supreme Court held that the power to amend the Constitution under Article 368 couldn’t be exercised in such a manner as to destroy or emasculate the fundamental features of the Constitution. In identifying the features, which are fundamental and thus non- amendable in the constitution was this statement – A secular State, that is, a State in which there is no State religion (5(vii)). This was (probably) the first time that the concept of secularism was interpreted by the Supreme Court. Here we get the first authorized interpretation of the word “secular” as mentioned in our Constitution. So our basic idea of being a secular state is that we do not have a ‘ S tate religion ’.
“…THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVERIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its citizens…”. So we have decided that we will create India as a secular state. The only other place where the word secular appears in our Constitution is in Article 25 (2) (a) while discussing the “Right to freedom of religion”.
What is problematic in this context is the absence of a proper definition of secularism. How can we interpret the term secularism? Do we interpret it as the complete detachment of state from religious activities or do we accept the
or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly."
Accordingly Article 25 protects two freedoms:
(a) freedom of conscience, (b) freedom to profess, practice and propagate religion. The freedom of conscience is absolute inner freedom of the citizen to mould his own relation with God in whatever manner he likes. When this freedom becomes articulate and expressed in outward form it is to profess and practice religion. To profess religion means to declare freely and openly one's faith and belief. To practice religion is to perform the prescribed religious duties, rites and rules. To propagate means to spread and practice his view for enlightening others. The right to propagate one's religion is not a right to convert other to one's own religion.
Article therefore postulates that there is no fundamental right to convert another person to one’s own religion, ‘because if a person purposefully undertakes the conversion of another person to his religion as distinguished from his effort to transmit or spread the tenets of his religion that would impugn on the freedom of conscience guaranteed to all citizens of the country alike’; as decided in Rev. Stainialaus v. St. of Madhya Pradesh (AIR 1977 SC 908)
The Supreme Court in Punjab Rao v. D. P. Meshram, (AIR 1966 SC 1179) expresses that, the right is not only to entertain such religious belief as may be approved by his judgment or conscience but also to exhibit his sentiments in overt acts as are enjoyed by religion. In the words of the Article, he may “profess a religion means the right to declare freely and openly one's faith.” And in Ratilal Panachand Gandhi v. State of Bombay , (AIR 1954 SC 388) declares that he may freely practice his religion; “Religious practices or performance of acts in pursuance of religious belief are as much a part of religion as faith or belief in particular doctrines”.
Rituals and observances, ceremonies and modes of worship considered by a religion to be its integrals and essentials part are also secured. What is integral and essential part of a religion or religious practice has to be decided by the Courts with references to the doctrine of a particular religion include practice regarded by the community as part of its religion as put forth by the honourable Supreme Court in Seshammal v. state of Tamil Nadu , (1972) 2 SCC 11. Again in Ratilal, the SC states that, he may propagate freely his religious views for the edification of others. It is immaterial also whether a person makes the propagation in his individual capacity or on behalf of some church institution.
If one makes an attempt to look at the secular aura in our Constitution, the only point to reach is Article 25, which refers “Right to freedom of religion”. It reads thus– “Freedom of conscience and free profession, practice and propagation of religion – (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion”.
In Bijoe Emmanuel v. State of Kerala (AIR 1987 SC 748) also known as National Anthem case, the Supreme Court has upheld the religious belief of the Jehovahs witness, a Christian community not to praise anybody but for his or her own embodiment of God. In this case the children of Jehovahs witness were expelled from the school for refusing to sing the National Anthem. The Supreme Court held their religious practice was protected under Article 25. Chinnappa Reddy, J., observed “that the question is not whether a particular religious belief or practice appeals to our reason of sentiment but whether the belief is genuinely and conscientiously held as part of the profession or practice of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the limitations contained therein”.
The Indian constitution provides for the individual as well as collective freedom of religion. The basic guarantee of this right of individual freedom is in Art. 25 (1). This freedom extends to all persons including aliens underlined by Supreme Court in Ratilal Panchand vs. State of Bombay. The Indian Constitution makes freedom of conscience as well as right to freely profess, practice and propagate religion subject to state control in the interest of public order, morality and health.
But Supreme Court has made it clear that state can have no power over the conscience of individual – this right is absolute. The Indian Penal Code (sections 295-8) makes it a crime to injure or defile a place of worship or to disturb a religious assembly etc. even though these actions might be sanctioned by offender’s own religion. Practices like devadasi, sati may have religious sanctions but the state still has constitutional power to ban them. Art. 25(2) grants to the state broad, sweeping powers to interfere in religious matters. This reflects peculiar needs of the Indian society. The extensive modification of Hindu personal law has been by legislation based on this provision. Art. 25(2) thus authorizes the state to regulate any secular activity associated with religion, to legislate social reforms.
