Rostrum’s Law Review | ISSN: 2321-3787


  1. Introduction:

The concept of justice is above all benevolent and innovative idea of law by the law and for the law.  Many jurists have tried to define justice but one can hardly reach the object that it has to serve. In that way, one can consider justice as ever ever-evolving concept which will grow as society grows.

The growth of law depends upon the element of mind applied by the legislature, the judges and the society while creating the law, interpreting the law and implementing the law. In this sense, the words drafted by the legislature express the intentions which per se are clear from the language they use. The role of the judiciary is paramount in analyzing the ideas with its spirit and soul. The concept of what is beneath the surface is of less importance than the question of what beneath the justice is with an obvious reason that the shells of justice flowed from the situations, personalities, attitudes, policies and governance.

Nowadays every nation is governed by constitutional and legal norms. These norms are largely governing relations of individuals to individuals, organizations to organization and society to society. Hence it would not be wrong to say that, laws are a tool through which justice can be achieved. It’s indeed remained a norm to change society and tools to achieve the highest goal of humanity i.e. justice.

Among the several approaches to the idea of justice, one remained the human values. Human values can be largely reflected in to paramount law of the nation i.e. the Constitution and its median laws set forth systematically to achieve the normativity. May it be concerning rights and duties of individuals, liabilities and obligations of the states especially in the context of fundamental rights of citizens. We must therefore analyze critically the concept of rights of religious rights, duties of the citizens and liabilities and obligations of the state in promotion of it.

However, when one says the religion which remains the sine qua non for “Dharma” gives birth to the argument as to what else makes the difference between religion and law. In that sense, more specifically one could say, “Whether religion (Dharma) prevails over law or law prevails over the religion”. John W. Morden, in his work “An Essay on the Connections between Law and Religion” nicely referred to a story which show the secular nature of the judicial process. The charge against the accused was theft of money. At the end of the evidence the accused addresses the judge as follows: “Your Honour, as God is my judge, I did not take the money”-to which the judge replied: “He’s not. I am. You did”. “He’s not. I am. You did”.[1]

The secular nature of law and the secular judicial process may be two different facet of justice. However, this conceptual segregation does not allow one to get rid from inquiry about the nature of law and dharma in terms of morality. Accordingly, an inquiry into the relationship between law at one hand and morals and religion on the other often takes the course of asking a broad question along the following general lines. Such as whether religion is an instinct of law or law is the instinct of religion?, Can socio-religious inclusivity be use as a moral value approved by the law to put into action as a beneath surface for achieving the justice? What is the extent to which law may be use to enforce legal, moral or religious values?[2] Moreover, what is the role of state in maintaining the religious freedoms, constitutional rights of individuals and the expectations of societal minorities?

  1. An Instinct of Law and Religion:

Moving to the first argument, whether religion is an instinct of law or law is the instinct of religion? . In the context of Tadic Vedic life, four goals of life have been accepted: dharma, artha, kãma and moksa (liberation).[3]

From the point of view of Western philosophers like Roscoe Pound, who leader of the American school of sociological jurisprudence has tried to answer the query by saying, . At the beginning of the law, these are not differentiated. Even in so advanced a civilization as that of the Greek city-state the same word is used to mean religious rites, ethical customs, the traditional course of adjusting relations, and the legislation of the city, and all of these looked on as a whole; as we should say, including all these agencies of social control under the one term which we now translate law.

As long ago as 1882 Sir Frederick Pollock pointed out the similarity between the role originally played by the Hindu texts and that of Roman law in mediaeval Europe: The Roman law was said to be the common law of the Empire, but its effect was always taken as modified by the customary law of the country or city.

The study of the history of the sources of law has been affected far more than is usually realized by the commoner models of modern legal systems. The Justinian Code developed in Rome, the common law system developed in England, and The Hindu Code Bill 1953, all are part of customary law based on the practices that prevailed at the time in respective territories. So it won’t be wrong to say that, on many accounts, the journey of progression of law has initiated from the texts of religious writings. This is not the case only with India; almost all civilized societies began from the principles of dharma which modernized the principles in the form of law. Hence the question, of whether dharma originates from law or law originates from dharma reveals that the progression of society happened from dharma to law. In such a way the law is the modernized version of religious texts.

  1. Socio-Religious Inclusivity and Moral Values:

Regarding the second issues, can socio-religious inclusivity be use as a moral value approved by the law to put into action as a beneath surface to the justice? In fact, Morality, law and society are closely connected. The law is merely a social instrument to control the society closely monitored by extra standards set by the morality and political accessibility. The Government at present time has multifaceted role to perform. Nevertheless to the claim to have the equal rights for all, the approval of moral values and its implementation in the legal instrument ability is an essence for the adherence of the justice. The claim for legislative reform in to the modernize way of religious rights demands the legal sanctity. Legality of the thing is required to characterize the law for long term legacy and acknowledgement to the religious life of an individual which to the large extent legitimize for specific communities among the Hindus. Beyond the idea of legal sanctity, the idea of religious inclusivity must be the social aim to secure, adhere, maintain and enhance to enhance the spirit of brotherhood and religious rights. The existing discourse of the close bracketed society with restricted exercise of religious rights for large number of people leads toward the inquiry of the morality legally expected at both the end.

The Constitution of India does not define,’ religion. It does not shed any colour as to how you interpret the term religion. Indeed, on a number of occasion Supreme Court of India had occasion to interpret the term religion. Referring to the judgement given in the case of state of Madrass V Shri.Laxmindra Tirta Swamiar of Shri Shirur Mutt in the 1954 a seven-member bench of Supreme Court emphasised on religion as a way of life and legitimate its own in election campaign.[4]

The question can a religion be used as a manifesto in elections is the most important issue nowadays. No doubt rituals and practices are integral parts of religion but traditionally stepped into the manfield of trying to define religion as a way of life and not the way of life of the state. India is one of the largest democracies in the world and as pointed out in the Constituent Assembly Debate, a secular state was the inevitable foundation of liberal democracy.[5] The article 25 of Constitution of India nicely balances the interests of individuals and the interests of the state. At one point in time, this article allows the person individual to promote his relation with God and at another point in time it empowers the government to regulate the relations between individuals and individuals in the name of public order morality and health. The project also allowed the state to regulate economic, financial, political or other activities associated with religious practices and to provide for social welfare under the form of religious institutions of public characters to all classes and sections of Hindus.[6] However it is also expected from the government, while doing so the principle of equality neutrality and individual liberty must not be compromised. In that way, the secularism introduced by the Indian Constitution is not to distinguish between the temple and the state but to see the harmony for regulation of individual relations, finance, public order, morality and public health.

The term morality used under Article 25 has no connection with the term morality in general. Morality and religion cannot be separated in the sense that every religious practice, custom, and religious action is required to be moral. On several occasions, the Supreme Court tried to convince that morality in general and the morality given in Article 25 of the Indian Constitution have two different facets. The former deals with individual morality and the latter deals with constitutional morality. The religious beliefs and practices of individual contribute to their moral outlook. It often embodies the principles which serve the guidelines to the society to spend their life. The social dynamics and increased emphasis on the right to equality make the word “morality” more concrete, legal and particular. Both these moralities remain beneath the surface as a value for individuals and state together. However, it is to caution that, these are not for interchange.

  1. Can law Enforce Religious Values?

Regarding the third issue, i.e what is the extent to which law may be used to enforce religious or moral values? This argument creates a space to determine the enforcement of religious rights. The religious rights may be private or public. For say, the rights relating to marriage, succession, adoption, etc. As far as public rights are concerned, one may count the right to freedom of speech and expression, residence, right to practice any profession, occupation, and religion. Laws regulating morality touch many facets of life, from sex, substance use, and gambling, to fundamental issues of life and death such as abortion or assisted suicide.[7]

The religious matter may have different moral inquiries. Such as whether the state is headed by a particular religion. This inquiry seems significant to have the separation of religion from civil affairs. Otherwise, the State being the implementer of the law may not have a balanced view concerning other religious minorities. This may lead to affect the rights of individuals either private or public. The issue of secular law and secular implementation raised doubts about the intentions and actions of the states. However, Antonio Gramsci has raised his concern on the religious rights of individuals by saying “Note the problem of religion taken not in the confessional sense but in the secular sense of a unity of faith between a conception of the world and a corresponding norm of conduct. But why call this unity of faith “religion” and not “ideology,” or even frankly “politics”?[8]

In present day, unity of one specific religion becomes the ideology for party politics which creates faith in government. The effectiveness of any Government is largely depends on the democratic, secular fabric of the Nation. From this it is obvious that representative Government cannot altogether do away with the necessity of such guarantees for the protection of the interests of the minorities in a nation.[9] Many people across the country may doubts on the stand of Government in view of recent stance of the Ramjanmabhoomi project which reached a culmination of sorts with the Supreme Court’s verdict in 2019[10]. It allowed for the temple’s construction. It also put an elected government in charge rather than a religious trust or organization. However, the theological action to secure the vote bank keeps every individual of the community in action. The changing nature of politics and law has shaped the things in India in a very contradictory approach of secularism.[11] In many way people try to claim that, the principle of secularism to be killed and crushed by the Government due to the theological action of the government on consecration ceremony in Ayodhya. Invoking the theological approach in handling the religious issue not doubts invite the challenges. The Ram temple’s consecration in Ayodhya and the deep association of the Indian state with it has been demonstrated by the participation of key constitutional functionaries.[12] The secularism guaranteed the rights to profess the religion without any hurdles. One can hardly see the concept of secularism in the same spectacle as it was expected before inculcating the same in Indian Constitution. Those who are crying on the name for breaking the secular fabric due to involvement of the Government in consecration ceremony of Ram at Ayodhya must not forget about the role of ruler in turning the battlefield in holy land by respecting the societal morality. However, one must not forget that,  by avoiding the past connections of individual’s life by avoiding a past can hardly be overcome by restrictive approach of grant of rights. The fundamental principle of the modern democratic State is in recognition of human values and the belief as each individual has but one life, full opportunity should be accorded to each to attain his maximum development in such a life.[13]

The recognition of human values through law and its responsible implementation must be the vision of state. Only a strong Government can bring the unity, faith, protection of individual interest together by words and action. However, it is to be clear that, if the representative Government is weak in operating such policies, the group of individuals may supersede the Governmental ideology and in cash the situation to claim political power for future. However, it is also a moral responsibility of the Government to prevent the injunctions of religious practice which stereotype the religious minorities and fix unalterably the position of each individual in the social scale. The Standing Orders of the Government recognize this tendency and contain directions to counteract it.[14] The dominance of the particular community on religion subtracts the idea of equality and denied the adequate representation of the other classes of Hinduism. In order to comply the modernized value and constitutional morality, the Government must take a stand to have a distributive justice in religious matters. It’s a time to give up the traditional belief and modernize the religion by having inclusive religious governance among the Hindus for beneath the surface.

About the last issue i.e what is the role of state in maintaining the religious freedoms, constitutional rights of individuals and the expectations of societal minorities?, in this context, keeping the multi-religious, multi cultural and multi-lingual feature of India in mind, the social pluralism cannot be promoted nor can be defended unduly. The uniqueness of idea of secularism assures the rights of minorities to be protected. Beside the Article 25 of Indian Constitution, the secularism is reflected from the other constitutional provisions such as Art. 26 to 30 of Indian Constitution. Beside the constitutional provisions, there are number of other enactments created for the benefits of the societal minorities.  Number of instrumentalities is also introduced by the Government such as National Commission for Minorities, National and State Human Rights Commission.

Article 26 grants religious denominations the right to manage their own affairs, including establishing and maintaining institutions for religious and charitable purposes. Furthermore, Article 27 prohibits the state from compelling individuals to pay taxes for promoting or maintaining any particular religion.

These constitutional provisions lay the foundation for the state’s role in protecting religious freedom and ensuring the rights of minorities are upheld. The state’s role in protecting religious freedom extends to safeguarding the rights of minorities, ensuring their full and equal participation in the social, economic, and political spheres. Beside the number of programme introduced by the Government of India for minorities, the judiciary also have taken sever steps. Number of landmark judgments have shaped and clarified the contours of religious freedom in India.

The Kesavananda Bharati vs. State of Kerala[15]  is the historic case established the doctrine of the basic structure of the Constitution. While not directly related to religious freedom, it affirmed the supremacy of fundamental rights, including those pertaining to religion. The judgment emphasized the state’s duty to protect these fundamental rights, providing a broader constitutional context for the discussion.

Religious conversion has another significant issues which can be seen now a days due to undue influence of the forces. However, misuse of the religion is to be avoided rather to be controlled by the state. Therefore in famous case of Sarla Mudgal vs. Union of India[16],  the Supreme Court addressed the issue of bigamy and the practice of converting to Islam solely for the purpose of contracting a second marriage. The court held that a person, after converting to another religion, would continue to be bound by the personal laws of the original religion concerning matters like marriage. This decision reaffirms the state’s role in preventing abuse or misuse of religious conversions. While in another significant judgement, TMA Pai Foundation vs. State of Karnataka coveres right to establish and administer educational institutions, this case emphasized the secular nature of the Indian state. It toughened the idea that institutions, whether educational or otherwise, should be open to all, irrespective of religious affiliations. This underlines the state’s responsibility in maintaining a secular stance to foster inclusivity. Followed by the same in 2017, Shayara Bano vs. Union of India[17] a landmark case addressing the practice of triple talaq  among Muslims. The Supreme Court declared the practice unconstitutional, emphasizing the need to protect the dignity and rights of Muslim women. While the focus was on gender justice, the judgment underscores the state’s role in intervening to protect individuals from regressive practices within religious communities. However, this is the area where reservation policies can hardly work rather than the regulation of it either by substantive law or judicial precedents.

In India reservation policies are one of the root causes to suppress the meritocracy. However, with the constant auditing of the communal economic and education development, there is need to adopt the affirmative policies to advance the justice. As Number of states in India are doing it at ground level. However, unless the poorest of the poor section of the society becomes the part of the mainstream of society, the object of the idea of justice will not be achieved.

Numbers of states in India have implemented reservation policies to ensure equitable representation of minority communities in educational institutions and government jobs. These policies aim to address historical disadvantages and promote inclusivity. Despite constitutional provisions and legal safeguards, challenges persist in ensuring the full realization of religious freedom for minorities in India.

The instances of communal voidances are no doubt suppressed. However, it has been seen that, communal disharmony has been seen as one of the reason behind it. The state must actively work towards preventing and addressing such incidents, ensuring that individuals are free to practice their faith without extreme regulations. One can see the reforms amongst Hindus, in terms of educational, political, and economic for overall benefit of the community as a whole. The phases of affirmative action largely created for the poorest among the poor, schedule castes, schedule tribes, backward classes, and special social and economic backward classes, even to the children in general irrespective of any caste or creed. This is only for the overall development of a child as a human being. So if the laws can be negotiated with the beneficial purposes in general, what’s wrong to say no to the uniform civil code?.

  1. Conclusion:

Existing societal and legal system demand the reforms in religious law especially on the line of uniformity as far as possible. The call for uniform civil code may replace the biases in to uniform action, uniform law and decisions. Few common are requires to prevail such as gender justice on the existing religious practices. The state may play a role in developing educational curricula that encourage inclusivity and respect for diverse religious traditions.

In conclusion, the role of the state in maintaining the religious freedom, constitutional rights, and expectations of minorities in India is complex and dynamic which cannot only be cover by legal reforms. It involves a delicate balance between respecting individual freedoms, safeguarding minority rights, and addressing societal challenges. Through constitutional provisions, legal frameworks, and proactive measures, the Indian state strives to create an inclusive society where all citizens can practice their faith freely, contributing to the rich tapestry of the nation’s cultural and religious diversity.


Pankaj Umbarkar, Associate Professor of Law at Hidayatullah National Law University, Raipur.

Priyanka R. Mohod, Assistant Professor of Law at Hidayatullah National Law University, Raipur.


[1] John W Morden, “AN ESSAY ON THE CONNECTIONS BETWEEN LAW AND RELIGION”, Journal of Law and Religion , 1984, Vol. 2, No. 1 (1984), pp. 7-39 , Cambridge University Press, available at: https://www.jstor.org/stable/1051031.

[2] Ibid

[3] Arvind Kumar Rai, “The Concept Of Dharma”, journal of East-West Thought, available at 2321-Article Text-3640-1-10-20200403 (1).pdf

[4] Sen R, Secularism and Religion Freedom “Oxford Handbook of Indian Constitution” 2016.

[5] Constitutent Assembly Debate 1949 Vol 10 Lok Sabha Secretariet 17 Oct. 1986.

[6] Reed, A. M. 2001 . Ananya Mukherjee, Religious Freedom Versus Gender Equity in Contemporary India: What Constitutions Can and Cannot Do , Atlantis, Vol. 25.2, p. 42.  https://pdfs.semanticscholar.org/da57/6e17f8342 4e4ad84027e4 c8ceb821dff71a0.pdf . Return to Text.19

[7] Silver, Jasmine R. “Binding Morality and Perceived Harm as Sources of Moral Regulation Law Support Among Political and Religious Conservatives.” Law & Society Review, vol. 54, no. 3, 2020, pp. 679–718. JSTOR, https://www.jstor.org/stable/48585388. Accessed 27 Jan. 2024.

[8] Gil Anidjar, “Secularism”, Critical Inquiry, Vol. 33, No. 1 (Autumn 2006), pp. 52-77, The University of Chicago Press, available at https://www.jstor.org/stable/10.1086/509746

[9] The Education Department Government of Maharashtra, Bombay-400032 for Dr. Babasaheb Ambedkar Source Material Publication Committee, Dr. Babasaheb Ambedkar : Writings and Speeches Vol. 2, M/s. Tan Prints India Pvt. Ltd.,  ISBN (Set) : 978-93-5109-064-9  available on https://www.mea.gov.in/Images/attach/amb/Volume_02.pdf

[10] Sravasti Dasgupta, “PM Modi in Ram Temple Pran Prathishtha: End of Secularism as ‘Distance’ Between State and Religion?”, available on https://thewire.in/politics/pm-modi-in-ram-temple-pran-prathishtha-end-of-secularism-as-distance-between-state-and-religion

[11] Sravasti Dasgupta, “PM Modi in Ram Temple Pran Prathishtha: End of Secularism as ‘Distance’ Between State and Religion?”, available on https://thewire.in/politics/pm-modi-in-ram-temple-pran-prathishtha-end-of-secularism-as-distance-between-state-and-religion

[12] S.N.Sahu, “Theologically Determined Politics Weakens Representative Government”, for more details see https://thewire.in/government/theologically-determined-politics-weakens-representative-government

[13] Hon’ble Sir Alexander Cardew, K.C.S.I., I.C.S., to the Government of India contained in the letter

No. 1146 (Reforms) dated the 31st December 1918.

[14] The Education Department Government of Maharashtra, Bombay-400032 for Dr. Babasaheb Ambedkar Source Material Publication Committee, Dr. Babasaheb Ambedkar : Writings and Speeches Vol. 2, M/s. Tan Prints India Pvt. Ltd.,  ISBN (Set) : 978-93-5109-064-9  available on https://www.mea.gov.in/Images/attach/amb/Volume_02.pdf

[15]  Kesavananda Bharati vs. State of Kerala AIR 1973 SC 1461

[16]  Sarla Mudgal vs. Union of India 1995 AIR 1531

[17]  Shayara Bano vs. Union of India AIR 2017 9 SCC 1

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