DHARMA AND THE INDIAN SUPREME COURT

This article was written by Shivam Saxena a student of Tamil Nadu National Law School

INTRODUCTION

Pt. Jawaharlal Nehru observed that the country guards and gives an opportunity to all religions and cultures and thus brings about an atmosphere of co-operation and forbearance and the same treatment to all religious communities. ‘Sarva Dharma Samabhava’ is the central idea of Indian secularism.[1]

Dharma is defined as “that which upholds” – it is that universal order, condition which preserves the existence.[2]

In ancient time of India, the concept of law or Dharma was encouraged by the Vedas which contained rules of conduct, rites and accumulated in Dharma Sutras. They were practiced in a number of twigs of the Vedic schools. Their most important contents address the duties of people at various phases of life, the rights and obligations of the sovereign and juridical subjects. These were basis of Hindu Law. The earliest document dealing with the theory of jurisprudence, which forms governance, is the ‘ARTHA SASTRA’ of Kautilya. The third chapter deals with Vyavahara i.e. transactions between two or more parties or Vivada or disputation. During the first seven centuries of Christian era, there were a number of Dharma sastras present which dealt comprehensively with Yajnavalkya, Manu, and Narda etc.

In medieval period, the leaders of Muslim religion transformed Islam into a religion of law, but as guardian of justice, the rulers made the ‘Sharia’, a court submissive to their sovereign power. In theory the sovereigns had to be obedient to the Sharia and history talks about certain examples where monarchs unresistingly agreed to the Qazi’s judgment. The leaders sat in a Court known as Mazalim (complaints). According to Ibn Battuta, Muhammad bin Tughalaq attended to complaints each Monday and Thursday.

The experts on Sharia law were the Muftis and they gave Fatwa’s (formal legal rulings) on disputes referred to them by members of the public or qazis. The Chief Judge of the sultanate was known as the qazi –i- mamalik. During Mughal’s period the secular judge was known as Mir- adl. He performed as a judge on the king’s behalf. He must be unbiased and personal inquiries. He was also responsible for implementing qazi’s judgements. Emperor Akbar also appointed two officers, called tui-begis, to supervise the law and fixed a small amount as their charge. The same system was followed till British took over the power of India.

THE SUPEREME COURT

The king of England promulgated the Regulating Act of 1773 for passing the establishment of the supreme court of judicature at Calcutta. On 26 March 1774, the Letters of Patent was issued to establish the Supreme Court of Judicature at Calcutta, as a Court of Record, with full power & authority to hear and determine all complaints for any crimes and any suits or actions against any of His Majesty’s subjects in Bengal, Bihar and Orissa. The Supreme Courts at Madras and Bombay was established by King George – III on 26 December 1800 and on 8 December 1823 respectively. But on 1861, The India High Courts Act was enacted for the purpose of creating the High Courts for various regions and brought an end to Supreme Courts at Calcutta, Madras and Bombay.

After the independence of India, the constitution of India came into being on 26 January 1950. The Supreme Court of India also came into existence and its first sitting was held on 28 January 1950. There is a “Dharma Chakra logo” in the building of Supreme Court. Its design is reproduced from the wheel that appears on the abacus of the Sarnath Lion capital of Ashoka which have 32 spokes. The inscription in Sanskrit “yatodharmastato jayah” that means Truth alone I uphold and wheel of righteousness, goodness, equity and encompassing truth.

The judgements passed by the Hon’ble Supreme Court are binding on all lower Courts within the region of India. It has a main power of judicial review, to strike down the executive and legislative action opposing to the provisions of the constitution, the distribution of powers between Union and States or unfavourable to the fundamental rights guaranteed by the Constitution.

INDIAN SUPREME COURT ON ‘DHARMA’

AS we all know India is a secular country.[3] That means there is no official religion of India and it also respects all the religion which are in its territory. In the landmark judgment of S.R. Bommai vs. Union of India, the Supreme Court also held that secularism is a part of the basic structure of the polity.[4]

Unlike many countries of the world, in India there is a freedom of religion which is defined under Article 25(1) of its constitution. The most important feature of this is that it provides the freedom not only to the individual but also to the groups. Moreover, the Supreme Court also held in Ratilal Panchand vs. State of Bombay, that the freedom of religion extends to all persons including aliens of other countries also.[5]

The essential part of any religion is primarily ascertained with reference to the doctrines of that religion of itself. In Hanif Qureshi vs. State of Bihar, the Supreme Court held that Muslims of India couldn’t be given the freedom to kill cows by way of ‘Qurbani’ as part of Id VI Adha as the sacrifice of a cow is not an obligatory act enjoined by Muslim religion.

Article 15(1) of the constitution of India prevents to state from discriminating anybody on the ground of religion. It was also ordered by the hon’able Supreme Court in Nainsuleh Das vs. State of U.P. held that the constitutional mandate to the state not to discriminate on the ground of religion extends to political as well as other rights.[6]

The very perceptive issue which comes across various times in front of the Supreme Court was whether right to propagate religion means and includes right to forcibly convert? The Supreme court clarified in Stainclaw vs. State of M.P., that right to propagate religion does not include right to forcible conversions.[7]

CONCLUSION

The idea of secularism is very old in India. The hallucination of secularism – ‘sarwa dharma sambhava’, that means, tolerance for all religions, has always been there in our country and has its roots in the Akbar’s Din-e-Ilahi, Rig Veda, Atharva Veda and Yajur Veda. In the Constituent Assembly, there was a discussion took place for the banning religious legislation but finally the right to enact was given to the state which is a kind of legislation as part of exclusive secular polity of India. Therefore, the conception of secularism in India has been defined in accordance with multi-lingual, multi-religious and multi-cultural identity, and the olden religious customs of the nation.

The relation between law and dhrma is difficult. At a time the governments fails to prevent the ideals of secularism enshrined in the constitution. The legal enforcement agencies themselves conspire with the malefactors to shake the fundamentals of Indian democracy. Such occasions signify that in spite of fifty abnormal years of working of the constitution for bringing secularism in a natural way. It comes into view that the entire hard work done in the past has gone misuse and an unfathomable gap has been created between the two largest communities posing a big risk to the secular structure.

[1] Sripriya Rengarajan, Secularism – A goal and a process

[2] Shri Vishal Vasant Solanki, Secularism and the Law – Question of Attitude.

[3] Preamble of the Indian constitution.

[4] S.R. Bommai vs. Union of India, 1994 AIR 1918.

[5] Ratilal Panchand vs. State of Bombay, 1954 AIR 388.

[6] Nainsuleh Das vs. State of U.P., 1953 AIR 384.

[7] Stainclaw vs. State of M.P, 1975 AIR 1378.