development of religion and its impact on law in india

153 Pages·2017·1.08 MB·English

CHAPTER-II
DEVELOPMENT OF RELIGION AND
ITS IMPACT ON LAW IN INDIA
2.1 Introduction
The story of civilization has two dynamic components, among many, namely,
law and religion. From ancient times, ‗law and religion‘ have interacted, jointly
operated and, at times, mutually fought to over-power each other. In many vintage
culturist and bygone societies, the two have been a blended brew and even to this day,
in many communities and countries, religion actively or passively affects law or is a
1
component thereof, but while law holds religion in leash. Of course, the relationship
of religion and law has been changing with the changing times, lik e everywhere else,
also in the third w orld. Centuries have intervened between The Old Times when
religion fully contro lled the law and the present new age where the two - social - control
2
mechanisms, have exchanged their position.
India can rightly be described as the world‘s most heterogeneous society. The
integral Yoga of the law and religion is the genius of Indian culture which blends in
Dharma, the finer components of legal and spiritual values. The Hindu sages, the
Buddhists and Jain seers as well as Sikh saints and other socio-religious reformers
regarded law and religion not as divorced from each other but as mutually inter-
3 4
acting and cross-fertilizing. Donald E. Smith describes that :
In traditional societies, religions were more deeply influencing than
the laws. Their influence on business world, polity and fam ily life
were due to the moral norms. They evolved in the course of
application of their precepts. Both Hinduism and Islam had prescribed
detailed regulations of Human actions relations. Because of all-

1
V.R. Krishna Iyer, Law and Religion 9 (Deep and Deep Publication, New Delhi, 1984).
2
Tahir Mahmood, Laws of India on Religion and Religious Affairs 1-2 (Universal Law Publishing
Co. Pvt., Delhi, 2008).
3
Supra note 1 at 7.
4
India as a Secular State 265 (Princeton University press, Princeton, 1963).
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pervasive influence of religion, changes were slow, and not directly
through state.
Though seemingly wide apart, ‗law and religion‘ take their roots from the
same source. ‗Religion‘ binds us together; ‗law‘ regulates our mutual relations. Both
aim at regulating human conduct in relation to the self, to the creation and to the
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creator. According to Hindu religion, the conduct of an individual in relation to the
self, to the society, to the state and to the Supreme should be in accordance with
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Dharma, popularly called Hindu Dharma. This Dharma is called Sanatana Dharma.
7
Swami Nikhilananda q uotes that:
The Hindu Dharma cannot strictly be called a historical religion. It
was not founded by any historical person or persons. It is based upon
the teachings of the Vedas, which, according to Hindu tradition,
consist among other things of certain spiritual laws describing the
nature of ultimate reality, the individual soul and the relationship
between man and his creator and his fellow beings. These laws, eternal
in nature, were revealed to those, spiritually developed persons known
as rishis, who lived, at a very early period of history on the banks of
the Indus and the Ganges. Great prophets of older times like Rama and
Krishna were upholders and demonstrators of these spiritual laws
during critical period of India‘s history.
The religion based on the Vedas the Sanatana Dharma, or Vedika Dharma, is
the oldest of living religions, and stands unrivalled in the depth and splendor of its
philosophy, while it yields to none in the purity of its ethical teachings, and in the
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flexibility and varied adaptation of its rites and ceremonies. One of the most
remarkable things in the Sanatana religion is the way in which it has laid down a
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complete scheme of knowledge. The Vedas give little indications of any legal rules.

5
V. Kameshwara Rao, Law and Religion, available at
nd
http://www.yavaluri.org/TRIVENICDWEB/lawandreligionapr64.htm; accessed on 2 April, 2012.
6
Ibid.
7
―Hinduism‖ in Vergilius Fren (ed.) Religion in the Twentieth Century 3-4 (The Philosophical
Library, Inc., New York, 1948.)
8
Sanatana Dharma – An Advanced Text Book of Hindu Religion and Ethics 1 (Published by The
nd
Board of Trustees, Central Hindu College, Banaras, 2 ed. 1904).
9
Id. at 3.
66
While it was an obligation for ritual specialists to be extremely punctilious, it could
only be claimed that obedience to the Vedas was a legal duty in the sense that there
10
was a human obligation to assist in maintaining cosmic order. Hindu law is
considered to be divine origin. It is revealed by the Almighty God to our great sages,
philosophers and jurists who had attained spiritual heights... Hindu Law, according to
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our Dharmshastra, is sacrosanct, inviolable and immutable.
In m edieval period India was invaded by foreign rulers. After the Muslim
conquest and the consequent decline of Hindu supremacy, the traditional social and
political structure is integrated. The legal theory of Muslims was governed by their
religion Islam. It was based on the teachings of Koran, their religious book, the
tradition of the prophet and precedent. No well-defined political institution was
specifically created by the Koran. The Muslim polity was on the conception of the
legal sovereignty of the Sharia or Islamic law, which was fully based on the religious
panorama of Muslims. Any attempt to break away from the organized community was
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condemned by the religion. The Koran being of absolute authority, all controversy
centered round its interpretation, from which arose the Muslim law or Shariat. The
Muslim invaders of India presented a political and religious arrangement in the
country. The essential injustice and inequality of which could not be wholly removed
even by the most enlightened Muslim rulers. Religious intolerance and racism were
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the bedrock of their policy.
With the advent of British they brought the Benthamite & Austanian methods
of codification of law. Despite of the codification, the personal affairs of various
communities were still governed by their respective religions, ethics and traditions.
The policy of preserving personal laws of Hindu and Muslims in family matters was
reiterated by Cornwallis as it was specifically declared in the preamble to the
Regulation III of 1793 that the aim of the Government was to preserve to the Indians
the laws of Shastras and the Koran in the matter to which they have been invariably

10 nd
Werner Menski, Comparative Law in a Global Context 206-207 (Cambridge University Press, 2
ed., 2006).
11
Ibid.
12
Koran, Vol. III, p. 192; Vol. XLII, p. 38, Vol. V, p. 2 Quoted by V.D. Kulshretha‘s Landmarks in
th
Indian Legal & Constitutional History 19 (Eastern Book Company, Lucknow, 9 ed. 2009 .)
13
Ibid.
67
14 15
applied. Besides, British g ave to this country a system of administration of justice.
The struggle for i ndependence in 1857, by the Indians opene d the eyes of British and
prompts them for good governance in India. Consequently , the law commission was
appointed. On the basis of the recommendations of the law commissions some
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important A cts were enacted.
On the basis of the literature and work of various scholars one can grasp that
if , in ancient time the Indian legal system was dominated by the Hindu religious and
customary norms than in medieval period the Indian legal system was synthesized by
Muslim religious norms. It was the late medieval period when British gave a statutory
and legislative method for the formation of law. What would have been the nature and
object of law during the ancient and medieval period, one thing is clear that religion
has played a vital and guiding role for the formation and implementation of law.
2.2 Historical Development of Law and Religion
Chronologically, Indian History may be divided into ancient, medieval and
British epochs. Most of the rulers of the first period were Hindus and those of the
second were Muslims. The third period takes in British rule and subsequent period for
independence. The periodical study of religion and its impact on law, in India, may be
undertaken as under.
2.3 Ancient Period
Ancient Indian History covers the period from the beginning of known history
to the establishment of effective Muslim rule in a substantial part of the country in
1206 A.D. Frequently; historians distinguish between the pre-Vedic (Aryan) religion
and post Vedic (Aryan) religion.

14
M.P. Jain, Outlines of Indian Legal History and Constitutional History 350 (Lexis Nexis
th
Butterworth Wadhwa, Nagpur, 6 edition, 2012).
15
Establishment of Mayor Court in 1726, Diwani Adalats Sadar Nizamat Adalat, Establishment of
Supreme Court of Calcutta under the Regulation of 1773; Sadar Diwani Adalat under Judicial Plan
1780; Judicial Plan of 1793, Establishment of Indi an High Court in 1861 etc.; For more detail see
Ibid.
16
B.M. Gandhi, V.D. Kulshreshtha‘s Landmark in Indian Legal and Constitutional History 488
th
(Eastern Book Company, 6 ed. 2011).
68
2.3.1 Pre-Vedic Religion-Indus Valley Civilization
About one thousand years before the Aryans entered India through the
northwest mountain passes, twenty five hundred years before the Christian era, there
existed a highly developed civilization now known as the Indus Valley civilization.
Excavations in the area centering around the once large cities of Mohenjo-Daro on the
Indus River and Harappa on the Ravi River, give evidence of comfortable and
17
spacious domestic dwellings. In the l ight of the archaeological data, the history of
18
Indian civilization reaches back to 3300 - 2800 B.C. as iron has not been found in
19
above said region, its date can be conveniently placed 2700 B.C.
Various sculpture s, seals, pottery, gold jewelry and anatomically detailed
figurines in terra - cotta, bronze and steatite have been found at excavation sites. A
number of g old, terra - cotta and stone figurines of girls in dancing poses reveal the
presence of some dance form s . Also, these terra - cotta figurines included cows, bears,
monkeys and dogs. The animal de picted on a majority of seals at sites of the mature
period has not been c learly identified. Part bull pa rt zebra, with a majestic horn, it has
been a source of speculation. As yet, there is insufficient evidence to substantiate
claims that the image has religious or cultic significance, but the prevalence of the
image raises the question of whether or not th e animals in images of the Indus Valley
20
C ivilization are religious symbols. Commenting o n the religion of Indus Valley
21
C ivilization, Bouquet clarifies that:
The point of importance for subject, however, is that rig ht back in the
days when Mohenjo-Daro and Harappa were flourishing cities; their
citizens seem to have had a religion which already exhibited some of
the elements familiar to observers of (say) nineteenth - century
Hinduism. Thus a seal has been unearthed on which is depicted a

17
Robert V. Baird and Alfred Bloom, Indian and Far Eastern Religious Traditions 3 (Harper & Row
Publishers, London, 1971).
18
Yakub Masih, The Hindu Religious Thought 1 (Motilal Banarsidas, Delhi, 1983).
19
Ibid.; The Time Period of the Indus Valley Civilization has been divided into the pre-Harappa
(started in the late fourth millennium and continuing to 2600 B.C.) and late Harappa (from 1900
B.C. to 1750 B.C.) see Romila Thapar, The Penguin History of Early India 80 (Penguin Books
India, New Delhi, 2002); See also Danial Miller, ―Ideology and the Harappa Civilization‖, Vol. 4,
Journal of Anthropological Archaeology 34, (1985). Available at
nd
http://www.columbia.edu/itc/anthropology/v3922/pdfs/miller.pdf; Accessed on 2 February, 2015.
20
John Key, India (Harper Press, Hammersmith, London, 2010).
21
A.C. Bouquet, Hinduism 18-19 (Hutchinson‘s University Library, London, 1948).
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horned figure seated in a cross-legged position, in all essentials similar
to that in which the God Shiva is often represented today. Horned
cattle also appear to have been treated as sacred, just as they are today.
Nagas or Snake-Spirits are believed in by these ancient dwellers in the
Indus Valley and there is also a tree-cult, while a representation of a
female vegetation-deity has been found. Later invaders called these
proto - Dravidians Sinsa-devah or Phallus-worshippers, which
suggests that their sanctuaries already contained the lingm or male
symbol of fertility, which is another familiar accompaniment of the
worship of Shiva. These may seem slight pieces of evidence in
themselves and it must be confessed that so far no one has succeeded
in deciphering the meaning of the Indus Valley inscriptions, which are
still as much an enigma to us as those of Etruria. Yet it may fairly be
regarded as, certain that, there was not only a developed cult, but that
there has been no real breach of continuity between this early
civilization and that obtaining in non-moselem India at the time when
the British occupation began.
22
A similar view is given by Karmarkar in the following words:
The Mohanjo-Darians enjoyed a monarchic form of government, one
of their Kings named Mina being mentioned in the inscriptions. Every
tribe had its own banner (dhvaja) decorated with its own janachana
e.g. fish, Naga, the linga and others. The inscriptions speak of the
system of taxation and other problems of general administration in
those days. Best of all we find that a great development had taken
place in regard to the religious and philosophical ideas of the proto-
Indians. The Mohenjo-Daro zodiac consisted of eight constellations.
The Mohenjo-Darians worshipped the divine triad consisting of Siva,
Muruya and Amma (equivalent of the Sumerian Ann, Evil and Ama),
the proto-types of the historic Siva, Karti-keya and Parvati
respectively. Besides, the worship of the Naga (Cobra), the Linga, the
ring-stones, and the tree, especially the pipal was in vogue. The

22
A.P. Karmarkar, The Religion of India 6 (Mira Publications House, Lonavla (India), vol. 1, 1950).
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representation of the three-faced Siva seated in a yogic posture is
unique indeed. The bronze image of a female dance may through light
on the early system of Devadasis. God had their own temples and
other paraphernalia. We see in those days the early beginnings of
idolatry, zoolatry and dendrolatry. The people had their own system of
ritual, which included the animal and human sacrifices. In matters of
philosophy, they had formed their own notions in connection with the
doctrines of monotheism, Karma, Rebirth, Asceticism, Yoga and
others.
23
Wheeler, the great authority on the topic, very prudently mentions that:
Buildings, sculptures, terracotta‘s and seals have already introduced the
complex problem of the Harappan religion or religions and the salient
features of the available evidence may now be brought together. At the
outset, however, two reminders are advisable: first, as to the notorious
incapacity of material symbols to represent the true content and affinity
of a religion or belief, and secondly as to the indivisibility of religious
and secular concepts in ancient times. Thus on the one hand the symbol
of a mother and child may range through a whole gamut of ideas from
the simplest physical to the most transcendentally metaphysical; and on
the other a ‗King‘ may combine the virtues of a God with those of a
priest and the presidency of a senate. Modern terminology and modern
habitude have constantly to be discounted in any consideration of the
disjecta of an ancient religion or an ancient polity.
24
The Indus Valley Civilization during this period was predominantly secular,
and its archeological survey reveals that there is ample evidence of attempts to
25
harmonize diverse religious cults. Different religious practices and forms of
26
worships appear to have been tolerated concurrently in various regions. Considering

23 rd
Sir Mortimer Wheeler, The Indus Civilization 108 (Cambridge at The University Press, London 3
ed. 1968).
24
R.L. Crane (ed.), Jawaharlal Nehru‘s The Discovery of India 34 (Anchor Books, New York, 1960);
Quoted in Dhirendra K. Snvastava, Religious Freedom in India – A Historical and Constitutional
Study 18 (Deep & Deep Publications, New Delhi, 1983).
25
S.R. Rao, Lothal and the Indus Civilization 125 (Asia Publishing House, 1973).
26
M. Edwardes, A History of India from the Earliest Times to the Present Day 22 (Thames &
Hudson, London 1961).
71
the secular practices of the inhabitants of Indus Valley civilization, Adam observes
27
that:
As the early Harppan phase begins, the Harppans begin burning their
deceased with fewer grave goods. During the height of the Indus
Civilization, many of the burials from Harappa contain only few grave
goods, in any at all (Kenoyer 1998). However, most graves from the
Indus River valley contained at the very least a little material culture.
In order to determine the secular value of buried goods, they must be
compared to those found in a secular setting. Thus, materials from
―hoards‖ or secular deposits of artifacts must be considered in order to
determine the value of grave goods (Rissman 1988). In order to control
for conditional changes throughout different temporal phases, Rissman
(1988) examines only materials belonging to the height of the Indus
Civilization. He includes many materials form hoards and burials and
analyzed each with the other in mind. Materials such as gold, copper
and semi-precious stones fill the hoards from various archaeological
deposits all across the region, while simple clay ornaments and jewelry
adorn the dead. Indeed an entirely different spread of materials occurs
in the ossuaries of the Indus civilization that occurs in the hoards. He
(Rissman) further proposes that the Indus civilization had two axes of
value, one secular and one spiritual. Material that was valuable
spiritually had absolutely no value on the secular market, while secular
goods were seen as worthless to the dead. Grave goods alone seem to
suggest that there were not elites in the Indus civilization.
2.3.2 Vedic Period
2.3.2.1 Coming of the Aryans
In the area from Poland to Central Asia there were large numbers of semi
nomadic peoples who in the early part of the second millennium B.C. migrated
eastward and southward. Some stayed in what is now Iran and others moved as far as

27
Adam Green, The State in the Indus River Valley, 45-47 (Thesis submitted in Georgia State
th
University, 2006) available at http://scholarworks.gsv.edu/anthro-hontheres; accessed on 12
December, 2014.
72
India, entering the land through the Kyber pass in the North West Mountains. They
were not accustomed to urban living as were many of the Inhabitants of the Indus
Valley Civilization, but they were not barbarians. These invaders, who reached India
about 1500 B.C., called themselves Aryans (a term that has since been anglicized as
Aryans). That this name also survived in Iran, will surprise no one who is familiar
with the numerous parallels between the religion of the Rig Veda and the Iranian
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religion. Professor Max Mu ller , owing to the charm of his sty le to his unrivalled
power of popular exposition, and to his high authority as a Sanskrit scholar, has done
more than any other writer to popularize this erroneous notion among ourselves. Thus
in his lectures on the science of language, delivered in 1861,i nstead of speaking only
of a primitive Aryan language, he speaks of an ―Aryan Race‖, an ―Aryan Family‖, and
29
asserts that there was a time:
When the first ancestors of the Indians, the Persians, the Greeks, the
Romans, the slaves, the cult and the Germans were living together
with in the Same enclosures, may, under the Same roof, and he argues
that because the Same form of speech are preserved by all the
members of the Aryan Family, it follows that before the ancestors of
the Indians and Persians started for the south, and the leaders of the
Greek, Roman, Celtic, Teutonic, and Slavonic colonies marched
towards the shores of Europe, there was a small clan of Aryans settled
probably on the highest elevation of Central Asia, speaking a language
not yet Sanskrit or Greek or German, but containing the dialectical
germs of all.
Sir Moritmer Wheeler, who excavated in the Indus Valley, believes that ―the
30
invading Aryans overthrew Harappa.‖ Although nomadic, the Aryans were
militarily advanced. They first took the surrounding village, and refugees apparently
fled to the cities for protection. The cities than became overcrowded causing the
previously existing order and planning to collapse. The cities, particularly Harappa,
were walled as a defense from the attack, when the cities were finally seized most of

28
Supra note 17 at 4-5.
29 st
Max Muller, Lectures, 1 Series, 211-212; Quoted in Isaac Taylor, The Origin of the Aryans 3-4
(Scribner & Wetford, New York, 1890).
30
Supra note 23 at 131-133.
73
the inhabitants of Mohenjo-Daro fled, but skeletons indicate that some may have been
31
overtaken and killed in flight.
It becomes worthy to mention a critical view of Kulke and Rothermund,
32
relating to the settlement of Aryans in the Indian field, in the following words:
In case the Indo - Aryan identity of the people of these early migrations
in the early second millennium B.C. could really be proven, it is
evident that some Indo-Aryan groups must have come into a direct and
even active contact with the urban civilization of the Indus cities
which was still flourishing at that time. Such identification however
does not necessarily imply that these early Indo-Aryans have to be
regarded as the direct ancestors of the (later) Rig Veda people. The Rig
Veda the oldest Vedic text reflects a socio-economic and cultural
context which does not show any evidence of religious life. Scholars
who accept an Indo-Aryan identity of these early central Asian
migrants in the late Harppan period, therefore, assume that these early
carriers of the ‗Greater Iranian Bronze Age Culture‘ (Parpola) were
soon absorbed by the Indus civilization. This hypothesis is
corroborated by the observation that the traces of these carriers of the
central Asian and Iranian Bronze age end in northwest India around
the sixteenth or fifteenth century B.C. However, this ‗absorbed‘
population may have become the upholder of an Indo-Aryan cultural
synthesis, combining Indo-Harappan (and therefore perhaps also
Dravidian) elements with their central Asian Aryan heritage. It is quite
likely that this population was responsible for the continuity of certain
traits of Harappan civilization like the worship of animals and trees
which changed and enriched the Vedic culture during the subsequent
two millennia.
The next step in advance took Aryans across the frontier into India. During
this stage of their migration we find them in occupation of the land of the five rivers.
To make room for these new arrivals, not without a fight perhaps, Indo-Aryan moved

31
See Supra note 17 at 5.
32
Hermann Kulke and Dietmar Rothermund, A History of India 31-32 (Rutledge Taylor Francis
rd
Group, London and New York, 3 ed. 1998).
74