Law and Religion: – A study towards unraveling the ubiquitous nexus

Author- Subhankar Khan, Assistant Professor, Kalinga University, Naya Raipur

Email id: subhankar.khan@kalingauniversity.ac.in

Abstract

“A herd of wolves is quieter and more at one than so many men, unless they all had one reason in them, or have one power over them” as sparkled by Jeremy Taylor, but it’s not the single reason to which they imbibed by, rather in reasons they are in their self interest to flag off their clandestine objectivity. Imploring such, Hobbes works on “Leviathan” hatch forth to bloom the saying that unless a common power keeps mankind in awe, they would be in war to each other, civilization then would unrest the society within the taste of solitariness and nastiness of brutality. Man is by nature social animal, and even the King to this saying stands in no exception. Coercion, today has falls short to shoot up the orderly civilization, which in excess gives birth to the gloomy sarcasm. Rather mostly in the advanced society, administration of justice involves declaration of rights and duties of its subjects than of enforcement of the declaration itself. Legal sanction is a rule, which an enactment while crafts off the path of democracy hoover away, but social sanction in furtherance, graduates that enactment to take off its wings of utilitarianism. A good connivance of both the subjects irons out the wrinkles of distraught in a democracy. ¹ The paper is on its attempt to liquidate the path of conundrum, what since of the beginning between law and religion standing strong, where through cultivating the historical spirit of the land a predominant shape is crafted. It is in furtherance through justice, on a broader view that how through legislation a bigger goal orients to be in play, is what has been unboxed through the writing, when an unsolved matrix between the law and religion always chequered anonymity on the surface.

1 Salmond on Jurisprudence, Twelfth Edition; P J Fitzgerald; Sweet and Maxwell, South Asian Edition, Pg 88

Keywords: Leviathan; Democracy; Utilitarianism; Civilization; Matrix

Introduction

“All men are born free but everywhere they are in chains”, the words ever since sparkled through the pen of Rousseau, brought down for the men a sense of unity. The natural law theory then claimed to override and lies above the positive law. Against all the wrongs to which men for the times invariably bragged down, conceived of the spirit of equality, fraternity and liberty through the eyes of Rousseau. The dawn therefore for the French revolution floated against the feudal fetters. The situation today too has arisen to meet the despot of the time being. India since of its time being in disquietude, on meeting an eye from the Britishers of indignation, exploitation and deprivation, has no more being a country in the state of “tabula rasa”, while overcoming the shackles of domination. The call therefore on engrossing the independency was unity, and country like India, evident from its thoroughfare of history, is to only embrace such spirit in diversity. 15^th and 17^th of November, 1949, debate on Art 1 took place, where tothe name “Union of States”, proposal made to add “Secular, socialistic and federal”, but the chairman then of the Drafting Committee, Baba Saheb Ambekdar opposed it on the counts that to encode the democracy altogether would defeat its very purpose. Indian society on being implored drops down of the fact that the feet left by its predecessors, either through invasion or through travesty, certainly left the experience of imperative theory of law on the surface before. Independence for the soil unravels the soul to be sovereign, brought within the ambit snug bit of time. The British rulers brought for this country division, in dimension of which folks were divided on religion, caste, creed, language and occupation, which for them born out to be the pockets of profits. What Ambedkar was of the view that the country newly weaved shall reject theocracy. The state itself will not have any religion. Pandit Nehru with the

statement being said, that 19^th century philosophies on an independent soil has no further relevance, for the new country Austanian theory of law would be a dud in practice, and replaced therefore by the Roscoe Pound theory of social engineering, where through the course of diversity, egalitarian society is the goal to be achieved. Part III and Part IV of the constitution constituted on the same footing, where in course of practice, true objectivity of the constitutional framers would be ascertained.

India on its being secular unravels the path against theocracy. Dr Radhakrishnan in his book named “Secularism in India” stated that the state shall not identify itself with any religion. Respect for every religion would be the eye to meet secularism.² In the case of Lakshmindra, Supreme Court conceded that religion certainly concerns with faith and belief of any individual or community and it is not theistic. Religion like Buddhism and Jainism believe in no God or any Intelligent First Clause.³ The concern therefore flagged that how belief and faith of any individual or community plays a better role in determining their citizenship. How would on this the framers who applied their mind behind crafting the grand document rest? Citizenship for India, what constitution of the nation speaks for, certainly making the situation limpid thanany further convolution. Discernible of the midst, the nation on its division got the gigantic population shuffled and reshuffled across the borders. Citizenship, therefore for the framers took the roads unfurled through the constitution, Art 5-11 lays down the credentials to become citizens of the country, which on three bullets completes; born in India, either any of the parents born in India and immediately preceding to the commencement of the constitution the person had been resident of India for not less than five years. Cumulative of the three conditions in

2 Dr Radhakrishnan, Secularism in India, (Edn VK Sinha) 127 (1968)

3 Commr, HRE, Madras v Sri Lakshmindra, AIR 1954 SC 282,290: 1954 SCR 1002

their effect and on fulfilment of any one of condition would make the person citizen of India.⁴ The constitution is void of the term “domicile” in definition and Art 5 carrying both the words “domicile” and “residence” simultaneously, conflicts to which therefore stands inevitable. Contention to which conceded of the attempt being taken towards unlocking the semantics in nature, “domicile” and “residence”, got their threshold of distinction within the intention of the person willing to become the citizen of the nation. It was said that to be domiciled the person needs to be preceded through the residence itself, and the person resident not intentioned to be in furtherance within the country’s soil would not make him the domicile of the country, which is therefore the prima facie fact to become the citizen of the nation. The constructive matrix well being crafted by the Apex Court in the case of De Raedt v Union Of India, where becoming citizen of the country smothered with being domiciled itself, which is the animus manendi, the state of mind.⁵

Conclusion

A question to this always stands pertaining, that of justice, whether judiciary is of the sole body resolved solemnly to dispense it, or the legislature, where public opinion deemed to speak in representatives voice, also carries the same spirit towards social justice. The reason to which hovers on fact that democracy ordained within the populist form than of the authoritarianism, where social justice to equality stand complementary. John Rawl, the American thinker to the understanding, “Justice”, has termed as “Fairness”. He to which, encompassed the principle of justice through an unanimous agreement, where for sanctioning he satisfied two constructions; firstly, each person is entitled to the scheme of basic liberties, compatible to the similar liberties of all and secondly, social and economic inequalities must entangle with the offices and positions which is opened for all, where in the society the least advantaged people stand to be its greatest advantageous in nature.