By Justice Sudhir Narain, Former Judge, Allahabad High Court; Member, Cauvery Water Disputes Tribunal, Delhi
Meaning of Jurisprudence
The word jurisprudence has been derived from the words ‘Juris’ and ‘Prudentia’ (Juris – Law; Prudentia – knowledge). It is knowledge of law. Jurisprudence means the science of law.
When man gained a little wisdom on this planet, he tried to find out truth of nature, its order and the person who is governing it. He found that there is rhythm in the nature, an orderly movement. It was taken as an orderly system in law. The Vedic seers gave it the name of ‘ritam’ and found that the man is not whole in himself, but constitutes a unit in the cosmic order.
‘From the fervour kindled to its height eternal law and truth were born.’
It was taken as eternal law, not made by man but is already in existence. It is divine in essence and not arbitrary.
In the Sutra period, the Vedic concept of law was preserved but developed the concept of ‘Dharma’ as it supports a system of human conduct for the welfare of society in various spheres. It was proclaimed: ‘Law is support of the entire world.’
Vyas says that Dharma does not ignore the welfare and need of human life and its social aspects. The emphasis was given on preservation of social order. ‘If one protects Dharma (Law), the Dharma will protect him and if it is destroyed, it destroys the social fabric.’
While considering the Ved, Smritis and good conduct as source of law the Dharma does not ignore the reason and consciousness of a man.
Western Concept of Law
In the Western world, the analysis of meaning of law, its scope and function emerged in eighteenth century. John Austin (1790-1859) analyzed ‘law’ as command of the sovereign supported by sanction. Jeremy Bentham (1748-1832) laid emphasis on reformative aspect of law. This was known as a school of analytical jurisprudence.
The Historical school of jurisprudence emphasized that the source of law is not command of the sovereign but instinctive sense possessed by every race. A custom is evidence of law but its real source lies in the mind of man. A legislation can succeed only if it is in harmony with the internal convictions of the people otherwise it is doomed to be failure.
Dean Pond, a great jurist, developed the theory of social jurisprudence. He considers law in relation to society. According to him, the law is social engineering. The growth of population, inequalities caused by economic development, the need of human life and its social aspects and the requirement of different sections of the society and their interaction has to be taken into account while enacting or enforcing law. It cannot be done ignoring the requirement and will of the society.
Economic approach to the law divided the world into popularly called capitalist and communist countries. One proclaims law must give full freedom to an individual to achieve his end. On the other hand, the communists contend that the law is an instrument of the capitalist to oppress the weaker section of the society by controlling economy and the natural wealth of the nation.
Religion and Law
The next question is what is or what ought to be nexus between law and religion. Etymologically, the word ‘religion’ is derived from the word ‘religiare’ which means ‘to bind’. It may be a bond between God and man or man to man. Today its limited meaning cannot be given. Broadly speaking it carries four aspects.
- Relationship of man to God or soul to Supreme consciousness.
- Relationship of man to man and prescribed conduct for maintaining harmony.
- Rituals, ceremonies or other mode of worship.
- Cultural aspect like festival and others.
- Secular aspect like establishment and running of educational institutions.
When man came to the planet, he wanted to know the creator of the universe, his super-natural power and made efforts to know the technique of knowing the supreme power. He further wanted to know the purpose of his life and life after death. Many religions developed on this planet with passage of time based on certain belief and faith.
If one has to pursue a particular religion, he is to believe in its doctrine or dogmas. A Christian is to believe that Christ is son of God, a Muslim believes that Mohammad is prophet, a Buddhist is to accept the principles propounded by Buddha, a Hindu basically believes in Sanatan Dharma. The intolerance to one belief or faith to another sometimes led to war.
Theocratic and Secular States
In respect of enactment and enforcement of religious laws, the nations of the world are divided into two categories under their constitutional frameworks; namely, 1. Theocratic States and 2. Secular States.
The theocratic States under their Constitutions proclaim the specific religion will be their State Religion. The Secular State separates state from religion. The extent of separation depends upon the provision of their respective Constitutions.
For example, the Constitution of the United States separated completely religion and State: the First Amendment of the Constitution of the United States says: ‘Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof…’
President Jefferson wrote: ‘I contemplate with sovereign reverence that act of the American People which declared their legislature should make no law respecting an establishment of religion or prohibiting the free exercise thereof thus building a wall of separation between the Church and the State.’
The Constitution of the U.S.S.R. prescribes that the Church is separate from the State but anti-religious propaganda is also recognized. Article 124 of the Soviet Constitution reads as under: ‘In order to ensure to citizens freedom of conscience, the Church in the U.S.S.R. is separated from the State, and the school from the Church; freedom of religious worship and freedom of anti-religious propaganda is recognized for all citizens.’
Article 25(1) of the Constitution of India provided that a person has a twofold freedom: freedom of conscience; and to profess, practice and propagate religion.
There is positive approach in the Indian Constitution; namely, one is free to practice his religion, but makes it obligatory to respect others’ religions because other persons have same right to practice and propagate their religions of their choice. Mahatma Gandhi ji used to say, ‘sarva-dharma-sambhava’, means that we should have respect for all religions.
The word ‘secular’ was added by 42nd Amendment of the Constitution in the Preamble of the Constitution of India. In S.R. Bommai vs. Union of India and others (AIR 1994 S.C. 1918) the concept of secularism has been well expounded in the context of the Constitution of India. Justice B.P. Jeevan Reddy observed: ‘Secularism is thus more than a passive attitude to religious tolerance. It is a positive concept of equal treatment of all religions.’
Article 51-A of the Constitution enumerates fundamental duties of a citizen. Its Clause (e) provides that it is fundamental duty – to promote harmony and the spirit of common brotherhood amongst all people of India transcending religious, linguistic and regional or sectional diversities. The concept of religious harmony is embedded in this article.
Dr. S. Radhakrishnan, former President of India, in his ‘Discovery of Faith’ stated that the religious impartiality of the Indian State is not to be confused with secular or theocratic state. Secularism as defined here is in accordance with the enormous religious traditions of India. It is for living in harmony with each other. This fellowship is based on the principle of diversity in unity which alone has all quality of creativeness.
Religion and Secularism
Sometimes there is close nexus between religious practice and its secular aspect. The Supreme Court came across such situation in many cases and held that religious practice is different from secular aspect of religions. Some of the decisions of the Supreme Court are relevant on this aspect.
In A.S. Narayan vs. State of Andhra Pradesh (AIR 1996 SC 1765) the validity of the Andhra Pradesh Charitable and Hindu Religious and Endowment Act abolishing hereditary right of ‘Archak’ and other office holders was challenged. The Supreme Court held that the right of hereditary ‘Archak’ is not part of religion. The man can worship the deity in whom he has faith, but he has no right to hold to any post which is a secular aspect. Similar view was taken in Vaishno Devi Shrine case (AIR 1997 S.C. 1711) Bhuri vs. State of Jammu & Kashmir.
In N. Aditya vs. Travancore Devaswom Board (2nd Supp. SCC 3538) the Supreme Court held that Brahmins do not have monopoly over performing Pooja in a temple and a non-Brahmin can be appointed as a Pujari if he is properly trained and well versed with the rituals.
In Ismail Faruqui vs. Union of India 1994 (6) SCC 360 wherein the land surrounding mosque was acquired by the Union of India under the Land Acquisition Act, the Supreme Court upheld its validity and held that it does not interfere with the essential element of religion. The right to worship is essential part of religion but it does not include the right to worship at any particular place and every place.
In Anand Marg’s case (1984) (4) SCC 522 the Supreme Court upheld the validity of an order passed under Section 144 Cr.P.C. prohibiting the procession of Anand Margis moving in procession performing ‘Tandava Dance’ at public place and carrying lethal weapons and human skulls even though ‘Tandava Dance’ may be part of their religion.
Religious Education
Human values and morality is part of every religion as it prescribes duties for human conduct. It is basically based on the principle of non-violence, truth and love for each human being.
In Aruna Roy vs. Union of India (AIR 2002 Supreme Court 3176), wherein the educational policy laid down by the National Council for Education Research and Training (N.C.E.R.T.) was challenged recommending for National curriculum framework for school children providing that the student be acquainted with basics of all religious teachings; the human values mentioned therein and also a comparative study of philosophy of all religions.
Justice D.M. Dharmadhikari observed: ‘The comprehensive approach to religion which should be inculcated in a society comprising people of different religions and faiths is described as inclusivism. In explicit pluralism, the view accepted is that the great world faiths embody different perceptions and conceptions of and correspondingly different responses to the Real or Ultimate and that within each of them independently the transformation of human existence from self-centeredness to reality-centeredness is taking place.’
In D.A.V. College, Jalandhar vs. State of Punjab (AIR 1971 S.C. 1731) the validity of Section 4 of Guru Nanak Dev University Act was challenged on the ground that it violates Article 28 of the Constitution as it enjoins the University to encourage the teaching of Guru Nanak. The Supreme Court rejected the contention.
Role of Religion in Law
The role of every religion, besides other things, is to evaluate human values. In every religion the emphasis is laid on good conduct in human behaviour and love for all human beings. It prescribes certain duties to be followed by men. The religious practice if followed in true spirit purifies the mind. The Upanishad says: ‘Lead us from darkness to light.’
According to Maharishi Aurobindo, the practice of Yoga leads a man to higher consciousness. If the consciousness of a man is pure, he would not commit any crime. The law of crime prescribes punishment for an offence committed by a person but spiritualism inspires a man not to commit offence. It is a bridge that leads to utopian society.
Spiritual Jurisprudence
Acharya Vinoba Bhave spoke: ‘The days of religion and politics are over, the days of science and spirituality has arrived.’
Spiritualism is now considered as science. In the Gita in the end of each chapter, reference is made that the teaching is science of spiritualism.
In S.P. Mittal vs. Union of India (AIR 1983 S.C. 1) the petitioner challenged the validity of Aurobindo (Emergency Provision) Act, 1980 under which the State Government took over the management of the Aurobindo Ashram known as ‘Auroville’. The contention of the petitioner was that the action of the State was an interference with the administration of the religious activities of the Auroville. The Supreme Court by majority upheld the validity of the Act on the ground that teaching of Shri Aurobindo only represented his philosophy and it is not a religion.
‘As our senses give us the knowledge of the external things by directing our consciousness outwardly, in the same way if we can direct our consciousness inwardly and rise into the inner consciousness, we can know the things of the higher worlds and go beyond the limitation of our physical sense, then only can we have the true knowledge of this world and the worlds beyond and that practice is called Yoga.’
The meaning of the word yoga is to join – join our external consciousness with our true self.
To seek the truth in nature or the Universe is a science but when one seeks truth in one’s inner self, it is also science. Spiritualism is a science. The basic principle of every religion is the divine or to achieve super-consciousness. It can be termed as ‘Inward Religion’.
Dr. Bhagwandas wrote a book – ‘Essential Unity of all Religions’ detailing the essence of many religions. If the doctrinaire part of religion is ignored, one can find a way to journey which leads to spiritualism beyond materialism. He will respect human values in his conduct. Every religious book emphasizes on human values; e.g., in the Holy Bible, Ten Commandments, in the Holy Koran the principle of brotherhood, in Tripitakas the teaching of non-violence and compassion. In the Gita the principle of Karma Yoga is emphasized. Similarly in other religious books the concept of spiritualism is found.
In the sense of divinity and human values, it can be termed as ‘Spiritual Jurisprudence’. As Dean Pond developed the theory of social jurisprudence, the jurists of the world can evolve the concept of spiritual jurisprudence and find out in law as to how man can think beyond the materialistic world, try to achieve human values and seek the divinity or pure consciousness within himself.