Religion and the Law: The Two Questions
Chapter Seventeen
Syllabus topic 2, "Religion and the Law". The chapter that separates the topic's two halves.
Pages 74 to 77 of 768
In one line
India has two entirely different religion questions, and almost every mistake in this topic comes from answering one of them with material from the other.
In the wording a student can write in an exam: the relationship between religion and law in India operates on two planes. On the first, religion is the SUBJECT of the law: articles 25 to 28 guarantee freedom of conscience and the free profession, practice and propagation of religion and regulate the State's relationship with religious institutions, and articles 29 and 30 protect the cultural and educational rights of minorities. On the second, religion is the SOURCE of the law: the personal laws governing marriage, divorce, maintenance, guardianship, adoption and succession are drawn from the religious traditions of the several communities, and article 44 directs the State to endeavour to secure a uniform civil code. The first plane raises questions about secularism and religious freedom; the second raises questions about equality within a community and about legal uniformity across communities.
The first plane: religion as the subject of the law
What the State may not do. Establish a religion, compel a person to pay taxes for the promotion of a religion, provide religious instruction in a wholly State-funded institution, or discriminate on the ground of religion.
What the State may do. Regulate or restrict any economic, financial, political or other secular activity associated with religious practice; make law providing for social welfare and reform; throw open Hindu religious institutions of a public character to all classes and sections of Hindus; and regulate the administration of religious property.
Where the argument happens. At the line between the religious and the secular, which the courts draw with the essential religious practices doctrine, and at the reach of the words "social welfare and reform" in article 25(2)(b).
The chapters on this plane. [Freedom of Religion: Articles 25 to 28], [The Essential Religious Practices Doctrine], [Secularism], [The State and Religion: No State Religion], [Religion as a Divisive Factor], [No Discrimination on the Ground of Religion], [Who Is a Minority], [Articles 29 and 30: The Minority's Educational Rights], [The National Commission for Minorities], [Conversion and the Law], [Religious Freedom against Social Reform], [Temple Entry], and [Places of Worship, and the Character Frozen in 1947].
The second plane: religion as the source of the law
What personal law is. The body of rules governing a person's family relations and property on death, applied to them by reason of the religion they belong to rather than by reason of where they live.
What it covers. Marriage and its conditions, divorce and its grounds, maintenance, guardianship and custody, adoption, succession and inheritance, and in some communities gifts, endowments and wakfs.
Religion and the Law: The Two Questions
Why India has more than one. Because the British administration, from the Regulation of 1772 onwards, decided to apply to Hindus and Muslims their own laws in these matters, and the practice hardened into a permanent feature of the legal system that independence did not remove.
The chapters on this plane. [Personal Law: What It Is, and Why India Has Several], [The Hindu Code Bills], [Muslim Personal Law and Maintenance: Shah Bano to Danial Latifi], [Triple Talaq], [Christian and Parsi Law, and the Special Marriage Act], and [The Uniform Civil Code].
Where the two planes meet, and why that is the hardest part of the topic
The meeting point is this question: is personal law subject to the fundamental rights?
If it is, then a rule of a personal law that discriminates between men and women is void under articles 14 and 15, and the courts can reform every personal law without Parliament.
If it is not, then personal law can be changed only by legislation, and the freedom of religion in article 25 protects it from the courts.
The doctrinal hinge is article 13(3)(a), which defines "law" for Part III as including custom or usage having the force of law. Whether uncodified personal law falls inside that definition is the most contested question in this topic and is argued out in [Personal Law: What It Is, and Why India Has Several].
And the practical consequence runs through five later chapters. Shah Bano, Sarla Mudgal, Shayara Bano and Sabarimala are all, at bottom, cases about how far a court may go into a religion's own rules.
A worked example of the confusion this chapter exists to prevent
Question: "Critically examine the relationship between Religion and Law in a secular state. Explain how does the Indian Constitution maintain a balance between religious freedom and social reform in India." That is February 2026, question 2.
The mistake. To answer it entirely with personal law: Shah Bano, triple talaq, the uniform civil code. Those are the second plane, and the question is mostly about the first.
The right shape. Articles 25 to 28 and what they permit the State to do; secularism as a basic feature; the essential practices doctrine as the line between the religious and the secular; article 25(2)(b) as the express reform clause; the temple-entry cases as the clearest working of it; and only then personal law, as the place where the balance is hardest to hold.
And the reverse mistake. MU's 2025 question, "In what ways do religious-based personal laws contribute to social division, and how can legal reforms promote uniformity and social harmony?", is entirely on the second plane. An answer that spends half its length on the essential practices doctrine has misread it.
Religion and the Law: The Two Questions
The vocabulary this topic needs
Secular. Of or belonging to the world rather than to religion. A secular activity is one that can be described without reference to any religious doctrine.
Denomination. A religious sect or body having a common faith and organisation and designated by a distinctive name. It matters because article 26 gives rights to a denomination that article 25 gives to an individual.
Essential religious practice. A practice which the religion itself regards as an essential and integral part of it, and without which the religion would be fundamentally altered. Only such practices attract the fullest protection.
Personal law. Defined above.
Codified and uncodified personal law. Codified personal law is contained in a statute, such as the Hindu Marriage Act 1955; uncodified personal law is not, and Muslim personal law in India is largely uncodified. The distinction decides which route a reform must take.
Minority. A community numerically smaller than the rest of the population of the State, the unit of comparison being the State and not the country.
What this does NOT mean
It does not mean the two planes are unrelated. Article 25(2)(b), the reform clause, is on the first plane and does most of its work on the second.
It does not mean personal law applies only to family matters. It reaches property on death, and through wakfs and endowments it reaches large institutions.
And it does not mean that a secular State is one indifferent to religion. The Indian conception is dealt with in [Secularism], and it is not the wall-of-separation conception.
Quick revision
Two planes. First: religion as the subject of the law, articles 25 to 30, secularism, minorities, essential practices, the reform clause. Second: religion as the source of law, the personal laws of marriage, divorce, maintenance, guardianship, adoption and succession, and article 44. They meet at the question whether personal law is "law" within article 13(3)(a) and so subject to Part III. Vocabulary: secular, denomination, essential religious practice, personal law, codified and uncodified, minority.
Test yourself
1. State the two planes on which religion and law meet in India. Religion as the subject of the law, governed by articles 25 to 30, and religion as the source of the law, in the personal laws of the several communities with article 44 directing a uniform civil code.
2. Give three matters governed by personal law. Marriage and its conditions; divorce, maintenance and guardianship; and succession and inheritance. Adoption and, in some communities, endowments and wakfs are also personal law.
3. Why does India have more than one personal law? Because the colonial administration, from the Regulation of 1772, chose to apply to Hindus and to Muslims their own laws in matters of family and succession, and that practice hardened into a permanent feature of the legal system which independence did not remove.
Religion and the Law: The Two Questions
4. What is the doctrinal question at which the two planes meet? Whether uncodified personal law is "law" within article 13(3)(a), which includes custom or usage having the force of law. If it is, it must answer Part III and can be reformed by a court; if it is not, it can be changed only by legislation.
5. Define denomination and say why the definition matters. A religious sect or body having a common faith and a common organisation and designated by a distinctive name. It matters because article 26 confers on a denomination rights to establish and maintain institutions, to manage its own affairs in matters of religion and to own and administer property, which are additional to the individual rights in article 25.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.