July 13th, 2009 at 08:57am
Under Criminal Law
SOURCES OF HINDU LAW
India is a huge country not only in terms of its geography but also its population, which has various religions, customs and practices. However, India has two main personal laws i.e. Hindu law and Muslim Law. Before moving ahead, I would like to define the Law – ‘Law is a large body of rules and regulations based mainly on general principles of justice.’
Hindu Law is a personal Law (Law of Marriage, Divorce, Adoption, inheritance etc) evolved through long period of time from many sources (mentioned below) by Hindu religious community of India. Therefore, I love to call it ‘Sedimentary Law’ because Laws from various sources Sedimented and consolidated into Hindu Law. The important sources of Hindu Law are:
1) Ancient Source
2) Modern Source
Ancient source is the main source of Hindu Law, which further subdivided into viz –
a) Sruti: the literal meaning is – ‘what was heard’, and it is originated from Vedas i.e. Rig, Yajur, Sama, and Atharva Vedas. Basically, it is praise in the forms of hymns of the earliest Hindu tradition which deals – types of marriage, adoption, partition etc.
b) Smriti: literally means – ‘what is remembered.’ It is also known as ‘Dharma Sutras’ and available in the prose from. The important Smritis are ‘Manu Smriti, Yagnavalkya Smriti, Narada Smriti etc and, it deals the civil and criminal law, procedural law, marriage Law etc.
c) Commentaries: the discrepancy between above two gives rise a third one i.e. ‘Commentaries, which later on beget two schools i.e. Mitakshara (Vijyaneshwara school) and Dayabhaga (Jimuthvahana school) associated with particular areas.
d) Customs: it is a set of rules and norms, practice by particular society for a long period of time. However, ‘customs arise whenever a few human beings come together as no association of human beings can exit permanently without adopting consciously or unconsciously, some definite rules governing reciprocal rights and obligations’ (Vinogradoff, Collected Papers). “Indeed custom is coeval with the very birth of the community itself.” (Jurisprudences).
Modern Source refers to the rules and regulations established through legislation by educated and intellectual people. These laws almost codified laws such as –
a) Hindu Marriage Act (1955),
b) Hindu Succession Act (1956),
c) Hindu Minority and Guardianship Act (1956) and
d) Hindu Adoptions and Maintenance Act (1956)
After independence (15 August 1947), India constituted its own Constitution, where India defines itself as a secular country, like this given space to flourish all religions with its own customs and laws. Therefore, the Indian Legal System is a Common Law-cum-Civil Law. Apparently, Hindu Law is a personal law and applicable to person and family relations only.
July 13th, 2009 at 03:01am
Under Uncategorized
Very often on our courses, we illustrate the positive and negative pendulum that can hold sway in a diverse society. Positively, you make an improvement for one individual or a group and you secure a spin off benefit for those outside the group. Removing debris from a footpath will make things safer for those with mobility issues but also will enhance the environment and help those carrying shopping or even pushing a pram!
But sometimes, you make an improvement in one area and create tension, resentment, jealousy and at worse a severe backlash. The battle of the sexes, the perceived notion that “they” are getting more benefits than me and impatience with those less able is all part of this potentially poisonous cocktail! But nowhere it seems is this negative backlash more to the fore than between those who hold genuinely religious beliefs and those who wish to be free to live their lives under the law as gay, lesbian or bisexual individuals.
In recent months, there seem to have been an avalanche of claims reaching tribunals reflecting these theological and secular tensions. The overarching lessons emerging from what have been largely employers victories are to be found in common sense key questions:-
“Have you carefully considered the complaint or request in front of you?”
And if you have, has your response been:-
· Reasonable?
· Practical?
· Proportionate?
Viewed against this backcloth, the following recent cases can be seen in real perspective:-
Miss Ladale v Islington Borough Council
The applicant, a devout Christian, was employed as a registrar with the local authority. Her duties included registering marriages. When the Civil Partnership Act 2004 was introduced in December 2005, all registrars were required to carry out civil partnership ceremeonies.These were generally shared out in approximately the same proportion as marriage duties. Miss Ladale refused to carry out these new duties. Initially, she won her claim of direct and indirect discrimination as well as harassment. But an essential part of the Employment Appeal Tribunal ruling which overturned the earlier victory is interesting:-
“ The Council was entitled to decide that Miss Ladale could not pick and choose which duties she would perform depending on her religious views, at least in circumstances where her personal stance involved discrimination on the grounds of sexual orientation.”
Gary McFarlane v Relate
Mr McFarlane was employed by Relate as a counsellor. He was trained by them to be a psychosexual therapist and his role in consequence was extended to giving advice on sexual problems encountered by couples. He too was a devout and practicing Christian. When he refused to give advice to same sex couples, he was initially suspended and ultimately dismissed for failing to uphold Relates equal opportunities policies. The tribunal ruled against him, with the telling comments:-
“His dismissal by Relate was a proportionate means of achieving the legitimate aim of maintaining its commitment to providing a service to all sections of the community without any suggestions of discrimination. Relate would have treated any other employee in the same way, who, for reasons unrelated to religion had acted in a way so at odds with its equal opportunity policy.”
Mohammed Ahmed v TESCO
Mr Ahmed, recruited by the supermarket giant, as a forklift truck operator refused to handle alcoholic goods as part of his duties. He is a devout Muslim and as such he said could not handle alcohol. TESCO, who won the case, said that on appointment Mr Ahmed had never raised such objections and was indeed told in his job interview about the wide range of goods that were stored and subsequently sold in their supermarkets, including alcoholic drink.
John Mitchell v Strathclyde Fire Service
Mr Mitchell, a Christian fireman, was amongst a group of fire-fighters at a Glasgow fire station who refused to attend a gay pride march with some claiming that they were too embarrassed to attend in uniform and others saying that their presence would be “contrary to their moral beliefs”. They received a range of disciplinary sanctions from demotion to written warnings. The Fire Service decided to reach a settlement with Mr Mitchell in relation to his complaint, with an apology and an agreement to prevent him from discussing the case being part of the out of court settlement. This would have been an interesting case had it gone the whole way but it does point to the potential for “win-win” solutions outside the legislative framework.
“Win-Wins” have been secured in recent times in terms of:-
And, of course, the recent case of the Christian bus driver agreeing to drive buses with “No God” adverts only if no other vehicles were available. Other passenger transport authorities across the country have reached a similar compromise.
Many employment cases can be resolved on a “win-win” basis. But if they cannot, the overarching principles that lie paradoxically at the heart of any attempt at consensus will generally prevail in law. Namely, what is reasonable, practical and proportionate?
These are, of course, employment issues. Laws governing the provision of goods, facilities and services now embrace the religion & belief strand as well as sexual orientation and gender identity. It will be interesting in the months ahead if the same tensions between religious beliefs and the notion that the “customer is always right” prevail in this hard headed commercial environment?!
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