Introduction

“There is no chance of the welfare of the world unless the condition of women is improved. It is not possible for a bird to fly on one wing” were the thoughts of one of the greatest sons of India, Swami Vivekananda. The application of this phrase even today is indeed unfortunate. Gender inequality still survives in it’s grandeur through various sources, one of them being religion.

The Indian Constitution is one of the longest Constitutions in the world because our forefathers framed it after a detailed study of the constitutions of several countries. India being such a diverse country, was influenced tremendously by the various religious practices of different religions. Some of them placed restrictions on women, some forbade certain social classes or castes from practising particular professions, etc. Religious practices and customs significantly mold the social life of any nation. In order to protect the very basic human rights of the people in the background of such existing practices and customs, certain provisions were made in Part III of the Constitution, dealing with the fundamental rights of citizens and even non-citizens.

Gender inequality is one of the most typical embodiments of social inequality. It is even enforced by religious forces in the semblance of various customs, practices, traditions, or restrictions. To curb the same, the Bombay High Court, while considering the constitutional provisions held that no law prevents entry of women in any place and conferred the duty upon the State governments to protect the rights of women.

Gender Equality: Legal Provisions

The essential right to equality has been guaranteed as a fundamental right under Article 14 of the Indian Constitution which states as follows:

The State shall not deny to any person equality before the law and equal protection of the laws within the territory of India.

The Indian Constitution embraces both the British doctrine of “equality before the law” and the American doctrine of “equal protection of the law”. Equal protection of law refers to the right to equal treatment in similar circumstances, both in the privileges conferred as well as in the liabilities imposed by law . However, Article 14 does permit reasonable classification for the purposes of legislations purported to bring about social equality in its true sense. Further, Article 15(1) embodies the following provisions:

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.

The most common defence to justify the prevailing gender discrimination as regards the entry at religious places is in Articles 25 and 26 of our Constitution. The extent to which these Articles provide freedom to the authorities of such institutions is a matter adjudicated by the Courts, considering numerous nuances of the same. India being a secular nation, as was also proclaimed in the Preamble by the 42nd Amendment to the Constitution in the year 1976, already had safeguards in the garb of Articles 25-28. These provisions undoubtedly play a fundamental role in determining the validity of various practices undertaken in the name of religion.
Article 25 guarantees to all persons equally the right to freely profess, practise and propagate religion, subject to, public order, morality and health. Thus Article 25 guarantees both:

1. Freedom of conscience and
2. Freedom to practice, profess and propagate the religion.

Further, what exactly constitutes religion and what all is included within the ambit of this Article was considered by the Supreme Court in Ratilal v. State of Bombay , wherein it was laid down that the word ‘religion’ is not only restricted to an opinion, doctrine or belief but also extends to the outward expressions/acts of the same i.e. any religious practises or performance of acts in pursuance of any religious belief. Therefore, Article 25 protects acts done in pursuance of religion including rituals and observances, ceremonies and modes of worship which are integral parts of religion. In Tilakayat Shri Govindalji Maharaj v. State of Rajasthan , the Supreme Court held that whether a practice is an integral part of the religion or not should be deduced by the Courts on the basis of the evidence available as to the conscience of the community and the tenets of its religion. However, not allowing women to enter any religious place infringes her right to freedom of religion under Article 25.

The essential part of religions or religious practice was held to be decided by the courts by considering a particular religious doctrine and also include the practices regarded by the community as a part of its religion . Moreover, it has also been held that the right to worship doesn’t extend to any and every place.

However, in Ismail Faruqui vs Union of India , the Court held that if a particular place had a “particular significance for that religion”, access to that place for the purposes of worship would be protected under Article 25. In another way, if any inner sanctum/tomb of a dargah does not bear special significance, every person, both women and men, would have the right to offer prayers at that place.

Civil Rights

It was held by Justice Das Gupta in Sardar Saifuddin vs State of Bombay , that the right to offer worship at a particular place can be enforceable in the court as a civil right, even if it does not have the status of a constitutional right under Article 25 of the Constitution. According to the learned judge,

“a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit.”

Further, Article 26 proceeds to guarantee freedom to manage religious affairs by providing that every religious denomination or any section thereof has the right-

1. To establish and maintain institutions for religious and charitable purposes;
2. To manage its own affairs in matters of religion;
3. To own and acquire movable and immovable property; and
4. To administer such property in accordance with law.

In S.P. Mittal v. Union of India , the Supreme Court explained that the Indian Constitution protects the rights of minorities to practice, profess and propagate their religion, but whilst interpreting the scope and content of the guarantee contained in the Articles, the Court will always have to consider the real purpose for incorporating these provisions in Part III of the Constitution. The Supreme Court had denied any jurisdiction to any outside authority to interfere with the decisions of any religious denomination or organisation as regards its autonomy to administer the religious matters. It was also held that any law which empowers any outside authority with such rights of administration will be violative of the fundamental right guaranteed by Article 26.

Trust’s Rights

The rights guaranteed under Section 26, as observed by the Supreme Court, are restricted to rituals, observances, ceremonies and modes of worship. Therefore, if any particular rituals (such as denying women entry to any religious place), is protected under Article 25 and Article 26, then no suit shall lie. In other words, the right to exclude women from any particular place/ sanctum depends on whether excluding women from that place amounts to an essential religious practice.

Essential Religious Practice

The right of any shrine/ dargah to discriminate on the basis of gender depends on whether the practice is an essential religious practice or not. Consequently, like in the Haji Ali Dargah case, denial of women’s right to enter the inner sanctum does not constitute essential religious practice, because it was not the customary practice. In fact, this practice started in the year 2012. Moreover, In Lakshmindra Swamiar , the Supreme Court noted that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion” and it is to be determined by the Courts.

In 1993, the Kerala High Court had considered a public interest litigation against the restrictions imposed by the Sabarimala temple on the entry of women aged between 10-50. All the religious implications and grounds of these restrictions were verified by the Court to determine as to whether such a restriction was violative of Arts. 15, 25 & 26, and whether such restrictions were based on relevant grounds. The religious values and tenets were also considered equally. It was concluded that such restrictions were a part of a customary usage and based on some relevant religious principles, they were not in violation of Articles 15, 25 & 26 of the Constitution. Hence, the imposition of restrictions was upheld by the Court. However, the Supreme Court is currently hearing the matter and has already observed that the temple management does not have the right to ban women from entering the temple as it leads to the violation of a Constitutional principle.

Despite the existence of this evil practice since time immemorial, we still don’t have any Central Act or Rules which act as an antidote to this gender inequality. Though some of the states have State Acts or guidelines, these are yet to be implemented. The Maharashtra Hindu Place of Worship (Entry Authorisation) Act, 1956 stipulated six months jail for any person who prohibits a person from entering a temple, but the State Government is unable to implement the same in 60 years. Similarly, Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 provides that every Hindu place of worship shall be open to all sections and classes of Hindus, and they should not be prevented from entry or performing any religious services. But the section contains a proviso that in the case of a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the rights of that religious denomination or section to manage its own affairs in the matters of religion.

Article 5(a) of the International Bill of Rights for Women i.e. CEDAW (Convention on Elimination of All Forms of Discrimination Against Women, 1979)provides that:

“State Parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles of men and women.”

As already set out in the Universal Declaration of Human Rights (UDHR), equality and non-discrimination are foundational principles of the international human rights legal framework. The human rights legal framework requires states not only to refrain from discrimination, but also obliges them to take appropriate measures to end discrimination by state and promote equality. Discrimination in law or in practice may prevent the realization and enjoyment of other rights. This requires states to establish equality under the law and address policies, programs, or even stereotypes that create or perpetuate discrimination.

To sum up, various provisions are purportedly made for abolishing gender inequality in all its forms, however, actual enforcement of such egalitarian principles comes into conflict with provisions for freedom of religion, and religious practices and India has recently witnessed such conflicts.

Legal Tussle

The ongoing legal battle in the Supreme Court about a woman’s right to enter the famous Sabarimala temple and the recent forcible entry of women inside the inner sanctum of the Shani temple in Shingnapur shows the clash between religious rights and gender equality of women.
Of late, gender equality is gathering momentum in Maharashtra and Kerala, there are also some other religious places which wholly or partially ban women. Kamakhya temple in Assam, the Sree Krishna temple in Thiruvananthapuram and the Jain Temple in Ranakpur, Rajasthan are few of them. The Supreme Court has already held that the places of worship that deny or restrict women’s entry have no constitutional right to do so.

In March 2016, the Bombay High Court held that women could not be barred from entering the Shani Shingnapur temple and that the Government is duty bound to protect the rights of women. Following this judgement, women’s rights activists started demanding entry to temples across the country.

Likewise, in the Ayyappa Temple, Sabarimala, Kerala, women between the ages of 10 and 50 are barred from getting into the temple and girls who have not started their period and women who have reached menopause are allowed into the temple. Though the final judgement is yet to be given by the Supreme Court, the court has observed that gender equality is a constitutional message and the temple management does not have the right to ban women’s entry. Moreover, the Bombay High Court is waiting for the verdict of the Sabarimala case to decide the matter of women’s entry in the inner sanctum of Haji Ali.

What causes Gender Inequality?

The root cause of gender inequality in worshipping places is because of the patriarchy prevailing in India since time immemorial. This system finds its validity and sanction in all the religions whether it is Hinduism, Islam or any other religion. As a result, males are the primary authority figures and the women as subordinates are supposed to accept all the practices, traditions or cultures imposed on them by society. It is not only society that’s responsible, but women are equally responsible for having accepted the system and being a part of it.

Illiteracy is a primary cause of gender inequality. Due to ignorance of their basic rights, women continue to suffer evils such as gender discrimination. All the practices followed by the religious organisations resulting in gender equality, are illogical and unconstitutional. In rural areas the situation is even worse due to lack of awareness, education and flexibility in attitudes.

The sufferings of unequal gender – Impacts of this inequality

“Gender inequality hurts all members of society, not just girls and women.” Gender inequality impacts the social, political, technological and legal well-being of the society, thus hindering the growth of the nation.

Firstly, a social impact on the minds of the people is created by the belief that men are more powerful and women are not at par with them. This leads to discouragement among women. In fact, desolation and lack of morale are possible outcomes of gender inequality and psychologically, it affects the mindset of the women.

Secondly, political parties use the tool of gender discrimination for vote bank politics and they indulge in this controversial issue till they misuse both religion as well as religious gender discrimination to their advantage. Likewise, presently, political parties are not trying to handle the issues of Lord Ayyappa Temple, Sabarimala, Kerala and just waiting on the judgement of the Supreme Court, as they believe that it is the duty of the judicial system of India to enforce the rights of the people. Recently, the Bombay High Court had asked the Maharashtra Government to implement the Maharashtra Hindu Place of Worship (Entry Authorisation) Act, 1956, which forbids the gender discrimination, all over the state. Now, we have to wait and see the action of the government and how they are going to implement this directive of the court.

Thirdly, gender discrimination also leads to technological impacts. “Happy to Bleed”, the campaign launched against menstrual taboos, and sexism that women are subject to, was in reply to the sexist statement given by the Devaswom chief of Sabarimala temple, Kerala. This campaign has also been joined by many people on social media sites and received enormous support from the whole country.

Fourthly, the legal impact of the aforementioned judgements create pressure on the parliament to make a comprehensive law for the entire country, irrespective of religion. The reason for a comprehensive law is that the Court will not have to interpret laws for each and every religion which leads to confusion and kills the Court’s time, too.

On one hand, the religious trusts claim that freedom of religion allows them to decide who gets access to places of worship, while on the other hand, it has already been observed by the Supreme Court that protection to Trusts is currently limited to rituals, observances and modes of worship that are integral parts of religion. The judiciary now has to decide whether traditions of excluding women from certain parts of a shrine constitute an integral and essential part of religion.

Conclusion

Pandit Jawaharlal Nehru once said:

“To awaken the people, it is the women who must be awakened. Once she is on the move, the family moves, the village moves, the nation moves.”

It is indeed ironic that a country being one of the oldest civilisations and the largest democracy in the world, ranked 130th in the Gender Inequality Index among 188 countries across the globe. Women in India are still struggling to get equal access to religious places, despite the fact that they have played a major role in the development of the country.
Gender discrimination leads to cultural, social, economic and educational differences which impede the growth of the country. To overcome these evils, women should be empowered by ensuring their right to equality.

The reform is paralysed by the lack of political will to review customs or personal laws. This imposes a greater responsibility on the courts to apply rigorous standards of judicial scrutiny for removal of injustice against women. The duty lies with the Supreme Court to determine that the infringement of women’s right to freedom of religion under Art. 25 cannot be allowed by protecting the similar freedom of the religious organisations. Freedom of religion and freedom to manage religious affairs needs to be harmonised with the right to equality. This might make India one of the few nations to enforce gender equality in all its forms, without giving in to the forces of religion. Although some of the recent judgements from the Courts are in favour of equal status of women in religious places, the problem lies in its implementation. So now all eyes are on the Supreme Court judgement in the Sabarimala case, which may indeed change the face of gender equality in worshipping places in India.

The list of legislations and judicial decisions may go on; however, the real change will come only when the attitude of people changes, and the management at religious places will treat men and women equally. In fact, in some cases, not only men but women are responsible for gender discrimination. They need to change the mindset developed due to this exploitative system. What is necessary is not just freedom of action, but also freedom of thought in women’s ability and willingness to question the unjust rituals or practices. The commitment to gender equality and non-discrimination can be fulfilled not only through the legislature but also by an active participation of the people and through multilateral organisations. The mere fact that “Women hold up half the sky” – does not appear to give them a position of dignity and equality, unless we start somewhere to make Gender Equality more than a slogan.

Rishav Buxi (V-IV) and Shreya Pandit (V-IV)

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