Women are constantly fighting a battle for equality. In India, they are also currently fighting to be treated as equals in the eyes of their gods. Indian feminism has always been a rather unique debate, owing to various ethnic influences that are characteristic of the cultural minefield that India is. However, this debate encompasses not only feminism, but religious practices and their conflict with constitutional law.
Recently, women's right activists have united to challenge the restrictions imposed on women with regard to entering places of worship. This phenomenon is not recent, nor is it restricted to a single religion. Hindu temples, Muslim mosques and dargahs and even some Christian churches limit the access of women.
These age-old customs are backed by a reasoning that presumes that women are somehow impure, or second-rate citizens. Most shrines cite menstruation as the ground on which the entry of women is limited, implying that a natural biological process renders a woman unworthy of the right to worship. Women activists have raised a furore in Indian courts, asserting that this ban is arbitrary, unconstitutional and in violation of their fundamental rights.
Activist Trupti Desai of Bhumata Brigade, who recently led women worshippers of the Shani Shingnapur shrine to a thumping victory, asserts:
"If the Constitution of this country has given us equal rights, then we want to assert these rights. If men are allowed to enter inner sanctums at places of worship, we, too, want that right. By entering the inner sanctum, we are seeking to do away with the wrong traditions that exist in this country."
Indeed, the word "tradition" is most often deployed by patriarchal religions as a euphemism for practices designed to discriminate against women and demean them as impure -- whether menstruating or not.
The word "tradition" is most often deployed by patriarchal religions as a euphemism for practices designed to discriminate against women and demean them...
Articles 14 and 15(1) emphasize equality before the law, and are two facets of the same fundamental right. The articles emphasize the fact that any discrimination which is based only on the ground of religion, race, caste, sex or place of birth is prohibited. Article 15(1) implies that there may be discrimination on other grounds, but these cannot be arbitrary, capricious or oppressive. They have to be reasonable.
Article 25 of the Constitution guarantees freedom of conscience and free profession, practice and propagation of religion to all the citizens of the Union of India. Article 26(b) awards to religious categories the privilege to deal with their own undertakings in the matter of religion. These rights are not absolute rights; they are subject to public order, morality and health, as well as to the other provisions of Part III.
The right under Article 25(i) is further subject to the right of the State to make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice. It is further subject to the right of the State to provide legislation for social welfare and reform.
Can religious practices be subject to legislation and judicial review?
The religious rights guaranteed under Articles 25 and 26 are not absolute and are subject to welfare legislation made by the State. The Bombay High Court has said:
"Religion in a modern democratic State is purely a matter of the individual and his God; with the religious beliefs of the citizen and his religious practices normally the State would not interfere. But if these religious beliefs or practices conflict with matters of social reform or welfare on which the State wants to legislate, such religious beliefs or practices must yield to the higher requirements of social welfare and reform."
Now a sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief. If religious practices run counter to public order, morality or health or a policy of social welfare upon which the State has embarked, then the religious practices must give way before the good of the people of the State as a whole.
A sharp distinction must be drawn between religious faith and belief and religious practices. What the State protects is religious faith and belief.
Article 13 of the Indian Constitution -- the main source of judicial review in the Indian context mandates that any "law" that violates a fundamental right is void. The Bombay High Court held that the definition of law cannot be restricted to Article 13(2) alone and therefore "laws in force" would include customs or usage, having the force of law. The Court chose to interpret the meaning of "law" to include customs, but not personal law. Thus, while personal law is exempt from the application of the Constitution, customs are not. Hence, it is clear that according to Article 13 of the Indian Constitution, the court is free to strike down any "custom" or "usage" which is in contravention of the fundamental rights of a person.
India's treaty obligations under international law
Following the practice of non-discrimination allowing religious freedom and uplifting women is an obligation that India has to not only its citizens, but the international community as well.
The Universal Declaration of Human Rights (UDHR), of which India is a signatory, requires that it gives to its citizens freedom of religion, and the right against discrimination on the basis of gender.
Notably, the International Covenant on Civil and Political Rights 1966 (ICCPR), of which India is a signatory, says:
Freedom to manifest one's religion or beliefs may be subject only to limitations as are prescribed by law that are necessary protect public safety, order, health, or morals or the fundamental rights and freedoms of others. As it has been established earlier, these exceptions are not relevant to women and their access to places of worship.
Further, India is also a signatory to the Convention on the Elimination of All forms of Discrimination against Women, 1979 (CEDAW), which requires India to eliminate discrimination against women and recognize that they should be treated at par with men in the eyes of the law.
The right to equality and right against discrimination fall under the ambit of jus cogens --principles of international law which cannot be set aside.
In addition to all this, the right to equality and right against discrimination fall under the ambit of jus cogens --principles of international law which cannot be set aside. This rule will apply in the context of customary rules so that no derogation would be permitted to such norms by way of local or special custom as jus cogens will always override domestic law.
What needs to be done
Having considered both religious and constitutional factors and having regard for the limitations on legislative and judicial interference put into place by the Indian Constitution, the sanctity of religious beliefs as well as the rights guaranteed to women by the State, I find that there is a pressing need for the legislature to create a central law which outlines the rights and duties of administrators and worshipers, especially women. This law should elaborate upon the right to worship and the right against discrimination available to all Indians in the context of entry into places of worship of all religions. Thus, it would follow that women could not be restricted from entering places of worship. Further, the judiciary should strike down all laws and customs which allow for such discrimination against women and declare them unconstitutional.
The purpose of a holy shrine is worship, a deeply scared and sentimental act between a person and their god. The authors do not see how restrictions on women could help the act of worship, but do believe that such restrictions take away from women a right guaranteed to them by the Constitution.
In a secular state, there is little room for State intervention in matters of belief, but there is a responsibility owed to the women of this country...
Not only does the State have an obligation to its citizens to uphold their rights, it has one to the international community as well. Customary international law as well as the various treaties that India is a signatory to bind the nation to the mission of providing its citizens protection against discrimination and the right to worship and practice their religion.
It is these human rights, guaranteed to each person, that we need to uphold. In a secular state, there is little room for State intervention in matters of belief, but there is a responsibility owed to the women of this country, and India must step forward to honour it.
With inputs from Meghana Rao.
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