India is a unique blend of different religions in one country living with harmony among them. India also has the longest written constitution in the world guaranteeing the rights as well as defining the duties of the citizens, establishing a democratic government system which will work for the people and will be functioning by the people. Indian constitution has given various rights to its citizens and the government is bound to respect these rights which are also known as fundamental rights of the citizens.
These rights are available only against state and the definition of the state is also given in the constitution itself. For the purpose of Part III of the Constitution, the definition is given in Article 12. Article 12 gives the word “state” a much wider and elaborative interpretation which involves Central Legislative body and executive, State legislative body and executive, Local authorities and other authorities. First two terms are self-explanatory but the latter two required interpretation and hence the court interpreted the matter into the best interest of the public at large and the term other authority has a much wider interpretation than any other term.
Coming back to the fundamental rights, there are three rights which cannot be ignored by any authority while making or implementing any law, rule, policy, etc. these rights are also known as the Golden Triangle.
- Article 14 – Article 14 consists of the Right to equality. This right is given to all people irrespective of their citizenship. The right to equality consists of two concepts from different countries namely England and America. The concept of Equality before Law has been taken from England whereas the concept of Equal Protection of law was taken from the Constitution of America.
- Article 19 – Article 19 consists of the Right to freedom. This right although has given to the Citizens only but it is an important right when we talk about liberty and the other freedoms have been given or not. Article 19 contains 6 freedoms given in Article 19(1) and in rest of the Article from 19(2) – (6), it contains the restrictions over these freedoms assured in the subclause 1 of the Article 19.
- Article 21 – Article 21 consists of the Right to life and personal liberty. The right to life and personal liberty is available to each and every person in India. The right to life and personal liberty is considered to be the base of all fundamental rights. Many rights have been inherited in this article itself and even many of the DPSPs have been converted in fundamental right under this article hence it can be treated as the base of all fundamental right.
There are other Fundamental Rights as well which help the country to maintain harmony and peace in different – different cultures and religions. One of these fundamental rights is right to freedom of religion in India, which gives the right to every citizen to profess any religion of their choice and to pray peacefully.
In every domain the right to equality is a major topic when it comes to discrimination on the basis of gender, as the constitution of India says that every person will be equal in the eyes of law and no one can be discriminated on the basis of caste, creed, race, gender, etc. but when we used to come across the religious disparities we used to remain silent about the matter unless one PIL was filed against the ban of women between the age of 10-50 in Sabarimala temple which is stated in Kerala.
Gender Discriminating Religious Organizations:
In India, religion is a very sensitive issue and people often get offended when there is any statement made against their religion or any particular religious practice, etc. The people managing the trusts and other bodies of the religious organization follow some rules and rituals which are being followed from ancient time by the followers of that particular religion. Some of the examples can be Sabarimala Temple, Kerala, Mahalaxmi Temple, Kolhapur, Maharashtra, Shani Shinganapur temple, Ahmednagar, Maharashtra, and Haji Ali Dargah, etc.
Shani Shinganapur Temple and Women Entry
Let’s start the discussion with Shani Shinganapur temple, Ahmednagar, Maharashtra. The first placed where this discrimination was challenged, The debate over the issue of entering women into the temple escalated after a woman, in 2015, tried to enter and offer prayers at the Shani Shingnapur temple, in ‘breach’ of the age-old practice of prohibiting entry of women. As the Court has said in various cases and even where a law guaranteeing temple entry for all classes of Hindus for temples which are generally open to the public such a law will validly apply to not just temples which are meant for the general public but also temples for the exclusive use of a denomination. Even if it had been claimed that the Shani Shingnapur temple had been built for a particular denomination of Hindus, women would still have a right to enter such temples under the Maharashtra Temple Entry law. The Bombay High Court also backed the entry of women inside the core shrine area of Shani Shingnapur temple located in Ahmednagar district of Maharashtra. Responding to a bunch of petitions challenging the ban on women’s entry inside the ancient temple, the court observed that “women cannot be barred from entering the Shani Shinganapur temple. Even women can go where men can,” the high court said. There is no law preventing the entry of women if men are allowed, even women should, the high court maintained. The Bombay HC, while agreeing to hear the matter on April 1, also asked the Maharashtra government led by the then Chief Minister Devendra Fadnavis to make a statement before it on the same day. The ruling came several weeks after a bunch of Public Interest Litigations (PIL) was filed in the Bombay High Court challenging the century-old tradition of prohibiting entry of women inside the core shrine area of Shani Shingnapur temple in Ahmednagar district of Maharashtra. One such PIL was filed by two women activists – Vidya Bal and Nilima Varta – to sought directions for the state government and temple authorities to ensure that the prohibition is set aside and women are given entry not just inside the temple but also in the sanctum sanctorum. The petition claimed that the prohibition is arbitrary, illegal and violative of the fundamental rights of a citizen. Besides, such a prohibition also encourages gender disparity, the petition said. After the ruling came, the trust changed the rules and allowed the females to enter in the temple and to offer their worships to Lord Shani and even welcomed the activist Trupti Desai, who was well supported by the media as well as women welfare NGOs. This step of the board encouraged the women activist in order to get an entry in all other temples as well.
Sabarimala Temple and Women Entry Controversy:-
Sabarimala temple dispute is also a similar kind of dispute where the Lord is a bachelor and hence the women from the age of 10 years to 50 years were banned to enter into the premises as it was likely to corrupt the Lord. A PIL was filed by the Indian Young Lawyers Association, stating that the ban is against the right to equality of women and it is arbitrary in nature hence it should be struck down and all women should be allowed to worship.
The five-judge constitution bench headed by Chief Justice Dipak Mishra, in its 4:1 verdict, said banning the entry of women into the shrine is gender discrimination and the practice violates the rights of Hindu women. It said religion is a way of life basically to link life with divinity. The court observed that it can’t be oblivious to the fact of the case that a class of women is disallowed due to physiological reasons (menstruation). The CJI said devotion cannot be subjected to discrimination and patriarchal notion cannot be allowed to trump equality in devotion. While Justices R F Nariman and D Y Chandrachud concurred with the CJI and Justice A M Khanwilkar, Justice Indu Malhotra gave a dissenting verdict. Ironically, in the 4-1 verdict on Indian Young Lawyers Association & Others vs. the State of Kerala & Others, also known as Sabarimala case, the only dissenting vote was of the sole woman judge on the bench: Justice Indu Malhotra. Justice Malhotra, in her dissenting judgment, said that issues which have deep religious connotation should not be tinkered with to maintain a secular atmosphere in the country. However, the Supreme Court verdict – that the Sabarimala temple must be thrown open to women of all ages – should be seen as another victory for the cause of gender equality.
Views in Support of Supreme Court Verdict –
- Preventing women from entering the places of worship goes against Articles 14, 15, 19, and 25 of the Indian constitution, which deal with the right to equality, the right against discrimination based on gender, freedom of movement and freedom of religion.
- The excluded women claim that barring them access to the inner sanctum of the shrine violated their fundamental right under Article 25(1) to freely practice their religion.
- Right to manage its own religious affairs under Article 26(1) cannot “override the right to practice religion itself”, as Article 26 cannot be seen to overrule the right to practice one’s religion as guaranteed under the Constitution of India.
- Restricting the entry of women into places of worship is one of the ways of imposing patriarchy. Often the restrictions are based on patriarchy and not religion. Banning entry to the temple is discriminatory since it subverts the idea of everyone being equal to God.
- From the abolition of Sati to temple entry proclamation to the abolition of untouchability, reforms have been judicial or legislative.
- In April 2016, the Shani Shingnapur temple, which had barred women from entering its core area for over 400 years, allowed women to pray inside the temple following the court’s orders.
There are people who do not support the judgment given by the Supreme Court and hence oppose the entry of women in the temple. As a leader of these people, one MP from Kerala has presented a private bill in order to reverse the effect of the verdict of the Supreme Court.
Key Points of Sabarimala Sreedharma Sastha temple (Special Provisions) Act, 2019 –
The bill defines Conversion, religious practices, and Sabarimala Sreedharma Sastha temple. Other than this the proposed bill in section 3 says that any suit, appeal or other proceedings regarding any religious practice of the temple cannot be filed and even if there is any judgment or decree with respect to the same matter, it will have no effect and the practices will continue to be same as they were before 1 September 2018. Provided that if any suit, appeal or other proceedings, instituted or filed on the ground that conversion has taken place in the religious practices after the 1st day of September 2018, is pending on the commencement of this Act, such suit, appeal or other proceedings shall be disposed of in accordance with the provisions of sub-section 1 of the section 3. The bill ends with a mandate that the Central government and Kerala government to ensure the enforcement of the practices.
Other than this there are certain points because of which people oppose the decision given by the Supreme Court.
- Women are banned from entering the temples to preserve ‘purity’. The reason cited in Sabarimala case is that women during their menstruation period are not supposed to enter places of worship.
- Referring to the presiding deity Lord Ayyappa as a Naishtika Bramhachari, much point out that it is the celibate nature of the deity that forms the basis of the practice and not misogyny.
- Sabarimala was a separate religious cult with its own rules.
- Article 15 of the Constitution does not apply to religious institutions. Article 15(2) provides citizens with the right to access to places such as hotels, shops and so on but nowhere does it mention public temples.
- Some of those who oppose women entry argue that their actions are protected by Article 25(1).
- Article 25(2) pertains to only secular aspects and it is only pertaining to social issues, not gender or religious-based issues.
Haji Ali Dargah and Women Entry
Haji Ali Dargah, which has stood in the waters of the Arabian Sea near Mumbai since the 15th century, houses the grave of Peer Haji Ali Shah Bukhari, the shrine’s patron saint. And women were not exactly always banned here. The trust had invoked the Sharia law to put the ban in place. As per the Sharia law, no women can visit any cemetery or grave.
Bharatiya Muslim Mahila Andolan (BMMA), a Mumbai-based non-profit had moved the high court challenging a 2012 decision by the Haji Ali Dargah Trust to bar women from stepping inside the inner sanctum and allowing them to enter only the main premises of the Dargah.
The trust presented three main arguments in the Bombay High Court to defend the ban:-
- Women clad blouses with wide necklines will “show their breasts” when they bow at the mazaar.
- The ban prevents women from mixing with men at the sanctum, thus preventing sexual harassment and eve-teasing.
- Unaware of the provisions of the Shariat earlier, the trust members now believe the ban is more of an amendment.
High Court while deciding the matter said, “The exclusion of women from the inner sanctum of the Haji Ali Dargah by the Dargah Trust violated not only their fundamental right to religious freedom but also their right to equality and non-discrimination under the Indian Constitution.” On August 26, 2016, the HC had said the ban contravened Articles 14, 15 and 25 of the Constitution and ordered haji Ali trust to allow women to enter into the shrine. Haji Ali trust went into appeal against the decision and there was already a similar matter pending before the Supreme Court which was related to Sabarimala temple in Kerala.
The Dargah Trust had moved the apex court challenging a 26 August 2016, Bombay high court ruling that allowed women to enter the inner precincts (mazaar) of the famous 15th-century shrine to Sayed Peer Haji Ali Shah Bukhari.
A resolution unanimously passed by the Trust in August 2015 said: “entry of women in close proximity to the grave of a male Muslim saint is a grievous sin as per Islam”. In a watershed verdict, a high court bench comprising justices V.M. Kanade and Revati Mohite Dhere quashed the trust’s ban and said that temples constitute “public spaces that prohibit discrimination” under Article 15 of the Constitution. In April, the Bombay high court had also ruled against a 400-year-old ban on women entering the inner sanctum of the Shani Shingnapur temple in Ahmednagar district of Maharashtra after Bhumata Brigade, a women’s rights group, challenged the ban. The decisions give hope to a similar plea filed against a ban of the entry of women into the Sabarimala temple in Kerala, a matter the apex court was hearing at that time.
Courts Involving in Religious mMtters:-
This clash between religion and fundamental rights and the use of the courts to resolve it is not new. The Supreme Court has previously ruled on the legality of religious ex-communication, the exclusion of Dalits from temples, and the hereditary caste-based succession of temple priests. To mediate the competing claims of individuals, communities and the state, very early on in its history, the Supreme Court invented something that it called the “essential religious practices test”. Under this test, ostensibly religious practices could gain constitutional sanction only if, in the view of the Court, they were “essential” or “integral” to the religion in question. In the beginning, the court emphasized that essential religious practices would have to be determined by taking an internal point of view and looking to the tenets and the doctrines of the religion itself. In later years, however, the court began to take an increasingly interventionist stance, using the essential religious practices test to make wide-ranging, often freeing from ties, claims about religions, and even trying to mould religions into more rationalistic and homogenous monoliths, while marginalizing dissident traditions. The high watermark of this approach came in 2004 when the court held that the public performance of the Tandava dance was no essential part of the religion of the Ananda Marga sect, even though it had been specifically set down as such in their holy book.
Religion should not be a matter of dispute, especially when we have more important issues to be dealt with. The political parties are dividing people on the basis of religion, caste, race, gender, etc. in order to gain a political advantage of the same. The steps taken by various religious organizations to remove this disparity is recommendable. People opposing these decisions must understand that society is changing and rituals, traditions, and practices will have to change as per the requirement of the society as these practices are for society. These practices had some meaning when they were created but now as the scenario is changing the practices are also required to be changed.