2.

The Fundamental Rights and Entry of Women at religious Institution

One of the most common forms of social inequalities that is observed in India is gender inequality.1
Gender inequality takes different forms in different regions, and correspondingly has a different
effect as well. The nature of these differences is owed to the cultural, geographical and historical
differences, and at the same time, the religious development in the area also has a relative effect
on the form of gender inequality taking place in a particular area.2 Around the world, women hold
differing status, and the inequality in different regions is strongly associated with the religious
practices that have been embedded deep within the practices of the predominant religion in the
area. However, gender inequality develops due to an array of complex variables which include the
religious norms, alongside the traditions prevalent in the given religion.3 This often causes the role
of the women to be subordinated in the society.4 The situation in India is in symmetry with such
inequalities, and the issue of gender biasness and inequality is not aliened with the Indian society,
and the context is exacerbated in India with reference to the religious beliefs where the feeling of
upholding those ideals is rooted deep in the Indian citizens.5 Such archaic beliefs continue to
plague the majority of the Indian society, and any change in that is heavily slow paced. The
religious predominance and the slow paced change in this situation has led to a predicament for
the development of women in India,6 though some change is being observed over the times.7
Despite that, a lot more needs to be achieved so that the society may be rid of gender inequality to
a considerable extent.8

The status of women, and the inequality against them can be gauged from the condition of how
religious institutions function in relation to the female section of the society.9 The values that they

1
JULIETTE GREGORY DUARA, GENDER JUSTICE AND PROPORTIONALITY IN INDIA: COMPARATIVE PERSPECTIVE (2017).
2
Kamila Klingorová & Tomáš Havlíček, Religion and gender inequality: The status of women in the societies of world
religions, 25 MORVIAN GEOGRAPHICAL REPORT (2015).
3
FAREDA BANDA & LISA FISHBAYN JOFFE, WOMEN’S RIGHTS AND RELIGIOUS LAW: DOMESTIC AND INTERNATIONAL
PERSPECTIVES, (2016).
4
Kamila Klingorová & Tomáš Havlíček supra note 58.
5
Amratya Sen, Many Faces of Gender Inequality, 18 FRONTLINE (2001).
6
Rajesh Komath, Religion as a Barrier in Women’s Empowerment, available at
https://www.thehindu.com/books/books-reviews/religion-as-a-barrier-in-womens-empowerment/article5364865.ece
7
Id.
8
YOGESH ATAL, SOCIOLOGY AND SOCIAL ANTHROPOLOGY IN INDIA, 468 (2009).
9
Religion Politics and Gender Equality, available at https://in.boell.org/2011/07/29/religion-politics-and-gender-
equality
strive to uphold work against the women, and the instances for the same galore. Indeed, in the
decade that closes to an end, the Judiciary in the country has undertaken steps to ensure that the
rampant discrimination and inequality can be curbed. The courts have taken the activist stand in
the cases such as the invalidation of the ban on women from entering the tomb at Haji Ali Dargah
in Mumbai,10 and the decision against denial of entry to women in religious institutions on any
criteria other than on the basis of religion.11 However, there are still some places where such a
decision remains ineffective, and a much closer view of the situation is needed in order to remedy
the ineffable discrimination against women.

The most prominent issue that hurled the nation into chaos with feminists on one side and the
religious proponents on the other side was the debate over the entry of women into the Sabarimala
Ayappa Temple, Kerela.12 In the Sabarimala Temple, any women between the age of 10 and 50
years were barred from entry.13 Last year, this religious practice was challenged before the apex
court. Indeed, the Court lifted this ages old ban, but this paved way for huge protest from the
patriarchal society.

However, this is not the only instance which highlights the prevalent gender inequality in the
country.14 There are several other religious places where under the garb of upholding religious
traditions, the women are denied entry into the religious abodes.15 Lord Kartikeya Temple, in
Puhskar is another such example where the women in their menstruation stage are denied entry
into the temple.16 Such is the lamentable social situation in India that even the heinous are deemed
to be accepted by the gods, but a bleeding woman has no right to do the same. It is not only the
temples that are following this draconic customs, but all sorts of religious abodes have been

10
Women enter Mumbai's Haji Ali Dargah mosque after ban lifted, available at
https://www.theguardian.com/world/2016/nov/29/women-enter-mumbais-haji-ali-dargah-mosque-after-ban-lifted
11
Gautam Bhatia, The Equality of Entry, available at https://www.thehindu.com/opinion/lead/The-equality-of-
entry/article14626846.ece
12
Ashok Kini, Women Entry In Sabarimala: Past, Present And Future, available at https://www.livelaw.in/women-
entry-in-sabarimala-past-present-and-future/
13
Murali Krishna, Swamini Saranam: Supreme Court allows entry of women into Sabarimala temple, available at
https://barandbench.com/sabarimala-women-entry-supreme-court/
14
Women are not allowed in these places of worship too, available at https://www.livelaw.in/women-entry-in-
sabarimala-past-present-and-future/
15
Id.
16
Sabarimala open to all: Temples where women aren’t allowed to enter, available at
https://www.hindustantimes.com/india-news/sabarimala-open-to-all-temples-where-women-aren-t-allowed-to-
enter/story-FU9eO97O8fH7y6Alr7QSkN.html
following this trend such as Nizamuddin Dargah in Delhi where the women are allowed to offer
their prayers at the shrine, but only from a distance.17 They may enter the premises, but are not
allowed anywhere near the main sanctum. The Hazratbal Mosque in Srinagar is another such
example of the discrimination against women since the Mosque doesn’t allow women to enter into
the main building, and the women are confined into a hall outside the main building where they
may remain and offer their prayers.18

The Triambakeshwar Temple in Nashik is another example of how, in pursuance of the religious
values and traditions, the women are denied entry into the temple.19 Despite their being reports
where it is hinted that the temple has not per se denied entry to women in any form, there have
been many people that have opined contrary and voicing their displeasure in breaking an age-old
tradition by allowing the women to enter the temple. Such discrimination and inequality is majorly
noticed in the South Indian states of the nation where another such instance is marked by the
Padmanabhaswamy Temple in Thiruvananthapuram. The deities in the temple are allowed to be
worshipped by the women, but the female devotees are nonetheless denied entering the temple
premises.20

ARTICLE 25 & ARTICLE 26

In India, there are plenty of religious places where the entry of women has been completely
restricted. In the recent times, these instances have taken up a considerable impetus and have been
brought to the forefront of the issues. The basis for this limelight lies in the fact that these instances
are also the cases where the fundamental rights of the women are being infringed. 21 The right to
freely profess and practice the religion of their choice is the fundamental right of all the citizens
of India, and the same has been enumerated in Article 25(1) of the Constitution of India.22
However, the religious denominations are also granted the right to manage their own affairs when
the matter revolves around the religious practices adopted by them under Article 26(b) of the

17
Supra note 70.
18
Id.
19
Id.
20
Id.
21
Women have fundamental right to enter Sabrimala temple, says Apex court, available at
https://www.thehindubusinessline.com/news/women-have-fundamental-right-to-enter-sabrimala-temple-says-apex-
court/article24454843.ece
22
Article 25 of Indian Constitution.
Constitution.23 There does exists another right for the Government of India to intervene in these
issues relating to the conduct of the religious denominations when the matter revolves around the
social welfare or any reform. This right, provided under the Article 25(2) of the Constitution also
provides for such intervention in the case when the intervention is targeted at opening of all the
Hindu religious institutions that are of a public character so that they may be accessed by all classes
of the Hindu religions.24 Regardless, these rights are not the entire solution that is sought for the
problem at hand.

The nation has witnessed a large number of protests being launched against this gender inequality
which is claimed to be in the furtherance of the upholding religious traditions and practices. Haji
Ali Dargah in Mumbai faced one such protest where a group of women launched a series of
protests against the ban on the entry of women in the main sanctum of Dargah. The women claimed
that the ban which was imposed upon the entry of the women into the sanctum was not an age-old
ban, rather, was a recent practice which had been based by the authorities on unreasonable grounds.
Contrary to the practice in the Haji Ali Dargah, there are several other Dargahs in the city which
allowed the women to enter the inner sanctum. The alleged discrimination was argued by the
trustees against whom the claims were levelled to be false since they claimed that rather a ban
being imposed, the women had been provided with alternative entries into the area so as to ensure
the safety of the women. The trustees claimed that the restriction for women on entry into the inner
sanctum was against the tenets of the Muslim religion since the males would be distracted by the
presence of the women, and that the women would also be endangered since the stance taken
during prayers would entice the males present there, being sexually aroused by the sight. However,
the Bharatiya Muslim Mahila Andolan, who were petitioners in this case had argued that such a
reasoning was unjust, and that the restriction had been imposed in an arbitrary manner. The
Bombay High Court, nevertheless, permitted women to enter at the inner sanctum of Haji Ali
Dargah by upholding their constitutional rights.

Indeed, it is true that the right, as it has been laid down in the Article 25(1) of the Constitution, has
been held to be enforceable against the ‘state’, but not against the individuals or any other corporate

23
Article 26 of Indian Constitution.
24
MUHAMMED NASEEM & SALMAN NASEEM, RELIGION AND LAW IN INDIA (2016).
bodies. However, in the recent Sabrimala Temple Case,25 the Supreme Court held that even though
the right cannot be enforced against the private individuals and corporate private bodies, it does
not mean that the government cannot act to restrict a private party if the concerned private party is
acting in a manner which is causing the other private party to be obstructed in exercising his/her
rights that have been guaranteed by the Constitution.26 It is the duty of the State to act so as to
remove the obstruction in such exercise of the fundamental right of the victim private party. The
Sabrimala Temple case has come amidst a whirlpool of debate over the ban on the entry of the
women into the temple, and there have been a large number of protests against this ban by the
women all over the nation.27 This ban was then contested by the lawyers in the Supreme Court and
this further opened the way for such protests in regards to the other likewise instances as well.

Over the times, since our nation is a secular state, and has given the different religions to manage
their own affairs in relation to their religion, the state has never interfered in the matters which
pertained to the intricate practices of these religions. However, now that the Courts has finally put
its foot down to stop this unequal treatment of the people on the basis of the gender, the decisions
or the outcome of several recent cases will then be used as a means in the future to further the
constitutional cause of equal treatment and no discrimination on the basis of gender. The crux of
this issue at hand is one which demands extreme caution and care since it will help uphold the
socialistic and democratic characteristic of India.

ARTICLE 25 & 26 OF INDIAN CONSTITUTION IS NOT AN ABSOLUTE RIGHT

It has been a tradition in the Indian society that whenever the Court has attempted to intervene in
the religious dealings in the country, there has been a massive outcry in the society against such
steps being taken. The response does not necessarily be negative, but is rather an assortment of all
sorts of the responses. When the Article 25 is given a careful and a thorough reading, it is rather
evident that the language of the Articles does not mandatorily restrict the state to legislate in a
manner which affects any religious practice as such. The jurisdiction that has been granted by the

25
26
Rajeev Dhavan, When the judiciary rewrites a faith, available at https://www.thehindu.com/opinion/op-ed/when-
the-judiciary-rewrites-a-faith/article25221633.ece
27
Radhika Sanghani, Indian Women Protest Temple that wants to Scan them for Impure Periods, TELEGRAPH
(2015).
Article 25(2) to the State is limited, but not negligible.28 This jurisdiction to the State to legislate
in relation to the religious practices has been made to be confined within the economic, financial,
and political aspects of the concerned religious practices.29 In other words, the state is empowered
to regulate the religious affairs, indeed, but it has been restricted to do so only in the indirect
manner.30

This limited jurisdiction has an additional criterion to it, and in pursuance of that criterion, the
State is also empowered to intervene the internal affairs of the religious interventions, when it is
being done by the state to promote social welfare, or to bring about a prominent social reform by
way of its conduct. The State does so majorly in order to curb the social practices that tend to foster
inequality and discrimination, but tend to originate from the religious dealings taking place
unmonitored.

Indeed, by virtue of the rights conferred under the Part III of the Constitution, every religious
endowment or the denomination is empowered with the right to manage their own affairs as long
as they are of the religious nature.31 In the management of the affairs of this nature, the state has
no right to interfere with the workings of the religious denomination, until and unless such a
conduct is running against the public order or morale and health of the citizens. In only these
circumstances, the State has the right to interfere with the functioning of the religious
denominations. In any other circumstances, the matters are referred to as the ‘matters of religion’,
and the state is not allowed to interfere with these matters.32

This phrase, ‘matters of religion’ tends to include the religious practices, the rites involved in the
following of the religion and the other religious ceremonies, all of which are considered to be
essential for the religion being practiced. In regards to these practices, the religious denominations
are allowed with the liberty and freedom to manage their affairs, as long as they are confined to
these religious matters. However, this right is limited and kept in check by the clause 2(b) of the
Article 25 of the Constitution.33 Resultantly, this right of the religious denominations is kept in

28
Rajeev Dhavan, Religious Freedom in India, 35 AJCL, 209-254 (1987).
29
Gilles Tarabout, Rulings on Rituals: Courts of Law and Religious Practices in Contemporary Hinduism, 17 SOUTH
ASIA MULTIDISCIPLINARY ACADEMIC JOURNAL, 1-20 (2018).
30
31
32
33
check by the possible laws being passed by the State in order to ensure efficient regulation of the
affairs.34 The first act that had been passed in pursuance with this right for the state was the Madras
Religious & Charitable Endowments Act, 1925, which had been later renamed as the Madras
Hindu Religious Endowments Act, 1925.35 The Article 25 does allow for the religious institutions
with the freedom to manage their affairs, but the same needs to conform to the fact that the issue
is purely of the religious nature, and does not hamper the public order or morale.36 If it indeed is
found that the given issue is detrimental in nature to the public order, or is fostering any form of
discrimination, the State is empowered to pass any law which is intended to promote the necessary
social reform, or regulate the affairs of the religious institution in question.37

FUNDAMENTAL RIGHTS AND RIGHT TO FREEDOM OF RELIGION

Article 14

Within the Article 14, the underlying principle is to secure the right of equality to all persons, and
not only the citizens, wherein the equal status to every individual is ensured. The Article is also
intended to provide the persons with equal sets of opportunities, both of which have been laid
down in the Preamble of the Constitution of India. By way of the Article 14, the discrimination
taking place within India remains outlawed, wherein the Article guarantees the equality before law
to all persons that come within the scope of the Article 14.

Although the right conferred under the Article 14 runs parallel with the rights that have been
conferred under the other provisions of the Part III, the right under Article 14 for the equal status
before law, and of equal protection of law to all persons, is one of the most important rights
contained within the Constitution, and has gained considerable impetus in the recent times. The
concept embodied within the Article 14 inherits the traits of the principle of ‘non-discrimination’.
Article 14 clarifies Right to Equality, and it was also a cardinal principle on which our constitution
stands.38 Thus it forms a part of the basic structure as has been expressly laid down in some
landmark cases by the Indian Judiciary.39 The Ban on entry of women at place of worship is

34
35
36
37
38
39
considered as discriminatory in nature.40 The basis of such a practice of preventing women of
mensuration infringes the Article 14 of Indian Constitution. Such practice of exclusion is based on
physiological factors which are only found in women.41 This classification cannot be considered
as a reasonable one where a constitutional objective has been sought to be achieved.42 The
Constitution gives the right to practice, profess and have conscience of any religion. Similarly the
same right has been ensured for religious denominations to manage their own affairs.43 But these
rights are not absolute in nature and the religious denominations cannot be given a complete right
to infringe other provisions of the constitution as well as cardinal principles on which our
constitution stands atop.44 The practice of preventing women from entering into a religious
institution cannot be considered as a reasonable classification. Such a discrimination on base of
gender is violating Article 14 of the Constitution.45

For any law to be discriminatory in nature, there must be an existence of an intelligible differentia
and at the same time, it also must bear a rational nexus with the constitutional objective sought to
be achieved by way of the act in consideration.46 The object claimed in such instance is to prevent
their right to religion and right as a denomination to manage their own affairs. But the main
question arises is whether a provision of law can be allowed to defeat the basic structure of the
constitution. Similarly, there must be another question that needs deliberation, as to whether a right
can be allowed to be exercised in conflict with some of the cardinal principles of our constitution?

Such a practice runs in contradiction with not only equality but also to the constitutional object of
justice, liberty, equality and fraternity as embodied under the Preamble of Constitution of India.47

40
ZOYA HASSAN, AZIZ Z. HUQ & MARTHA C. NUSSBAUM, THE EMPIRE OF DISGUST: PREJUDICE, DISCRIMINATION,
AND POLICY IN INDIA AND US (2018).
41
42
43
44
45
46
47
Apart from this if at one instance we agree the intelligible differentia based on mensuration but
still the object cannot be considered as constitutionally valid because protection of this one right
is infringing many other rights of people as enshrined under Constitution of India.48

Such exclusionary practices are arbitrary in nature as it was only based on physiological factor
which is takes place only the bodies of the women.49 This practice of preventing women from
entering into religious institution cannot be protected on the basis of right to religion.50
Constitution, in its provisions, safeguards the right to profess, practice and have conscience of any
religion.51 But such practice cannot be considered as a practice which must be allowed or is
essential to follow such religion.52

No religious practice is essential to be followed which is based on gender inequality as Indian

constitution allows to profess53 and practice54 any religion,55 but not in absolute sense. As only
such practices are allowed which are essential to a religion,56 and preventing a women from
worshipping god cannot be considered as essential practice of that religion.57

Article 15

The Article 15 is another Article in the Constitution of India wherein the fundamental rights of
individuals to be protected against the discrimination has been contained. The provisions of the
Article 15 are designed such that the individual is guaranteed protection from the forms of
discrimination that are rampant within the society. The provisions contain language that make it
an obligation upon the state to ensure that the rampant forms of discriminations are put a stop on,
and also forbid the State to conduct any activity or process which result in the individual being
discriminated against, on the grounds of sex, race, religion, caste or any other ground that has been
contained in the Article.58 However, it is notable that the Article contains provisions which are

48
49
50
51
52
53
54
55
56
57
58
enabling in nature. The Article 15 has been periodically amended, and its scope in context to the
powers conferred upon the State to uphold the right under this article has been constantly
expanded.59 The scope of the Article has been widened to allow the State to take appropriate
measures which are intended for the furtherance of the weak and backward classes, and women
and Children as well.60 Article 15(2) provides against the discrimination on the basis of the grounds
that have been mentioned in the Article 15(1), such that no one can be discriminated against when
making use of shops, public amenities, other places of entertainment, etc.

Although the rights under the Article 15 have allowed for the State to make necessary provisions
where the State deems fit for the purpose of enhancing the conditions of the weaker sections of the
society, where the same is also provided in the Article 16, however, it is also to be noted, that such
rights are merely enabling provisions. Indeed, they can be used as ground for the State to enable
such a provision which strengthens the state of a weaker section of the society, but the same cannot
be used as a basis for claiming such special provisions as a matter of right.

Article 15 is a special provision for women empowerment and protection of women’s status in the
society.61 Such practices are not essential one and these practices are violating Article 15 as the
classification is only based on sex.62 Any practices of gender biasness present in any form or at
any place is against constitutional norms.63 As a patriarchal society such practices are prevalent in
India and many such practices are consider to be gender bias.64 Since time immemorial Indian
society had seen many instances of gender discrimination.65 Many such practices are abolished in
India, but still many things need to be changed.66 Discrimination on the basis of gender cannot be
allowed in a society as it will defeat the basic structure of our constitution. Similarly these instances
are associated with claims of other rights like Right to Religion67 and Right of Denominations.68

59
60
61
62
63
Anuj Garg and others v. Hotel Association of India and others (2008) 3 SCC 1; Charu Khurana and others v. Union
of India and others (2015) 1 SCC 192.
64
65
66
67
68
But by providing protection to such right we cannot allow such practices to violate the other
provisions, especially Part III of the Indian Constitution.69 This will make such provisions a dead
letter and the constitutional objectives cannot be achieved.70 Allowing such discriminatory
practices would lead to infringing the basic structure of our Constitution. These social evils cannot
be allowed to be present in our developing society just on the basis of protection of other
constitutional rights.

Article 21

The Article 21 of the Constitution of India lays down in its language that no person can be deprived
of their life, and also of their personal liberty. However, the provision also states that the same can
be done, but only by means of the procedure established by law. The Article embodies one of the
most basic rights, one which is fundamental for the survival of an individual. The right contained
in the Article 21 has been so far subjected to a great deal of debate, since the ambit of the language
of these words is significantly vast. The language contained has thus created a certain level of
ambiguity in a plethora of matters. The right contained in this Article runs parallel to the right that
had been contained in the V Amendment of the U.S. Constitution. The only difference that existed
erstwhile in the interpretation of these two parallel rights remained in the interpretation of the
phrase ‘due process of law’,71 which has been interpreted over the times, such that the meaning
itself has evolved. The scope of the Article 21 has been evolved to such a length that none of the
aspects have remained untouched by it.72

Article 21 can be considered as heart of our constitutional and any other provision in conflict of
such would definitely be struck down as unconstitutional.73 In such instances of restricting women
from entering into place of worship, right to life and personal liberty is infringed. Such social evils
undermines dignity of a women, not only in society but also in their family. 74 Protection of
women’s dignity is also an important constitutional norm.75 The patriarchal society we have in our

69
70
71
72
73
74
75
past is needed to be reform and for reformation of our society we have to abolish such
discriminatory practices.