Women Equally Entitled to the Constitutional Promise of Religious Freedom in India
- Not an Absolute Right
- Scope of this Paper
- Recent Landmark Supreme Court Judgments
Article 25 of the Indian Constitution[i] stipulates that all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion subject to some restrictions. This constitutional guarantee is gender-neutral and thus it should be quite simple to one and all that every woman in India is equally entitled to the right to religious freedom. However, ensuring that this right is equally accessible to women in India has been far from simple.
To understand the difficulty, we must recognise that freedom of religion or belief is exercised individually, and also, more often than not, in community. Making sure that a community of believers has the freedom of religion, in turn, enriches the religious experience all of them have. This includes an individual woman. Religious denominations (and sections thereof) are therefore guaranteed the freedom to manage their own affairs in matters of religion under Article 26 of the Indian Constitution.[ii] However, problems arise when an individual’s notion of religious practice differs from that of the community. Moreover, the individual woman’s religious freedom often suffers because, in many religious communities in India, all decision-making authority is vested primarily with men.
Not an Absolute Right
It is clear why religious freedom cannot be an absolute right. It is a delicate balance between the rights of individuals, rights of religious communities and the interests of the State. The right to freedom of religion under Article 25 is subject to public order, morality and health. It is also subject to the other provisions of Part III of the Indian Constitution which together comprise the fundamental rights of all citizens. Similarly, the same right is guaranteed to religious denominations under Article 26 and it is also subject to public order, health and morality.
Though the Article doesn’t explicitly state that this right is subject to other fundamental rights, landmark judgments[iii] of the Supreme Court have established that the scheme of rights under Part III of the Constitution of India calls for a harmonious construction of the various fundamental rights. No single right can be exercised in isolation to the detriment of the others. Therefore, all actions by State and non-State actors that violate the inherent dignity of an individual are unconstitutional and therefore impermissible. No individual can be denied the foundational values of Justice, Equality, Liberty and Fraternity, as encapsulated in the preamble to the Constitution.
Scope of this Paper
In recent landmark judgments, the Supreme Court has laid down the law governing the intersectionality of the right to freedom of religion for all and the fundamental rights and dignity of women. The court has strived to locate the limits of each right so as to strike a fair balance. The existing legal framework governing this field, based on these recent rulings, form the basis and scope of this paper. A critical analysis of the rationale and doctrines relied upon by the Supreme Court in these judgments may be the subject of a future inquiry.
Factors Contributing to Heightened Friction at the Intersectionality of Rights
In this section, we look at four factors that have led to an increase in friction at the intersection of the right to freedom of religion and the fundamental rights of women.
- Transformation of Collective Identity to Individual Identity[iv]:In recent decades, the Indian society has witnessed a drastic change in relations between individuals and society. The principles of change that transformed the European society a couple of centuries ago can now be seen approaching the Indian society. This process has resulted in the metamorphosis of collective identity into individual identity. This is reflected in women increasingly asserting their individuality and being emboldened to speak up when their rights and dignity are violated.
- Constitutional Vision: When independent India gave herself a Constitution, it made social reform a priority. The people of India had been subjected to indignity for centuries and were now preparing for their “tryst with destiny”[v] where the human dignity of every individual would be upheld. Exclusion and discrimination of persons on the basis of gender, caste, religion and race would have no place in this constitutional vision. And the past 70 years have seen India take great strides in that direction, including transformational legislations and adjudications. This has helped women break free from the clutches of gender
- Questioning Oppressive Religious Practices: Not all religious practices are protected under the meaning of “religion” in Article 25 and 26 of the Constitution. In the 1954 “Shirur Mutt” ruling[vi], the Supreme Court of Indian synthesised an “essential religious practices” test. According to that, only those religious practices which are essential or integral to a religion would qualify for constitutional protection. Now, a woman who is aware of the constitutional promise to uphold her human dignity and fundamental rights cannot be expected to bow to religious practices within her faith which she perceives as oppressive and discriminatory. But the leaders of the religious community may consider some of these questionable practices as “essential.” This puts them at loggerheads and calls for the intervention of the courts to apply the “essentiality test.”
- The Role of Civil Society: The Supreme Court of India recognised the validity of Public Interest Litigations (PIL) in the S.P. Gupta case.[vii] Justice P.N. Bhagwati, laid down in his judgment that any member of the public or a social action group acting bona fide can move the courts on behalf of persons whose fundamental rights have been violated but are not able to approach the court themselves due to some disability. And to that effect, members of civil society have filed several PILs over time on behalf of women whose right to freedom of religion has been violated by their own religious communities. Such members of civil society have been derided at times as “Publicity Interest Litigants” and accused of intentionally meddling in religious affairs for extraneous reasons. Nevertheless, there still are many who tirelessly work to seek justice.
Recent Landmark Supreme Court Judgments
Now let’s look at three recent landmark judgments of the Supreme Court of India which have upheld the religious freedom and dignity of women.
Kerala ‘Love Jihad’ Case[viii]
Hadiya, a young woman from the south Indian state of Kerala, underwent untold hardships in full view of the nation in a case which was followed by people from across the world.[ix] She was born in a Hindu family and called Akhila Asokan by her parents. As an adult, she chose to embrace Islam and married a Muslim man, Shafin Jahan.
Religious conversions and interfaith marriages do have a history of backlash in India. But Hadiya could never have imagined the extent of resistance that she would have to face. Her father had fallen prey to a conspiracy theory that his daughter had been brainwashed and indoctrinated into Islam. He believed that she had been trapped in a sinister scheme that would end with her smuggled out of the country to be used as a human bomb by certain terrorist organisations. As a result, her husband became the subject of intense scrutiny having been accused of having links to jihadi terror groups. Hadiya complained that she was held captive and harassed by her parents in their home. She was not allowed to go outside, pursue her studies or even meet with her husband.
Hadiya and her father approached the High Court of Kerala which then exercised the extraordinary jurisdiction of Parens Patriae and assumed legal guardianship over her. The court proceeded under the assumption that though Hadiya was an adult, she had become incapable of making an informed decision. The High Court then proceeded to annul the marriage between Hadiya and Shafin which had been performed following Islamic traditions.
When the matter finally came before the Supreme Court, the apex court came down heavily upon the ruling of the High Court. Firstly, it criticised the actions of the father as “a manifestation of the idea of patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel.”
The Supreme Court also overturned the high court’s decision to annul the marriage and struck down the exercise of Parens Patriae (which grants the inherent power and authority of the state to protect persons who are legally unable to act on their own behalf) over Hadiya as overreach.
In protecting Hadiya’s individual autonomy in matters of faith, the Supreme Court held:
“The faith of a person is intrinsic to her meaningful existence. To have the freedom of faith is essential to her autonomy, and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realisation of a right is more important than the conferment of the right. Such actualisation indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it an indispensable preliminary condition.”
The judgment also demonstrated the interplay of Hadiya’s religious liberty, autonomy and privacy:
“Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution. In deciding whether Shafin Jahan is a fit person for Hadiya to marry, the [Kerala] High Court has entered into prohibited terrain. Our choices are respected because they are ours.
“Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere.”
Hadiya was finally able to freely live out her faith in union with her husband of the same faith. The National Investigation Agency (NIA) eventually ended the probe into the genuineness of their marriage, concluding that they found “only love, but no jihad.”[x]
Triple Talaq Case[xi]
Shayara Bano was instantaneously, unilaterally and irrevocably divorced by her husband of 15 years in 2016 through Talaq-e-bidat. At the time, this practice was permissible among a large section of Indian Muslims and gave them the right to divorce their wife without her consent by just uttering the word ‘talaq’ three times in one sitting. The constitutionality of this practise was challenged by Shayara Bano before the Supreme Court. A five-judge bench of the highest court, by virtue of a 3:2 majority, set aside the practice as unconstitutional.
Justice Kurian Joseph, who was in the majority, held that the religious practice of ‘triple talaq’ fails the test of essentiality. He relied on a 2002 decision of the Supreme Court[xii] which held that any practice that does not conform to Quranic teachings cannot be considered as an essential tenet of Islam. According to the Quran, talaq is permissible only if there is reasonable cause and should be preceded by attempts at reconciliation by both families, with two arbiters, one from each family. A divorce can be effected only when these attempts have failed. Even though divorce is permitted, it is considered sinful and therefore undesirable. The court, therefore, found the practice of triple talaq bad in theology and also bad in law. The majority also held that customs and usages do not become an essential tenet of any religion simply because they are permissible and have been followed for centuries.
Justice Rohinton Nariman and Justice U.U. Lalit, who were also in the majority, found the Muslim Personal Law (Shariat) Application Act, 1937 void under Article 13(1) to the extent that it had permitted the practice of triple talaq among Muslims, finding the relevant provision to be a violation of Article 14 of the Constitution.
Personal laws, in this case, the Muslim Personal Law, can be saved under Article 25 of the Constitution, only to the extent that it is not found in violation of public order, health, morality and other provisions of Part III. Whereas Nariman and Lalit, JJ found the legal provision supporting triple talaq to be arbitrary in failing to secure the equal protection of the law to the Muslim woman, a constitutionally guaranteed positive right to equality under Article 14.
Sabarimala Temple Entry Case[xiii]
The Sabarimala temple, a famous hill shrine of Hindus that attracts millions of pilgrims every year, prohibited the entry of menstruating women between the ages of 10 and 50 by virtue of a custom protected by Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965. The Constitutionality of this custom and rule was challenged in the Supreme Court of India. A five-judge bench of the court struck down the prohibition by a majority of 4:1.
The majority of judges found the Sabarimala temple to fall within the meaning of “Hindu religious institutions of a public character”. They also determined that the devotees of the deity, Ayyappa, do not constitute a separate religious denomination under Article 26, but are rather included within the meaning of “all classes and sections of Hindus.” This is pertinent because Article 25(2) of the Constitution states that, “Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law … providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.”
The custom of prohibiting a section of Hindu women from entering a Hindu place of worship of public character is no doubt antithetical to the constitutional vision of social reform encapsulated here and in other constitutional provisions under Part III.
The custom was also called out as being discriminatory to women on the basis of gender and therefore violative of Article 15 of the Constitution. A majority of judges found the religious custom to be exclusionary. Justice D.Y. Chandrachud assailed the custom as a form of untouchability, a practice forbidden under Article 17. He also found the notions of pollution and purity on the basis of a woman’s physiology to be violative of the privacy and autonomy of a woman (Article 21) and an expression of archaic patriarchal devices to shackle the advancement of women.
The majority did not find the prohibitory custom to not be an “essential religious practice.”
Justice Indu Malhotra, who delivered the dissenting judgment in this case, returned a finding that the challenge to the temple’s custom by an association consisting of non-devotees was not maintainable and without locus standi. However, the majority of judges allowed the PIL. Justice Malhotra’s views on non-interference in matters of religion by persons outside the fold of a religious tradition are pertinent and warrant further enquiry.
The Saga Continues
In a stunning turn of events, in response, a petition seeking a review of the Sabarimala temple entry case verdict, a five-judge bench of the Supreme Court[xiv] , by a majority of 3:2, referred the matter for adjudication before a larger bench. However, they did not put a stay on the operation of the earlier 4:1 judgment in the case.
This led to a chain of events that resulted in a nine-judge bench of the Supreme Court to take another look into issues concerning the case. In fact, issues arising from three more cases which are also about the intersectionality of rights have been clubbed to be heard by the same nine-judge bench. These three cases include challenges to
- the prohibition of Parsi women who have married non-Parsi men from entering the Fire temple;[xv]
- the practice of Female Genital Mutilation (FGM)[xvi] or Khatna that continues among Dawoodi Muslims; and
- the case concerning the entry of Muslim women into mosques.[xvii]
The nine judges have undertaken[xviii] an unenviable task of answering the following seven questions of law.
- What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
- What is the interplay between the rights of individuals under Article 25 and those of religious denominations under Article 26?
- Whether the rights of a religious denomination under Article 26 are subject to other provisions of Part III of the Constitution apart from public order, morality and health
- What is the scope and extent of the word 'morality' under Articles 25 and 26 and whether it is meant to include constitutional morality?
- What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25?
- What is the meaning of the expression “sections of Hindus” in Article 25 (2) (b)?
- Whether a person not belonging to a religious denomination of a religious group can question one of their practices by filing a PIL?
The Supreme Court has certainly delivered some very progressive judgments upholding the freedom of religion, dignity and fundamental rights of women. However, we are yet to hear the last word on these matters. The answer to the aforementioned seven questions will guide the decisions in not just these four cases that have been clubbed together but many more in the years to come.
D'Souza, Victor S. "Individuation in Indian Society: From Collective Identity to Individual Identity." Sociological Bulletin 55, no. 2 (2006): 281-99. Accessed October 13, 2020. http://www.jstor.org/stable/23620556.
Goolrokh M. Gupta v. Mr. Burjor Pardiwala (Dead), (2017). SLP (C) 18889 of 2012 (India) https://indiankanoon.org/doc/144461915/
Hindustan Times. “NIA Ends Kerala Probe, Says There’s Love but No Jihad - India News - Hindustan Times,” October 18, 2018. https://www.hindustantimes.com/india-news/nia-ends-kerala-probe-says-there-s-love-but-no-jihad/story-wlpWR7BMNcdJHkb1MUso4J.html.
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Indian Young Lawyers Association v. The State of Kerala, (2018). WP (C) 373 of 2006 (India) https://indiankanoon.org/doc/163639357/
Justice K. S. Puttaswamy (Retd.) and Another v. Union of India And Others, (2017). WP(C) 494 of 2012 (India)
Kantaru Rajeevaru v. Indian Young Lawyers Association & Others, (2019). RP (C) 3359 of 2018 in WP (C) 373 of 2006 (India)
Kantaru Rajeevaru v. Indian Young Lawyers Association, (2020). RP (Cl) 3358 of 2018 in WP (C) 373 of 2006 (India)
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News. “India Supreme Court Restores ‘love Jihad’ Marriage - BBC News.” BBC News. BBC News, March 8, 2018. https://www.bbc.com/news/world-asia-india-43327380.
Rustom Cavasjee Cooper v. Union of India, (1970). 1970 AIR 564 (India) https://indiankanoon.org/doc/513801/
S.P. Gupta v. President of India And Others, (1981). AIR 1982 SC 149 (India) https://indiankanoon.org/doc/1294854/
Shafin Jahan vs Asokan K.M., (2018). Appeal (crl.) 366 of 2018 (India) https://indiankanoon.org/doc/18303067/
Shamim Ara v. State of U.P. & Another, (2002). Appeal (crl.) 465 of 1996 (India) https://indiankanoon.org/doc/332673/
Shayaro Bano v. Union of India and Others, (2017). WP (C) 118 of 2016 (India) https://indiankanoon.org/doc/115701246/
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The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (1954). 1954 AIR 282 (India) https://indiankanoon.org/doc/1430396/
Yasmeen Zuber Ahmad Peerzade & Another v. Union of India. WP (C) 472 of 2019 (India) https://www.scobserver.in/court-case/muslim-women-s-right-to-pray-in-mosques
[i] Indian Const. art. 25. https://indiankanoon.org/doc/631708/
[ii] Indian Const. art. 26. https://indiankanoon.org/doc/1858991/
[iii] R.C. Cooper v. UoI | 1970 AIR 564 | https://indiankanoon.org/doc/513801/
Maneka Gandhi vs UoI | 1978 AIR 597 | https://indiankanoon.org/doc/1766147/
[iv] Victor S. D'Souza, "Individuation in Indian Society: From Collective Identity to Individual Identity." Sociological Bulletin 55, no. 2 (2006): 290-98.
[v] “Tryst with Destiny speech made by Pt Jawaharlal Nehru,” Indian National Congress, last modified August 13, 2016, https://www.inc.in/en/in-focus/tryst-with-destiny-speech-made-by-pt-jawaharlal-nehru
[vi] 1954 AIR 282 | https://indiankanoon.org/doc/1430396/
[vii] AIR 1982 SC 149 | https://indiankanoon.org/doc/1294854/
[viii] Shafin Jahan v. Asokan K.M. | Appeal (crl.) No. 366/2018 | https://indiankanoon.org/doc/18303067/
[ix] “India Supreme Court restores 'love jihad' marriage,” BBC, last modified March 8, 2018, https://www.bbc.com/news/world-asia-india-43327380
[x] “NIA ends Kerala probe, says there’s love but no jihad,” Hindustan Times, last modified October 18, 2018, https://www.hindustantimes.com/india-news/nia-ends-kerala-probe-says-there-s-love-but-no-jihad/story-wlpWR7BMNcdJHkb1MUso4J.html
[xi] Shayaro Bano v. UoI | WP (C) 118/2016 | https://indiankanoon.org/doc/115701246/
[xii] Shamim Ara vs State of U.P. & Anr. | Appeal (crl.) 465 of 1996 | https://indiankanoon.org/doc/332673/
[xiii] IYL Association v. State of Kerala | WP (C) 373/2006 | https://indiankanoon.org/doc/163639357/
[xiv] Kantaru Rajeevaru v. IYL Association | R.P.(C) No. 3359/2018 in WP (C) No. 373/2006 | https://indiankanoon.org/doc/120364030/
[xv] Goolrokh M. Gupta vs Mr. Burjor Pardiwala (dead) | SLP(C) 18889/2012 | https://indiankanoon.org/doc/144461915/
[xvi] Sunita Tiwari vs UoI | WP(C) No.286/17 | https://indiankanoon.org/doc/181206322/
[xvii] Yasmeen Zuber vs UoI | Writ Petition (Civil) 472/2019 | https://www.scobserver.in/court-case/muslim women-s-right-to-pray-in-mosques
[xviii] Kantaru Rajeevaru v. IYL Association | R.P.(C) No. 3358/2018 in W.P.(C) No. 373/2006 | https://indiankanoon.org/doc/125326128/