Author: Shreya Biswas
Women have always played an important part in the making and developing of our society. They are the ones who created the social construct and are a big part of it. Generations are formed by them. Women are the lifeblood of any community. They are expected to take care of things with all of their hearts as they expand their dimensions to support the cooperative realm of society, whether at home, at work, or on holidays.
A country will stand up and advance when its women grow and realise their hidden capabilities. This is only feasible if she has complete freedom and independence in all areas of her life. It doesn’t matter if it’s in the economic, political, social, legal, or religious spheres. Our constitution guarantees women with liberties and equality; but the society restricts and limits women’s access to many of their rights. Such restrictions must be re-examined in order to allow women to get what they deserve. Thus, society here should play a role as a whole.
Women’s rights in India have been a source of concern for decades. Previously, they were left destitute, and even now, when these situations have improved, women continue to suffer greatly and confront discrimination on a daily basis. Aside from the fact that they are now working and receiving paid, their social status is jeopardised and viewed as low.
The majority of the time, the issue arises on the basis of liberty and equality, when they are not permitted to perform activities that necessitate freedom and are particularly, according to society, reserved for males. Indian women have been stopped from going further and bringing out their personalities in a more powerful way due to ill-intentioned and faulty societal views.
On the one hand, we worshipped mother goddess and personified women as her image but on the other hand, we imposed a number of restrictions on her admission into temples and sacred sites. We all believe in the famous Manusmriti saying, “Yatra Naraystu Pujyante Ramante Tatra Devta” (Where women are worshipped, god would only stay there), but she is forbidden from entering the sanctum sanctorum since it is considered immoral.
When a woman moves out for employment, she is frequently questioned. If a woman pursues her aspirations, leaves the house for employment, or crosses social boundaries set by hypocrites, her character is assassinated. Why do women suffer so much?
To address such gender discrepancies, our government is working diligently to develop programmes and services for women that take into account all aspects of women’s life. Leaving aside this step, special protections for women are already mentioned in our Constitution with complete support.
Provisions under Indian Constitution
Indian constitution took into account women’s situation many years ago, yet our society has not changed. It has been extremely difficult to instil in our society that women are vital, as are their rights and liberties. We live in a society that is skewed toward women. Bias has only served to make women feel inferior.
Despite the fact that women have more reservations and rights than men, they are still barred from political and religious engagement due to assumptions that males are more deserving and that men should be prioritised when it comes to holding power and important positions in society.
It was difficult to adopt the secularism in India, since the society is essentially cosmopolitan and numerous sects and religions coexist. Furthermore, the conservative nature of Indian society and the communal conflicts that existed at the time the Constitution was drafted made it much more difficult to enter such an open and liberal society. As a result, Indian secularism (the term was added to the Constitution via the 42nd Amendment) evolved into a notion advocating “communal harmony and coexistence,” in which the state protects and supports all religions equally.
The Constitution has articles that safeguard a variety of religious and liberty rights. Such as:-
Freedom of Religion
Article 25 to 28 of the Constitution guarantees the Freedom of Religion to all the Indian citizens.
Article 25 – It gives free will to people to profess, propagate and practise religion.
Article 26 – It allows the religious sections to establish and manage their own institution in regard with the religion.
Article 27 – People are not forced to pay tax for the maintenance of any religious section.
Article 28 – No religious instructions should be given in any state funded or aided institutions.
These are constitutional provisions that are commonly thought to apply to men. Even when guaranteed by Indian constitutions, women in India do not have the same freedom to participate in, maintain, and oversee religious institutions.
Article 14 to 18 of the Constitution guarantees the Right to Equality to the people.
Article 14 – According to this article “The state shall not refuse to any individual within the territory of India equality before the law or equal protection of the laws”.
Article 15 – This article declares that “The state shall not discriminate against any citizen solely on the basis of religion, race, caste, sex, place of birth, or any of them”.
Article 16 – This article provide equal opportunity in case of public employment.
Article 17 – According to this article “Untouchability is abolished, and its practise in any form is prohibited”.
Except for military or intellectual differences, Article 18 prohibits the use of titles. It is unlawful to accept titles from other countries, such as knighthood.
Article 18 – This article prohibits the use of titles (except for military or intellectual distinctions). Title from foreign governments such as knighthood is forbidden.
Articles 15 and 16 of the Constitution allow the government to create specific provisions for women in education and work. Women are given several opportunities to promote equality and establish a clear profile in all areas. They remain, however, far behind men and are victims of patriarchal, male-dominated society.
Fundamental Duties (Article 51-A)
Every citizen of India has a fundamental duty under Article 51A (e) to abstain from practises that are insulting to women’s dignity.
The limitation on certain age groups of women entering was a violation of a number of fundamental rights, including Article 17 of the UN Convention on the Rights of the Child, which deals with untouchability.
Article 51A (h) declares that it is the responsibility of every Indian citizen to cultivate scientific temper, humanism, and the spirit of inquiry and change.
Aside from the issue of gender inequality, the concept of individual liberty is also at risk. Individual liberty is tainted by the monopolisation of religious privileges by a few under the pretext of religious institution administration. Such regressive behaviours in any sector would certainly stifle the natural development of human potential from a society standpoint.
Conflicts between religions over women
In all religious traditions, customs, and rituals, women are always treated as second-class citizens. Superstitions that were believed in the past are still believed today. The plight of Indian women has always been a source of controversy.
Various factors, including religious fundamentalism and irrational concerns arising from the minds of orthodox segments of society, have been mentioned for these restrictions. It forbids women from exercising their religious rights and excludes them from religious areas.
Sri Venkataramana Devaru v. State of Mysore
In this case, the petitioners contended that the Madras Temple Entry Authorisation Act, which permitted Harijans to enter the temple, violated Article 26 of the Constitution, and that the temple was a denominational one, built exclusively for the Gowda Saraswath Brahmins. The Supreme Court, on the other hand, held that Article 25 (2), which provides for social welfare and reform or the opening of Hindu religious institutions of a public character to all classes and sections of Hindus, includes not only temples dedicated to the general public but also those founded for the benefit of specific groups.
Shayaro Bano v. Union of India & Ors
In this case, the Supreme Court in its recent decision in Triple Talaq case failed to apply the current ‘standard for laws’ to declare that the practise of triple talaq falls under Article 13(3) (a), and hence must be repealed under Article 13(3) (a) (1). Although Justice Nariman and Justice U.U. Lalit used the test for laws in effect to acknowledge the practise of Triple Talaq as falling under Article 13(3) (a), they found it unconstitutional on the narrower grounds of being “manifestly arbitrary” in violation of Article 14. The Supreme Court eventually found in favour of individual justice for Begum over religious tradition since her and her children’s quality of life was being harmed. Despite the fact that the Court’s ruling emphasises the importance of individual rights over collective rights, some members of the public were unable to accept an imposed change in religious practise. The case’s aftermath plainly demonstrated religion’s power and the community’s resolve to support religious personal law over individual justice.
Supreme Court on Religious Practices
The Supreme Court’s five-judge constitution bench has decided to refer the Sabarimala temple issue, along with other ongoing matters involving women’s religious liberties, to a larger seven-judge bench.
Goolrukh Gupta vs Burjur Pardiwala
In this case, the Special Leave Petition emerged from a Gujarat High Court ruling in 2012. Goolrukh Contractor Gupta, the petitioner, went to the High Court in 2010 when a friend of hers, who was also a Parsi married to a Hindu, was denied entrance to the Tower of Silence during her mother’s death rites a few years prior.
Goolrukh Gupta’s lawyer stated in court that the question was “does marriage between a Hindu and a Parsi result in automatic change of religion?” As a result, concerns of gender justice were raised. A Constitution Bench ruled in December 2017 that “DNA does not evaporate” once a woman marries outside her faith, and that a woman does not “surrender her affection to her father” by marrying outside her religion.
Indian Young Lawyers Association & Ors. vs The State of Kerala & Ors.
In this case, by a majority of 4:1 on September 28, 2018, the Supreme Court removed the prohibition that banned women and girls between the ages of 10 and 50 (particularly menstrual women) from entering the famed Ayyappa shrine in Kerala. It ruled that the centuries-old Hindu religious practise was unconstitutional and illegal (Article 14 and 25). Women of menstrual age, according to temple custodians, are not permitted to offer sacrifices.
Women’s religious rights have seen incremental progress, but courts have yet to make a concerted attempt to declare discriminatory religious practises unlawful. It is critical that courts establish universal standards that make it clear that discriminatory and regressive religious practises are unconstitutional. It’s possible that the emphasis on Article 26(2) and possibly Article 25 is incorrect. Religious practises and usages will be recognised as laws in effect, ensuring that those that violate Fundamental Rights be overturned under Article 13(1) of the Constitution.
These issues should be viewed as an opportunity to apply the ‘test for laws’ in force uniformly: declare religious practises to be laws in force under Article 13(3)(a) and rid the country of customs that are discriminatory and disparaging toward women and violate their Fundamental Rights.
From the above discussed provision of Constitution, it is reasonable to conclude that women in India have been given adequate opportunities to match their male counterparts and achieve equality. Furthermore, it is a steadily encouraging indicator that their engagement in government and private jobs, in national socio-political activities, and their presence in the highest decision-making bodies are improving each day.
However, we are still a long way from realising the equality and fairness that our Constitution’s Preamble promises in the genuine sense and spirit. Even though women in India have enormous equality rules and legislation, they are hopelessly behind men in practically every metric, with those constitutional rights just existing on paper. The underlying issue is our society’s patriarchal and male-dominated structure, which views women as subordinate to men and employs various means to control them.
We must educate and sensitise male members of society about women’s difficulties, as well as endeavour to instil a sense of solidarity and equality among them, so that they would stop discriminating against the fairer sex. Apart from the government, many civic societies, NGOs, and a large number of individuals of the country are required to make this happen. And, first and foremost, efforts should begin at home, where we must empower, educate, and equalise female members of our families by providing them with equal access to education, health, nutrition, and decision-making possibilities. India’s progress can only be accelerated if women are given equal rights.