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The Right to Enter Places of Worship: When God is Neutral, is Gender Discrimination Justified?

Radhika Agarwal and Devika Agarwal, Research Associates at the Indian Institute of Technology, Madras, India

“God does not discriminate between men and women, so why should there be gender discrimination in the premises of the temple?”

The Supreme Court of India posed a pertinent question to the Travancore Devaswom Board, while hearing a recently-filed petition on the constitutional right of women to enter the Sabarimala Temple in the Indian state of Kerala. The matter remains pending before the Court.

The Travancore Devaswom Board, which manages the shrine at Sabarimala, has long prohibited the entry of women in the age group 10-50.[1]

The petition was filed before the Supreme Court of India challenging this ban as unconstitutional and violative of Articles 14 (right to equality), 25 (freedom of practice of religion) and 26 (freedom to manage religious affairs) of the Indian Constitution. While the Devaswom Board justified the ban stating that it was based on a long-standing customary practice, the petitioners contended that such discrimination was neither a ritual nor a ceremony in accordance with the tenets of Hinduism. The petitioners also stated that the entry of women into the sanctum sanctorum was condemned as a “sin” by the temple authorities.

The ban had been earlier challenged before the Kerala High Court in 1991 in S. Mahendran v. The Secretary, Travancore, where the Court ruled that the ban was constitutional and justified in accordance with a long-standing custom prevailing since time immemorial.

In the present case, however, the Supreme Court appears to doubt the existence of such a custom and has therefore asked the Devaswom Board to prove that women did not enter the sanctum sanctorum 1500 years ago.

The burden on the Board is not merely to show that such a custom existed but also that it was and remains “essential” to religious practice. The Court further stated that the temple cannot bar entry of women unless it has a constitutional right to do so.

While the matter is sub judice, there is a similar petition pending before the Bombay High Court challenging the constitutionality of the ban on entry of women in the inner sanctum of the Haji Ali Dargah in the Indian state of Maharashtra. (Recently, the Bombay High Court upheld the equal right of women to enter the Shani Shingnapur temple in Maharashtra and stated that the earlier ban on their entry into the temple was illegal.)

By setting the precedent for similar cases, the decision of the Supreme Court in the Sabarimala temple case could have some far-reaching implications for right of women to enter places of worship.

In several earlier decisions, Indian courts have recognized that the right to freedom of religion (which is a fundamental right guaranteed in the Indian Constitution) includes right to freedom to enter a place of worship. The Indian Constitution reflects the basic principles of the Universal Declaration of Human Rights 1948 (UDHR) and the International Covenant on Civil and Political Rights 1966 (ICCPR). India is a signatory to both the UDHR and the ICCPR. The right to freedom of religion is guaranteed under Article 18 of both the UDHR and the ICCPR. Limitations to such a right can be placed only if they are justified as being necessary to “protect public safety, order, health, or morals or the fundamental rights and freedoms of others.” The United Nations General Assembly also adopted a resolution in 2009 related to the Elimination of all forms of Intolerance and of Discrimination based on Religion or Belief, which urges countries to comply with international obligations and to take appropriate measures to eliminate practices of discrimination against women.

India has also signed and ratified the Convention on the Elimination of all Forms of Discrimination against Women 1979 (CEDAW). This convention, described as the International Bill of Rights for Women, seeks to end discrimination against women and places a duty on the states to accord “women equality with men before the law” (Article 15 of CEDAW).

It therefore appears that allowing the ban on the entry of women in religious places of worship to continue would not only be unconstitutional but also contrary to India’s international obligations under several international human rights treaties.

From a comparative perspective, it is pertinent to note that India is not the only place where gender discrimination is practised in places of worship. Mount Omine and Ominesanji Temple in Japan and Mount Athos in Greece (both considered holy places for pilgrims) are known to prohibit the entry of women beyond a certain point. People worldwide have debated the legality of such a ban, noting that the Catholic and Orthodox Churches have failed to recognize gender equality. In 2003, a resolution passed by the European Parliament requested the lifting of the ban on the entry of women in Mount Athos, stating that it violated the universally recognized principles of non-discrimination and gender equality.

While we await the Indian Supreme Court’s decision on the right of women to enter religious places in India, the Court should keep in mind India’s international human rights obligation to end gender discrimination and its constitutional ideal to promote freedom of religion.

Suggested Citation: Radhika Agarwal and Devika Agarwal, The Right to Enter Places of Worship: When God is Neutral, is Gender Discrimination Justified?, Int’l J. Const. L. Blog, Apr. 6, 2016, at: http://www.iconnectblog.com/2016/04/the-right-to-enter-places-of-worship-when-god-is-neutral-is-gender-discrimination-justified


[1] Implemented under Rule 3 (b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965.

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Published on April 6, 2016
Author:          Filed under: Analysis
 

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