Preclusion of Women from Religious Places in India

By | May 12, 2020
Preclusion of Women from Religious Places in India

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Preclusion of Women from Religious Places in India Overview

The objective of this article ‘Preclusion of Women from Religious Places in India’ is to set out the instances of discrimination with women of any religion in India at religious places and its constitutionality.

Preclusion of Women from Religious Places in India

This article aims to explore the constitutional provisions for such instances happening all around the Republic of India. Surprisingly, the matter may have practical importance in every individual’s life as the matter is concerned with the individual’s right to equality and to profess, practice, and propagate religion. The question assumes importance if no such right has been provided to women in a country regarding the same. Failure to secure such rights by women may affect their overall growth and development.

For instance, women of any religion aren’t allowed to enter and pray at men-only temples and are prohibited to enter and pray at mosques along with men on Fridays. Even Parsi-woman married to a non-Parsi man is not permitted to enter and offer prayers at their religious places. Further, women of Hindu religion can’t observe fast, offer prayers, or go to any place during menstruation in some societies of India. While examining the constitutionality of such religious practices it is pertinent to keep in to view the intention of constitutional framers and established age-old religious practice. This issue requires surgical precision and rigorous examination of evidence and cannot be solely approached with a sledgehammer in the name of gender equality and the right to worship thereof.

When B.R. Ambedkar was asked why he was so passionate about the issue of temple entry for Dalits, he replied: “The issue is not entry, but equality.” What did matter to him was that the denial of equal access to religious and sacred spaces — had to be smashed.[i] Whereas, the fact is that different conditions apply to both genders, which are gender-sensitive and are therefore reasonable. The difference is not discrimination and is certainly not tantamount to inequality.

Constitutionality of Preclusion of Women from Religious Places

According to the Fundamental Rights guaranteed by the Constitution of Indian, every citizen of the country has the right to follow any religion and can worship anywhere they want. The right to equality is available to all, irrespective of whether the person claiming it is a man or a woman. It guarantees the general right to equality.

The practice of Preclusion of Women from Religious Places in India is not based on any reasonable ground which is in violation of Article 25[ii] enshrined under the Constitution of India. Furthermore, such classification is not based on intangible differentia under Article 14[iii] as the object sought to be achieved by this act is not clear and undoubtedly is unreasonable. Art. 21[iv] of the Constitution of Indian provides the liberty to women to enter the mosques and pray along with the men.

In the Haji Ali Dargah Case, Bombay High Court held that “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. And in holding that women were entitled to police protection, if needed, to exercise their right to equal access, the court placed the state firmly on the spot for effectively guaranteeing and enforcing the constitutional rights of individuals, even against their own communities.”[v]

On the other hand, the Salât ej-jum’ a or Friday prayer which is held at the time of zuhr (noon) is enjoined on Muslims by Divine command in the Qu’ran where the believers are required, when the call is made to prayer on Friday,

“O you who believe, when the call for the Salat is announced on Friday, you shall hasten to the commemoration of God and drop all business. This is better for you if you only knew. Once the Salat is completed, you shall spread out through the land and seek God’s favor and remember God frequently so that you may succeed.” [62:9-10]

The Friday prayer for Muslim men must be said in a mosque if any or in a congregation, but not performed in private. Jumu’ah prayer is not obligatory for women. The evidence for that is the hadeeth of Taariq ibn Shihab (may Allaah be pleased with him) according to which the Prophet said,

  1. “Jumu’ah is a duty that is required of every Muslim in a congregation, except four: a slave, a woman, a child, or one who is sick.” [vi]
  2. It is more excellent for a woman to pray in her house than in her courtyard, and more excellent for her to pray in her private chamber than in her house.[vii]
  3. Relations with a woman (even wives) have no place inside a mosque.[viii]

As per the general meaning of the words of Prophet it is better for a woman to pray Zuhr in her house. If a woman wants to go to Jumu’ah, then she has to avoid adornments and perfumes and avoid being together with men in the streets.

In another instance, it is significant that the rules of Brahmacharya, when observed by women, too require them to avoid all contact with men, in that case, if there is a temple whose female deity has vowed to be a Naishtik Brahmachari then similarly her male devotees can be excluded to enter in the said temple to avoid a situation of slightest deviation. Also, it is an accepted fact that Hindu deities have physical, temporal, and philosophical form. Worship of each of these forms is unique and not all forms are worshipped by all persons. In point of fact, this is specifically laid down in the Sri Venkataramana Devaru v. The State Of Mysore.[ix]

Hence, a one-size-fits-all standardized approach to gender equality may do grave injustice to the sheer religious diversity and its religious institutions and would, in fact, come, at great and irreparable infraction of religious rights.

Menstruation as a Bar to Entry

In some societies of India menstruation is being perceived as unclean or embarrassing, inhibiting even the mention of menstruation whether in or in private.

A major question arise that whether the extent of the act authorizes the exclusion of women from temples is constitutionally valid or not?

The exclusion of women should not be considered as valid as it violates the constitutional morality and is also violative of Article 25(1) of the Indian Constitution which stipulates that all persons are equally entitled to practice religion. Further, while menstruating, the women are in a process of death and rebirth which clearly makes it a very natural and sacred process and is also beyond the human control and therefore no discrimination should be made based upon such practices that are prevalent in the society.

Prohibiting women from entering the temple is similar to the practice of untouchability because menstruating women are perceived as ‘impure’ and ‘polluted.’ The restriction offends the concept of gender justice, psychologically impacts women and their ability to have normal social interactions with the rest of the society as well as family members and perpetuates practices that are derogatory to women.

While religious institutions are of the view that this practice doesn’t override Article 25 which allows one to practice a religion of their choice. It is also maintained that what constitutes an essential religious practice is for the religious community to decide. Therefore it would not amount to discrimination under Article 25 of the Constitution of India, nor will it be considered under Article 17 as the act of untouchability, as the intention of legislation under Article 17 was never to target or separate “women” as a class under it.

Conclusion | Preclusion of Women from Religious Places in India

Religious practices can’t solely be tested on the basis of the Right to equality and religious beliefs. A balance has to be maintained between the both while making scrutiny of such practices on legal grounds considering the fact that the issues of deep religious sentiments should not be ordinarily inferred by anybody except for the worshippers who have the best knowledge of the essential religious practices.

However, the observation can be drawn that the women of all religions had full right to worship their God. Not allowing women of any religion is an orthodox view by completely ignoring the law of land.


References

[i] Gautam Bhatia, Equality of Entry, The Hindu

[ii] Constitution of India, 1950

[iii] Constitution of India, 1950

[iv] Constitution of India, 1950

[v] Dr. Noorjehan Safia Niaz And Anr v. State Of Maharashtra And Ors 2016 SCC OnLine Bom 5394

[vi] Shaykh Muhammad Saalih-al Munajjid, Jumu’ah prayer is not obligatory for women (Feb. 02, 2006), https://islamqa.info/en/answers/73339/jumuah-prayer-is-not-obligatory-for-women.

[vii] Sunan Abu Dawood Chapter 204 Hadith No.570.

[viii] Surat Al-Baqarah [2:187].

[ix] 1958 AIR 255


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