WOMEN’S RIGHT TO RELIGIOUS FAITH FROM

A HUMAN RIGHTS PERSPECTIVE

Dissertation submitted in part fulfillment for the requirement of the

Degree of

LL.M

Submitted by Supervised by

AKANKSHA PATHAK Prof. (Dr.) ANJU TYAGI

NATIONAL LAW UNIVERSITY

DELHI (India)

2019 DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “Women’s Right To Religious Faith

From A Human Rights Perspective” submitted, as it is the outcome of my own work carried out under the supervision of (Dr.) Anju Tyagi, Professor at National

Law University, Delhi.

I further declare that to the best of my knowledge the dissertation does not contain any part of work that has not been submitted for the award of any degree either in this

University or any other institution without proper citation.

New Delhi: Akanksha Pathak Date: Roll No. 08LL.M18 National Law University Delhi

II CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in the LL.M dissertation entitled “Women’s

Right To Religious Faith From A Human Rights Perspective” submitted by

Akanksha Pathak at National Law University, Delhi is a bonafide record of her original work carried out under my supervision.

New Delhi: Prof. (Dr.) Anju Tyagi Date: National Law University, Delhi

III ACKNOWLEDGEMENT

I would first like to extend my thanks to a number of people whose help was very valuable in this research. I would like to acknowledge the guidance provided by my supervisor (Dr.) Anju Tyagi, Professor at National Law University, Delhi, as without her presence the dissertation would not have been possible. I am highly indebted to my teacher for providing constant support and supervision despite her busy schedule. It gives me immense pleasure to express my deep and profound gratitude to my mentor Prof. (Dr.) Anju Tyagi, whose efforts and dedication made this study conceivable and viable in its present form. Her untiring assiduity and stimulating response have been a great source of inspiration in completion of the work. I further wish to express my gratitude to entire NLU, Delhi family especially Prof. (Dr.) Ranbir Singh (V.C. of NLU, Delhi) and Prof. G.S. Bajpai (Registrar of NLU, Delhi) for providing all the infrastructure and facilities. I also feel pleasantly duty bound to further acknowledge the help extended to me by the Library Staff of National Law University, Delhi I would also like to thank my family and friends for their guidance and inputs in this endeavor. Last but not the least, I acknowledge and thank scholars whose work is used for completion of this dissertation.

New Delhi: Akanksha Pathak Date: Roll No. 08LLM18 National Law University, Delhi

IV LIST OF ABBREVIATION

CEDAW The Convention on the Elimination of all Forms of Discrimination Against Women ECHR The European Convention On Human Rights ECtHR The European Court of Human Rights H.C. High Court HRC The Human Rights Committee ICCPR The International Covenant on Civil and Political Rights ICERD International Convention on the Elimination of All Forms of Racial Discrimination ICESCR The International Covenant on Economic, Social and Cultural Rights S.C. Supreme Court U.K. United Kingdom U.N. United Nation UDHR The Universal Declaration of Human Rights UNCAT United Nations Convention against Torture

V LIST OF CASES

U.K. 1. Campbell and Cosans v UK (1982) 4 EHRR 293, Para 33. 2. Grainger PLC v. Nicholson, 2010, IRLR 4.

INDIAN 1. Acharya Jagdishwaranand v. Commissioner Of Police, Calcutta, AIR 512, 1984 2. Commr., H.R.E. v. L.T. Swamiar, A.I.R. 1954 S.C. 282. 3. Dr. Noor jehan Safia Niaz & Ors. v. State of Maharashtra & Ors. MANU/MH/1532/2016. 4. Durgah Committee v. Hussain Ali, A.I.R. 1962 S.C.1402. 5. Indian Young Lawyer’s Association &Ors. v. State of Kerala &Ors, 2006. 6. Indian Young Lawyers Association Ors. v. The State of Kerala, 2018, Writ petition No. 373 of 2006. 7. John Vallamatton v. UOI, AIR 2003 SC 2902 8. Joseph Sine v. UOI, Writ Petition (Criminal) No. 194 of 2017. 9. Md.Ahmed Khan v. Shah Bano Begum, [1985] 3 S.C.R. 844. 10. National Legal Services Authority v. Union of India, (2014) 5 SCC 438. 11. Shafin Jahan v. Asokan K.M., 2018 12. Shayara Bano v. Union of India &Ors., (2017)9 SCC 1, 2017. 13. Smt. Vidya Bal & Anr. v. The Sate of Maharashtra &Ors. PIL NO.55 Of 2016. 14. The State Of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 15. Yagna purushdasji v..Muldas, A.I.R. 1966 S.C. 1119.

VI TABLE OF CONTENTS

TITLES PAGE NO.

DECLARATION BY THE CANDIDATE II

CERTIFICATE OF SUPERVISOR III

ACKNOWLEDMENTS IV

LIST OF ABBREVIATION V

LIST OF CASES VI

TABLE OF CONTENTS VII

CHAPTER -1 1-7

INTRODUCTION 1

1.1 LITERATURE REVIEW 2

1.2 STATEMENT OF PROBLEM 4

1.3 OBJECTIVES 5

1.4 HYPOTHESIS 6

1.5 RESEARCH QUESTIONS 6

1.6 CHAPTERISATION 6

CHAPTER - 2 8 - 13

VII RELIGION AND HUMAN RIGHTS 8

2.1 RELIGION - WHAT IT IS? 8

2.2 DEFINING BELIEF 9

2.3 WHAT IS HUMAN RIGHT? 10

2.3.1 UNIVERSAL CONCEPT OF HUMAN RIGHTS 10

2.3.2 CONCEPT OF CULTURAL RELATIVISM 11

2.4 RELGION AND HUMAN RIGHTS 12

2.5 FUNDAMENTALIST, WOMEN AND RELGION 13

CHAPTER 3 15-22

SOCIETAL STATUS OF WOMEN 15

3.1 PORTRAYAL OF WOMEN: WESTERN AND INDIAN 15 SOCIETY

3.2 SOCIETAL STATUS OD WOMEN IN VEDIC TIMES 16

3.3 POST VEDIC SOCIETAL STATUS OF WOMEN 18

3.4 MODERN PERIOD STATUS OF WOMEN 20

CHAPTER - 4 22 - 31

INTERNATIONAL INSTRUMENT ANS RELIGIOUS FREEDOM OF WOMEN 22

VIII 4.1 ORIGIN OF HUMAN RIGHTS 22

4.2 HUMAN RIGHTS AND PROTECTION OF WOMEN 23

4.3 INTERNATIONAL INSTRUMENTS 24

4.3.1 UNITED NATION CHARTER, 1945 24

4.3.2 UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948 25

4.3.4 INTERNATIONAL CONVENTION ON ECONOMIC, SOCIAL ANDCULTURAL RIGHTS, 1966 27

4.3.5 CONVENTION ON THE ELIMINATION OF ALL FROMS 28 OF DISCRIINATION AGAINST WOMEN, 1979

CHAPTER - 5 32 - 42

WOMEN’S RIGHT TO RELIGIOUS FAITH: ISSUES AND CHALLENGES 32

5.1 FUNDAMENTALISM AND WOMEN RIGHTS 32

5.2 ISSUES AND CHALLENGES UNDER DIFFERENT 33 RELIGION

5.2.1 HINDU RELIGION AND WOMEN ISSUES 33

5.2.1(I) MANUSMRITI 34

5.2.1 (II) VEDAS 37

A. ATHRAVA 37

IX B. RIG VEDA 38

5.2.2 ISLAM AND WOMEN ISSUES 38

5.2.3 WOMEN AND CHRISTIANITY 40

5.2.4 BUDDDHISM AND WOMEN 41

CHAPTER – 6 43 - 49

INDIAN CONSTITUTIONAL AND JUDICIAL PERSPECTIVE 43 TOWARDS WOMEN RELIGIOUS RIGHTS

6.1 WOMEN’S RELIGIOUS RIGHTS AND INDIAN 43 CONSTITUTIONAL PROVISIONS

6.2 INDIAN ACTS AND PROVISIONS FOR THE PROTECTION 45 OF WOMEN

6.3 JUDICIARY’S ROLE AND CASES 46

6.3.1 ESSENTIAL PRATICE AND RATIONALITY TEST 46

CHAPTER - 7 50 - 54

CONCLUSION 50

SUGGESTIONS 54

BIBLIOGRAPHY 56

Conventions 56

X Indian Law 56

Books 56

Articles 57

Internet Sources 59

Cases 59

XI Chapter -1

INTRODUCTION Women subjugation is not a new phenomenon. The vanquishing of one sex to other is not a righteous act, and forms one of the blockades in the human development. Laws in the patriarchal society are found to be men centric and women voices are often disregarded. In the primitive societies laws were mostly based on religious norms and major religions often operated within the prescribed limits of man and womanhood. But as the society is a evolving these religious norms have to be liberated form the limits and role created by the religious tradition to man and womanhood. The constitution and human rights law are often aimed at providing a common ideals to be achieved in the society, however often the debate is created between the religious traditions and the equality norms created by the state. The right to equality and the right to individual religious freedom of women are often at the dissention with the religious freedom of community. When these individuals’ rights are contended to the community rights, the results of which are often seen as undermining the dignity and rights of women, and a higher priority is given to community interest, which violates women liberty and freedom. Women individual’s rights are often subdued by the religious norms and the fundamentalist of religions portray them as the protector of religion in the world of modernizing society. However, how this fundamentalist of religion claim to be only prohibiting and restricting women freedom and not of men is the dilemma. Thus for the answer, devolution on the text of major religions becomes necessary whether these text contain only women centric prohibition or not. This dissertation seeks to perceive the problems behind the favoring of community religious rights and undermining individual’s women religious rights due to which women’s liberty and freedom are curtailed which forms one of the inalienable human rights. This disquisition further sees the recognition and protection of women religious rights and freedom in the International Conventions whether there is any instrument, which comprehensively deals with the problems of women individual’s religious rights over the community.

1 One of the most difficult problems for the state, which has recognized community interest, is to move away from it those ideals and provide individual equality. Societal dictates and law both are social truth, which cannot be over shadowed. The societal directs that emerge, as traditions, laws or standards of conduct are a reality, acknowledged and pursued as obvious, regardless of what, its legitimacy. The dictates of culture are practiced and followed without any proper reasoning, which comes from the adherence and practice of these norms as a habit. Since men have had an overwhelming voice in making the laws, characterizing it and forming it reflects essentially how they see the other'. Indeed, even where they suit the other', by making correspondence arrangements in the laws, they do it in their very own light and understanding and thus make an in a general sense imperfect viewpoint as the premise of the laws in this manner making the gendered idea of legitimate thinking and language of the law. This dissertation investigates the pressure between two contending originations of gender one liberal model, which follows non-discrimination, and another based on a religious model of sexual orientation, which lays down exclusive roles and duties and a pecking order among people.

1.1Literature Review

United Nations report on study of discrimination in the matter of religious rights and practices (1960) by Arcot Krishnaswami helps to understand various forms of discrimination in different countries. The research also tries to find out a plan of action to eradicate this problem. Krishnaswami brings out de jure and de facto exercise that is being done in different countries the later highlights the how administrative practices and law operates in the filed of diminishing and widening the scope of freedom of religion, thought and conscience. The study is very extensive and acutely highlights the point of adverse practices that are leading to discrimination. Anamika Rehman (1990) in her famous article deals with how women rights are being violated when it’s pitted against their own religion. She further highlights the violation happening to women under Muslim religion where she deals with the decision of Shah Bano case, which gives a way that how these cultural practices practiced in Islam, are conflicting various International Instruments such as CERD and CEDAW.

2 In a book written by Kelly D.Askin and Dorean M.Koenig, Volume 1 (1998), which deals with human rights, issues from a gender perspective lens particularly of women. The book has aptly combined the writing of different authors to show various kinds of abuses of women around the world and also points out the common human rights issues affecting women from different perspective. The different authors in the book have contributed a lot to bring out vividly women human rights issues pertaining to religion, culture and traditional practices. Volume 3 (1998) of the book talks about what are the personal rights of women and discusses the religious issues concerning women in Islam and Christianity. Catherine E. Polisi (2004) she contends how cultural relativism is impacting the universal application of human rights to all persons equally. In the article she contends of equal treatment of men and women in the Hindu and Muslims law and to prove her point she devolves upon the text of Vedas and other instrument of Hindu literature and similarly under Muslim Law to say that these instrument of religion provided for equal treatment of women to men. Varsha Chitnis and Danaya Wright (2007) write about the evolution of law and women status in India. The article penetrates into the history of the India from colonial times and traces the feminist movement during those times. Later on writer’s postulates about the reforms that have been taken place in the post-colonial period through various examples of like widow remarriage, dower reforms etc. Carolyn Evans, Anna Hood and Jessica Moir (2007) the article starts with beautiful poem which rightly captures the treatment of women in the society and how religion plays a crucial role in delimiting and delineating rights and duties of women. The article articulates competing interest of the two worlds one of liberals and other of religious, which creates a great divide between the role of men and women in society. Anat Scolnicov (2007) in her famous article talks about how women are struggling in the realization of their religious rights within their own religion. Article throws light upon how women individuals’ freedom of religion is given up in the terms of community or group religious rights. Further she is arguing that there exist certain international legal determinations that can be taken for enforcement of individual women right to religious faith over community and group religious rights. What is religion and belief? Is defined by Lucy Vickers (2008) in her book in which she tries to bring out a differentiation in them and she gives a vivid encounter between freedom of religion in the workplace and in various other dimensions further she also

3 highlights the freedom of religion and its dimension in the other countries like Europe and UK. Archana Parashar (2008) in her article talks about how personal laws have been constructed and is being used as disadvantage tool towards women and how state is changing personal laws to bring some reform. Further she traces different responses of feminist towards this “post- structural proliferation of differences”. In an article Anuradha Saibaba Rajesh (2010) analysis the present status of women from the two points and says how “safe heaven” i.e. home of women is not actually safest place because women have been subjected to domestic violence and second point through which she sees vulnerable treatment of women is at work place. She tried to highlight the Constitutional and International provisions and the active role of judiciary when it comes as savior of women rights in the context of sexual harassment. She studies these issues through different construction such as legal, ethical, cultural and social in India. Roger Trigg (2012) looks at the assumptions that lie behind the subordination of religious liberty to other social concerns, especially the pursuit of equality. He gives examples of different western countries where freedom of religion is vanishing steadily. He challenges the equality rights of a person when religious rights and belief of an individual is compromised by state. His enunciation of belief and what is the ambit or restriction that can be put in the light of religious freedom is described in the article. Marie A.Failinger, Elizabeth R. Schiltz, and Susan J. Stabile (2013) throws light on different theories of feminism and their encounter with religion and secularism.

1.2 Statement of Problem India is known for its pluralistic cultural diversity of Hindu, Muslim, Christian Buddhist, Jain, and Sikh etc. all over the world. Religions have played a very crucial role in governing rights of human being all over the world its impact can be seen in many activities, faiths and belief of an individual. However Religion has many aspects positive and negative, religion also has stark difference in their attitude towards assigning the women rights. In India women lives are particularly governed by the established vice and virtues of different religions whether these activities or established norms of religion are right or just is not seen by the male chauvinistic or

4 patriarchal society which has always subjugated women and India has long history of women subjugation from the time Ramayana and Mahabharata to present time. This study has been undertaken to highlight how women right to religious faith is being denied by the proponents of different religion and how these denial is affecting the most basic human right that is right to equality in the matters of religious faith to men and women equally. In light of new feminist movement in India where women’s have started to raise a voice against tranny like Muslim’s women against triple divorce or Hindu women against entry in temples this study will focus on such activities and recent cases and how such right is violating the human rights of women and what are it’s impact and judicial responses to these issues. The study will also highlight how Human rights laws and Indian Constitution and other laws are protecting the religious right of women. Even after 67 years of Independence Indian Constitution and other laws has still failed to accomplish its Constitutional goals mentioned in the preamble and various fundamental rights.

1.3 Objectives

• The objective of this research is to investigate and highlight women’s right to religious faith in different religions. • The study aims to show how women have been denied equal religious faith if compared to men. • The research focuses on how this denial has affected the human rights of women and to study the role-played by religion in human rights arena. • To study and focus upon the provisions to understand why despite legislations, women are still at disadvantaged position in comparison to men despite the Constitutional guarantee of equality, continue to reiterate traditional feudal mindset about women’s religious rights and faith and fail to provide women with equal access. • To suggest reforms to make the existing laws r just and uniformly applicable to all women irrespective of their religions and to find a interface between human rights and religious rights.

1.4 Hypothesis

5 Women have not been given equal religious rights if compared to men and women have been always subjugated by the proponents of different religions and their activities and rights are determined and controlled by these religious norms which has led to denial of basic human right of women in spite of protection through human rights norms and various Indian laws and Indian Constitution.

1.5 Research Questions

• What is women’s right to religious faith and how different religious practice impacting them? • How women’s have been denied equal religious rights under different religions and its impact on basic human rights of women? • Role played by religion in controlling the religious right of women? • Do the existing Human rights law recognizes and protects the religious rights of women or not? • Do the existing laws of India focus on providing equality to women in terms of their religious faith?

1.6 Chapterisation

Chapter 2 will be religion and human rights under which concept and contextual relevancy will be explained. Further under this chapter we will also see the interface between religion and human rights whether religious ideals and norms strengthens or favors human rights or not. Chapter 3 would explain the status of women by their contemporary evolution from historical to present time in terms of religious influence on women rights and duties. Chapter 4 will deals and investigate on the International recognition of women’s right to religious faith and this chapter will also deal with the human rights recognition of women rights through various conventions and International treaties and how these right are being protected. Chapter 5 will devolve upon the women’s right to religious faith and will investigate and research upon various issues and challenges with the respect to violations under different religions. This chapter will also highlight how religious practices are interfering with human rights of women.

6 Chapter 6 will discuss the Constitutional and Judicial Perspective by highlighting the how Indian Constitution recognizes the women rights and protection given by the Constitution to women’s right to religious faith whether they comply with international levels or not. This chapter will also analyze the court responses on various issues that discusses interface between religion and human rights of women through different cases. Chapter 7 would tie all the above-mentioned threads together to further to give viable solution and will give concluding remarks.

7 Chapter – 2

RELIGION AND HUMAN RIGHTS

Ever since the evolution of mankind, people have showed a natural inclination towards some supreme power, a power that cannot be seen but exist. Any phenomena that could not be answered through reasons was thought and termed as God controls it. Man has always believed in some form of faith towards supreme power that he worships sometimes to get favors and sometimes as to appease him because of fear. Since the ancient times many of the writings can be seen that concerns mostly with prescribing some from of right and duties which have to obeyed towards God. These writings have influenced various religions over time. This brings us to one the most essential question whose understanding is most crucial to understand this discourse that what is Religion? And what is Belief? And how religion and belief of persons or set of persons join and impacts the Human Rights of persons.

2.1 Religion - What it is?

James Madison called religion "the duty which we owe to our creator, and the manner of discharging it”.1 There can be no uniform definition of religion because in the world there exist different religions. Some religions belief in one God like Judaism, Christian and Islam but this idea or observation of one god may not be so in Hinduism, which is a polytheistic religion, or Buddhism followers of which does not believe in any god. Many scholars have defined religion and one of such definition is of Paul Tillich that “religion relates to man ultimate concern and these ultimate concerns give meaning to ones lives.”2 However if this definition is true then atheist who does not believe in religion would also come under this definition because they also have some concerns in their life. Another writing of Chopper defines religion as

1 Mark David Hall, Madison’s Memorial and Remonstrance, Jefferson’s Statute for Religious Liberty, and the Creation of the First Amendment, 3 The University of Chicago Press Journal, 32,38(2014). 2P. TILLICH, DYNAMICS OF FAITH, NEW YORK, HARPER & ROW, (1958).

8 “belief that have some extra- temporal consequences.”3This definition of religion solves one issues of irrational choice made by person of different religions like for example one does not eat in his life to get spiritual salvation. Thus by seeing these definition we can say that religion is particularly a group of people who come together and who believe in the same god and ideals i.e. the adhere to one set of belief and practices. This brings us to analyze our next discourse that what is belief or what are these sets of ideals that people adhere to?

2.2 Defining Belief

Most of the Constitutions and other International Covenants does not only gives freedom of religion but also gives freedom of belief for example ECHR under Article 9 protects both religion or belief.4 Agnosticism, atheism and humanism these are all set of belief even though they are not religious or religions in themselves.5 Thus philosophically belief can be a system or an idea that you believe in, it does not have to be particularly a religious it can be non- religious or anything.6Malcolm Evans “no system can countenance the right of anyone to believe anything and to be able to act accordingly” has pointed the same out.7 Earlier belief was given a very restricted meaning and its interpretations were mostly based on similarity of religion but after certain cases, which took under ECtHR and U.K. changed the definition of what amounts to belief. In a famous case ECtHR laid down five criteria to define what is belief which is it must not only be a simple opinion it has to be held genuinely and should have cohesion, cogency and seriousness which have an aspect in life of human and in the democratic society.8 This decision was relied in another important case of UK that defines belief in which the Appellate tribunal of Employment held that belief about climate change is a belief based on reasons that one should cut carbon emissions otherwise it will have a cataclysmic effect.9

3 Jesse H. Choper, Defining ‘Religion’ in the First Amendment, Berkeley Law Scholarship Repository, 579, 597-61, (1982) 4European Convention on Human Rights, Art.9, 1950. 5LUCY VICKERS, RELIGIOUS FREEDOM, RELIGIOUS DISCRIMINATION AND THE WORKPLACE, OXFORD AND PORTLAND, OREGON, 2016. 6Id. 7 M Evans, Religious Liberty and Non- Discrimination in MLP Loenen and P Rodrigues (eds), Non Discrimination Law: Comparative Perspective, The Hague, Kluwer Law International, 131 (1999). 8Campbell and Cosans v UK (1982) 4 EHRR 293, Para 33. 9Grainger PLC v. Nicholson, 2010, IRLR 4.

9 Thus after going through above discourse and definitions it can be said that there can be no defined definition of religion and belief. Courts after seeing the persistent situation mostly interpret religion and belief in their own way. However there are certain set of criteria followed by court in interpreting belief that they should protect an individual’s integrity and dignity.10 The problems comes when these different set of belief conflict with certain set of norms of equality, opportunity, representation etc. Often an individual within a group or belonging to certain religion possess different mindset and belief toward his or her own system which creates a problem when states gives priority to community or group belief over an individuals i.e. and individuals is pitted against there own society which violates basic human rights of an individuals as separate entity.11

2.3 What is Human Right?

Human rights claimant claims that there are certain justifiable freedoms that an individual can claim from his society. Human rights are often called as “basic” or “natural” rights. By the meaning of basic or natural right it is considered, as any national Constitution or laws such as personal law should not abridge these rights, and these rights cannot be taken away from any individual. 12 . Ronald Dworkin has suggested, “human rights ordinarily "trump" over other interest of public”.13 They have been specifically defined and divided into two categories one is “civil and political right” and other is “economic and social rights” under the “United Nation Declaration of Human Rights”. A human right purports existence of certain political relationship between individual and society. It creates a limitation on the power of state for the protection of these rights of individuals and on the individual side it creates a commitment towards other individuals in society. There are two approaches to study human rights i.e. human right as a universal concept and human rights from the view of cultural relativist.

2.3.1 Universal Concept of Human Rights

10Id. 11Anat Scolnicov, Women and Religious Freedom: A Legal Solution to a Human Rights Conflict, 25 Neth. Q. Hum. Rts, 569, 570-571(2007). 12J.E.S FAWCETT, THE LAW OF NATION, 151(1968). 13 11 LOUIS HENKIN, THE UNIVERSALITY OF THE CONCEPT OF HUMAN RIGHTS (1989).

10 Human rights have been closely tied with the concept of rights, which are “universal, indivisible and interdependent and interrelated”. This concept is uprooted in the Vienna Declaration and World Human Rights Conference 1993. It also asserts “the universal nature of these rights and freedoms is beyond question.” 14 Some of the theorist has connected human rights, with the concept that man is a rational being and universal rights which is granted forms the basis of that as a rational being by nature and if these rights are not granted a human being will be considered as slaves and not free.15Jack Donelly argues that, “human rights are unarguable universal”.16Shashi Tharoor a staunch supporter of human rights contends human rights over any cultural reservation and says human rights are a“ shared faith in humanity and cultural considerations becomes irrelevant.”17 However the discussion that human rights are universal doesn’t end here because of the supporters of cultural relativism.

2.3.2 Concept of Cultural Relativism

Culture is like tar even though you want to leave it still sticks with you because the family and society that you are living have influenced your ideologies. Cultural relativist is an approach towards determining the validity of human rights as an international law. Cultural relativism is not a method but is an ethical standard, which assumes that there is no culture whose belief and customs can dominate over all the other cultures in moral sense, there cannot be hierarchy of cultures.18Cultural relativist consider that cultural is the soul source of validity of cultural and moral rights.19. Cultural relativist believes that different countries can have different perceptions of human rights. One thing can be perceived as human rights violations in one country and in other country it cannot be. Main argument between is that cultural differences of different societies cannot be reconciled into a single notion of human rights

14 UN General Assembly, Vienna Declaration and Programme of Action, art 1,12 July (1993)

15Nghia Van Hoang, Transcendent Values of Universal Human, 18 Kor. U. L. Rev. 15,15,17 (2015). 16JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY AND PRACTICE 1 (ITHACA AND LONDON: CORNELL UNIVERSITY PRESS, 389-392 (1ST.ED.1989). 17Shashi Tharoor, ‘Are Human Rights Universal?’ , 16 World Policy Journal , 1,1-5 (2000). 18 Janice Love and Natalie Hevener Kaufman, General Ethnic, Racial and Religious Differences, 954 See also Rhoda E. Howard, Human Rights and The Search for Community, 32 Journal of Peace Research, 1,1-4 (1995). 19 Jack Donnelly, Cultural Relativism and Universal Human rights, 6 Human Rights Quarterly, 400,401-05 (1984),

11 because different cultural societies have different ideas that should be basic human right according to their own culture.20 Particularly this idea has flowed from the different third world nation like Asia and Africa which see community rights and not the individual rights these nation have placed more importance on economic, social and cultural rights than civil and political rights. 21

2.4 Religion and Human Rights

Religion has played a great role in influencing human rights as whole and also different forms of conventions such ICESCR and ICCPR. There exists different form of religion like Hinduism, Christian, Islam, Buddhism, and Jainism etc. in the world. All these religion have different cultural practices and ideologies. The main issues between religion and human rights arises when the cultural practices of religion violates gender equality and is considered as a validating different form of gender roles and discrimination in the society. The Word “Culture” has been defined in UNESCO as "the set of distinctive spiritual, material, intellectual and emotional features of society or a social group, it encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs."22 Cultural difference occur not only in the ideologies of nations but also in practice for example in some culture women are considered pure when they go through tortures procedure of genital mutilation whereas in other culture it can be seen as blatant violation of human rights. In some Asian countries menstruating women are considered as impure whereas this conception cannot be seen in the western societies. The main distinction lies between the conception of right and wrong, moral or ethical by one cannot be the same for other. The answers to the moral or ethical depends upon the mindset of persons what through their culture can be moral or ethical will be rights for them. Example can be seen in Somalia where for the people living there for them women circumcision is justified whereas this concept is totally indifferent in western societies. Relativists argue that their cultural practices have come to be recognized slowly with the pace of time in the western

20 Tracy E. Huggins, Anti-Essentialism, Relativism and Human Rights, 19 HARV. WOMEN'S L.J.89, 92 (1996) 21 Josiah A. M. Cobbah, African Values And The Human Rights Debate: An African Perspective, 9 Human Rights Quarterly, 309, 309-331 (1987). 22Louis E. Wolcher, Cultural Diversity and Universal Human Rights, 43 Cambrian L. Rev., 44 (2012)

12 societies also like wearing of veil by Muslim women in France. However many perceive cultural diversities as blockade on realization of their rights and freedom, which could have, been accomplished by the universal concept of human rights. It is also believed many a times that nations are using culture as a defense under whose veil they practice cruel traditional practice such as gender discrimination that can be seen in many nations such as India, Africa, Pakistan, and Iran etc.

2.5 Fundamentalist, Women and Religion

The investigation of women and religion regularly looks at role of women inside religions and religious principles identifying and describes various rules relating to gender roles particularly relating to women in religious history. Most religions raise the status of men over women, have stricter sanctions against women, and expect them to be submissive to men. While there has been advancement towards balancing these discriminating roles through various machineries, still religions generally still lack towards providing equality. There are fundamentalists within each religion who effectively oppose change. There is frequently a dualism inside religion, which throws women on one side, while requesting of dedication on the other. 23This leads a few women's activists to consider religion to be the circumscribing boundary for female liberation. Thus, after going through the above discourse and situation which explains the different idea of religion and belief, the chapter also shows different conception and theories of Human Rights from the perspective of different nations such as western and third world developing countries like India and Africa, it becomes quite clear that there exist conflicting interest of people in agreeing to some common norms of Human Rights which should be given highest priority to uphold dignity of persons. However the proponents of religion are arguing on the basis of cultural relativism theories that there are certain cultures, religious norms and customs, which cannot be given away in the name of Human Rights. Moreover these supporters of cultural relativist theories of human right have used religion as tool to subjugate women as has been agreed by the supporters of

231 KELLY D. ASKIN AND DOREAN M. KOENIG, WOMEN AND INTERNATIONAL HUMAN RIGHTS LAW, 533-622 (1998).

13 universal concept of human rights. According to them cultural relativist are committing vast violations of human rights under the veil of religion.

14 Chapter 3 SOCIETAL STATUS OF WOMEN

A sequentially basic investigation into past record of occasions is a disclosure of rehashed wounds and usurpations with respect to man towards women. This issue is as old as the historical backdrop of humanity. Oppression over the other is negative inhuman propensity and man's conduct over ladies is more regrettable than that of animals. Man chauvinism is quite visible if we see how man has contrived women through various religious, traditional, cultural and customary practices. So as to survey the genuine position of women in Indian family and society, and to know how women have been treated in the past and have been denied basic rights, therefore it is necessary to study India's social history. The status of women in India amid various ages or times of progress has seen many ups and down. There is abundant proof in every Indian sacred writing that consigned women as peons deprived of human dignity.

3.1 Portrayal of Women: Western and Indian Society

Women have always been portrayed as weaker sex in the society, which is quite evident from the stories heard of Snow White to Cinderella in Western culture and from Sita to Shakuntala in Indian society. Women were dependent on man not for living only but also for their existence in the society. For e.g. Cinderella was shown as a girl always doing household work and thinking of her prince charming to give her subsistence for further life likewise in India sacrifice of Sita, how she pursues Ram into outcast and then later when she is snatched by Ravana she had to prove her as purity to Ram, which shows how women were always attached with purity and piousness. Women during Greeks time also were treated as a mere object and to marry a husband their father had to give dowry.1 “Heroic Nudity” nudity of male athletes in Greek times during matches were quite prevalent where only unmarried

1Sarah B. Pomeroy Source, Charities for Greek Women, 35 Mnemosyne, Fasc. 1/2, 115, 115-17 (1982).

15 women’s were allowed to see the matches which portrays men as dominant group in their society.2 In Indian society the narrative of Anasuya from the Markandeya –Purana, Anasuya's significant other who was an untouchable requested his better half to convey him on her back to a place. On the way, towards their journey the spouse kicked a furious Rishi, who cursed Anasuya that her husband would die before sunrise whereupon, the loyal spouse, by methods for her forces, which she had obtained as a ‘pativrata’, denied the sun from rising. The sun, normally, needed to comply with the request of a ‘pativrata’, darkness secured the earth until divine beings at long last interceded and induced the Rishi to with draw his curse. Further instances of the ‘pativrata’ from the Mahabharata are Savitri, who wrested the life of her significant other from the demise god Yama. These instance and stories show how women were being portrayed in Indian society, their image was always being shown as pious, righteous and clean and always abiding by the command of her husband which was her sole duty. However, the position of women has not always been so submissive and discriminating at least not in the ancient times. Status of women in India can be studied through various times which can be summarized into Vedic times and post Vedic times.

3.2 Societal Status of Women in Vedic Times

If one needs to study the status of women in India during ancient times one has to come across the works of many Indian and western scholars such as Upadhya, Bader, Altekar, Mayer, Horner whose research provide quite insightful information into status of women in ancient times. Toward the start of the Hindu civilization, this degradation was not to be found or not on a similar grounds as of today. There has been an inclination of religious sacred writing which attempts to justify that initially all religions were fairly ideal to women and their right implementation is falling behind. Writing of Manu in Manusmirti in chapter III verse 56 consoles us “Where ladies are respected, the god brings happiness"3 or of prophet Mohamed: "Heaven is at the feet of moms".4 During this time type patriarchal society that exist today was not existent.

2Id. at 115-118 325 F. MAX MULLER ED.& G. BUHHER TRANS, SACRED BOOK OF THE EAST, LAWS OF MANU, 85 (1886). 4 Gabriele Districh, Women's Movement and Religion, 21 Economic and Political Weekly, 157-58 (1986).

16 The condition of women in pre Vedic time shows the social achievement of a society. In the Vedic age, women were given opportunity for profound advancement and scholarly improvement. In spite of the fact that the Aryans were occupied with fighting for political expansion, they looked to women for their support. 5 The situation of women amid the early civilization in Vedic age was vastly improved. Proficiency and recorded inquires shows that ladies held a place of uniformity within the Vedic time frame. Young ladies were taught like young men and needed to go through a time of ‘Brahmacharyas’. The marriage of young ladies used to happen at a genuinely propelled age, regularly at sixteen years old to seventeen years. There was no purdah and confinement of ladies, they took offers in penances and religious obligations; they participated in state events, and many other activities of science and literature like queen Bispala during the Rig Veda was engaged in warfare, which shows women, also participated in state activities. 6 Women were considered as scholarly people who helped their spouses, as companions and cherishing aides in the voyage of life of their accomplices, in there religious obligations and the focal point of their residential pleasure. There was a group of women called ‘Brahmavadinis’ who devoted their life in the studying Hindu religious text7, thus this establishes that women in early times were allowed to study unlike in the middle times where the religious text were supposed to be read and interpreted only by fundamentalist of religion. Louis Jaccolot during 1837-1890 wrote about how “women in Indian civilization during Vedic times were given equal place when compared to men, they were treated with respect in family and society”.8 Thus these above instances and statement personify that status of women during Vedic time period was far better if compared to post Vedic and present times. Altekar a famous scholar who wrote on women status during Hindu civilization and he considered women rights and freedom during this period a myth according to him women were given freedoms and rights by men just to make use of them to produce child they were just considered as baby carrying machine especially by Aryans so to increase there army.9 Thus Altekar has made quite sexist assumption on about the status of women in Indian society.

5 Uma Chakravarti Kumkum Roy, A Review of the Limitations and Possibilities of the Historiography of Women in Early India, 23 Economic and Political Weekly, 1, 2-3 (1988). 6 Catherine E. Polisi , Universal Rights and Cultural Relativism: Hinduism and Islam Deconstructed, 167 SAGE, 41, 41-46 (2004). 7 Ibid. 8SWAMI ABHEDANANDA, INDIA AND HER PEOPLE, 253(6TH ED. 1945) 9Supra note. 5 at 3-4

17 Similarly scholar and researcher Bader gives the perception of wife in ancient India and how women has been fantasized as wife who has to listen to the ordain of her husband though decorum did not allowed her to answer or question back.10 These scholars gave varied perception of the decline of women status due to the many factors like need for son for death rights or for joining in the wars, which weakened their own theory.11

3.3 Post Vedic Societal Status of Women

As by the Post Vedic time women’s status in Indian society became worse than compared to the Vedic period. Women were not given equal rights and Vedas were used as tool to subordinate women. Various practices like ‘jauhar’ and ‘purdah’, child marriage, dowry became prevalent during Middle Ages in India. ‘ Purdah’ system was prevalent in Muslim where women had to cover themselves from head to toe with clothes; it was also prevalent under Hindus where women had to cover their head and face as a mark of respect towards elderly people.12 Similarly ‘jauhar’ was started by Rajput’s in India where the wife of martyr’s soldiers who died in the war had to be burnt alive with the body of husband so as to save them from enemy humiliation.13 Thus women were being bounded by different religious norms, which even though was not mentioned in the Vedas itself. The men who were in charge of the religion were subjugating women. The problem comes when these men for the purpose of protecting religion, did not give a way to bring social and cultural reforms in the society.14 However the status of women in southern parts of India was considered better if compared to northern India but according to some authors it was not so.

C. Balasubramanniam’s has mentioned about the golden age of women in southern part of India where women were treated equally and had all types of freedom whereas to contrast this freedom and to criticize this freedom as was talked by him, he himself mentions about the ‘queen syndrome’ where women were praised for their patience, chastity and submissiveness, this was not only it there were levels of chastity

10Id. 11Id. 12 Dr. Shridhar. M. Mullal and Chandrakala. S. Halli, Status Of Women In India” Status Of Ancient, Mediaeval And Modern, 2 Imperial Journal of Interdisciplinary Research (IJIR), 297, 298 (2016). 13Id. 14Veena Poonacha , Hindutva's Hidden Agenda: Why Women Fear Religious Fundamentalism, 28 Economic and Political Weekly, 438, 438-39 (1993).

18 prevailing in the south top class would go to the women who would die from grief, from the husband death, second class of chastity goes to the women who with the death of her husband commits ‘suttee’ a religious practice in Southern India, where women threw herself onto her husband pyre and third class of chastity belongs to the women who lived her life in the suffering.15 Similar things can be observed in other religions also like in Muslims, the proponents and verses of Koran have controlled women, the wearing of veil and not giving her equal status in marital rights are the examples of women domination. 16 However women under Muslim religion had freedom of re-marriage after divorce and widowhood, which was not given in Hinduism. In Christianity also bible provides men as the head and controller of women, which needs women to be pious, obedient and silent in public.17 However even during these times there were various social reformers who took the task to protecting women such as Raja Ram Mohan Roy who abolished sati and brought the widow remarriage system in India. Peary Charan Sarkar had started first girl’s school in Calcutta. Various women social reformers such as Pandita Ramabai, Mrs. Annie Besant, Dr. Sarojini Naidu, Kamla devi Chattopadhyay, Durgabai Deshmukhand others started fighting for the protection of women. Despite these examples, status of women in the society during this time was unprivileged. They were not given any right to hold property of their family because of which women were dependent on men. In spite of these instances against women, many reforms were taking place in this period but at the same time there were instance of female feticide being noticed in the southern parts of India. In Tamil Nadu there were many instances being noticed of disappearing girl child, which were brought into attention by various news articles like ‘Born to Die’ according to this girls were being killed by their own family members due to the fear of dowry. Gita Arvamundan in her book ‘disappearing daughters’ wrote about this issue, she conducted the survey on this issue and found a strange thing of girls getting vanished in large numbers in the district of Madurai and Ulsampatti in Tamil Nadu. 18

15 Gabriele Dietrich, Women’s Movement and Religion, 21Economic and Political Weekly 157,158(1986). 16Id. at 158-60 17Id. 18GITA ARAVAMUNDAN, DISAPPEARING DAUGHTERS, THE TRAGEDY OF FEMALE FETICIDE, 2-4 (2007)

19 3.4 Modern Period Status of Women

At present also status of women in the society has not much improved, even though women have been given equal rights to men then also they are not considered as equals, there are still many violations such as religious, cultural and political where women are lagging behind the male members of society. There are so many customs and practices where women are being treated with humiliation and are not given equal rights, like not to enter temple during menstruation because they are considered as impure another such customary practice is ‘Pavadai Dhavani’ prevalent in Southern India where girls when they hit puberty, have to go through a ceremony where they are forced to live outside the house in a hut during the days they are menstruating, this practice can also be found in many countries like Japan, Croatia, Africa, Brazil etc.19 Similarly in Muslim religion women have always been fighting for equality rights whether concerning to divorce or maintenance or property, there has been a constant denial of equal status to women. In Christian religion catholic churches have denied the women right to be ordained as priest where as protestant has accepted this connotation of women priest. Women in today’s era also have to abide by the orders of their family and husband. In many houses women are still not able to get proper education and there still exist gap of 20% in gender pay between men and women in India despite of the same qualification.20 Women participation in politics has also been quite low with 15% in the parliament even in India, which holds 49% of total women population in the country.21Empirical studies have also found that domestic violence has been a substantial part of Indian homes and majority of married Indian women’s life. According to the National Family Health Survey in it’s third report in the year 2005 -2006, about 14.7% of women between the ages of 15 and 49 has experienced sexual violence, and about 19.8% of women have been emotionally tortured.22In improving the condition and status of women applause has to be given to our lawmakers who made different acts such as Hindu Widows Remarriage Act, 1856

19India Times,https://www.indiatimes.com/culture/11-first-period-traditions-from-around-the-world- that-celebrate-a-girl-s-journey-into-womanhood-338129.html, (Last Visited on 15th March, 2019) 43 Economic Times, https://economictimes.indiatimes.com/magazines/panache/gender-pay-gap- scenario-daunting-in-india-women-get-paid-20-less-than-men/articleshow/63204351.cms, (Last Visited on 15th March, 2019) 44 Economic Times,https://economictimes.indiatimes.com/news/politics-and-nation/womens-political- participation-in-india-low-need-more-economic-survey/articleshow/62696726.cms, (Last Visited on 15th March, 2019) 22Anuradha Saibaba Rajesh, Women in India: Abysmal Protection, Peripheral Rights and Subservient Citizenship, 16 New Eng. J. Int'l & Comp. L. 111, 116(2010).

20 that, applies to every single Hindu widow, regardless of cultural and religious regulations concerning remarriage. Similarly others acts such as Hindu Marriage Act 1955, The Special Marriage Act 1954, Hindu Adoption and Maintenance Act, 1956, The Muslim Woman (Protection of Right on Divorce) Act, 1986, The Maintenance of Christian Wives and Children Act, 1869, Immoral Traffic Prevention Act 1956, Dowry Prohibition Act, and Pre-Conception, Pre-Natal Diagnostic Techniques (Prohibition and Misuse) Act, 1994 And Rule 1996 to control this sex determination and ‘Female Feticide’ were enacted to save women offenses like Dowry, 'Female Feticide', Infanticide, brutality and so on and which helped in the improving the status of women in society.

Thus after going through above discourse situation of women can be analyzed during Vedic and post Vedic times. In India it can be said that status of women has been an up and down ride. Status of women in Vedic time were nominal and they were living in peace, they were given right to participate in function of religious and political course with men, but later with the coming of post Vedic period status of women deteriorated, they were being controlled by the proponent of religion and were being downtrodden by men in the society which gave rise to patriarchal society in India. Now in the present time situation of women has somewhat changed, women have been given various fundamental rights through various acts and legislations, thus in present scenario, status of women can be said to be improved compared to post Vedic period. But there exist many situations where women have been denied equal rights. Moreover there still exists many customs in society that are being followed to deny women rights. Thus, like Altekar has said women were never given equal status in any society, in the Vedic age women were not aware of their rights only duty they know was taking care of their husband but when during post Vedic period women came to realization of their role and rights apart from their duty, they were being subjugated by men which aroused the debate of equality and equal status. Thus the criticism as has been shown by the researcher like Altekar and Bader that men only used women as a tool during ancient time also and happiness of women was just a mirage created by men can not be repudiated.

21 Chapter – 4 INTERNATIONAL INSTRUMENT AND RELIGIOUS FREEDOM OF WOMEN

4.1 Origin of Human Rights

Human rights come into existence from the inherent dignity of an individual and are recognized by all the states having a civilized legal system. Human rights are considered to be emanating form natural rights. The creation of human rights is definitely the outcome of long struggle between people and State. However the origin of these rights can be traced back form the time of Greek and Roman philosophers. Hobbes, Locke and Rousseau always gave their theories for the protection of human rights by State. Hobbes considered these rights a very important aspect and connected these rights to universal concept.1 However, it finds its true origin in seventeenth centaury under the theories of natural rights given by John Locke who considered natural rights as inalienable and which cannot be abrogated by State.2 Later on Jean Jacques Rousseau gave the theory of general will which is seen as the instrument of participatory democracy and Kant divided these rights into three categories which were civil, international and third which enjoyed by every individual because he is considered as a part of world.3 Thus eventually we can say natural law gave the evolution of natural rights of world.4 Thus eventually we can say natural law gave the evolution of natural rights. However this evolution concept from nature laws has been mostly criticized by the nineteenth and twentieth centuries theories especially by the positivist, utilitarian and Marxist theory. Bentham called “human rights as simple nonsense: natural and imprescriptible, rhetorical and nonsense upon slits”.5 But after the huge out cry from the World War I and II people came to the realization that there has to be mechanism to protect these wars human lives cannot be sacrificed like this.

1Sarbani Guha Ghosal, Human Rights: Concepts and Contestations, 71 Indian Journal Of Political Science,1103,1106 (2010). 2PROF. DR. P ISHWARA BHATT, 2016, CONSTITUTIONALISM AND CONSTITUTIONAL PLURALISM, 111- 112(2016)See also John Griffiths, What is legal pluralism? 24 J. Legal Pluralism and Unofficial L. 1,38.(1986). 3Nghia Van Hoang, Transcendent Values of Universal Human, 18 Kor. U. L. Rev. 15, 17 (2015). 4Id. 5HERNANDEZ TRUYOL BE, ‘HUMAN RIGHTS, GLOBALIZATION AND CULTURE: CENTERING PERSONHOOD IN INTERNATIONAL NARRATIVE’ IN MORAL IMPERIALISM: A CRITICAL ANTHOLOGY, 353(2002).

22 It was after the after the World War II that leaders of the developed nations gathered together and established a defined mechanism to save the lives and dignity of individual, which was drafted by Eleanor Roosevelt guided by the Human Rights Commission, which was adopted on 10 December 1948 unanimously by 56 countries that were member of United Nations. Preamble of the Declaration stated “recognition of inherent dignity and inviolable equality of all members in the human family is the foundation of freedom, justice and peace in the world”.6There were certain crucial instruments that were adopted by the United Nations General Assembly first it adopted international covenant on Civil and Political right and second covenant that was adopted by the General Assembly in 1966 and finally enforced in 1976 was Covenant on Economic and Social Rights. Beside these covenant, many treaties like ICERD, UNCAT have been adopted by the United Nation.

4.2 Human Rights and Protection of Women

The idea of equality and non-discrimination on the ground of sex exists in every single international instruments relating to human rights. Women who comprise half of world population are frequently exposed to abuse and human rights infringement. Right to equality and recognition of individual religious freedom of women stand in conflict with the community religious freedom.7 Thus, its not only the equality rights of women that stand in conflict with community rights but their right to individual religious freedom is also jeopardize with this. International Instruments cast a commitment on the Member States to join hand and make arrangements for the elimination and eradication of sex oppressive laws, customs and practices and for giving equivalent rights to women. All qualifications, limitations that are hindering or invalidating the enjoyment of rights to women, are required to be eliminated by the Convention on the Elimination of All Forms of Discrimination Against Women, 1979. India ratified CEDAW in 1994 for the purpose as has been laid down in Article 1 of CEDAW that is “it made to focus on the different forms discriminations that women face and aiding to remove those discriminations, that either in any ways intends or effects the participation of women in public life equally”. It likewise

6U.N. General Assembly, Universal Declaration of Human Rights, 10 December 1948. 7Anat Scolnicov, Women and Religious Freedom: A Legal Solution to a Human Rights Conflict, 25 Neth. Q. Hum. Rts. 569 (2007).

23 required the member States to annul all traditions, conventions and religious practices that victimize women. CEDAW aims not only to achieve formal equality but it also tries to seek that women are treated on equal terms with men under the law and further it tries to strengthen the rights that have been given on paper but the implementation of rights still lacks in reality. It does not claim to do and establish a protectionist mode of equality, where women are given equal rights and then later they are discriminated by the reservations made for their own good, but it rather tries to establish women’s right to be equal and not just equal rights on papers which is a corrective or a more substantive mode of equality. It acknowledges the distinction between men and women and notices that the subsisting position of women is because of centuries of discrimination and aims to change these socially constructed distinction and differences. Thus for women equality sometimes means realization of freedom within their own religion itself rather than whole world.8 Vienna Declaration and Program of Action is another human rights declaration that was adopted in 1993 by the World Conference on Human Rights held in Vienna, Austria. This declaration further upheld the idea of Human Rights as an indivisible and universal standard, which states cannot take away; it also envisages that the standard and principles set by the United Nation are common standard, which needs to be achieved by all the States and the document itself serves as an inspirational source. Vienna declaration also recognizes the rights of women in its preamble that “Human Rights of women and girl child are inalienable, integral and indivisible part of the universal human rights."9

4.3 International Instruments 4.3.1 United Nation Charter, 1945

The concern for the recognition of equal rights of men and women without any discrimination of gender and religious freedom started with this charter, which provided for gender equality and religious freedom to all men and women equally. Preamble of United Nations Charter upholds the equal rights of men and women however it does not contain the world religion.10 Similarly Article 1(3) of the charter

8Id. at. 571. 9 U.N. General Assembly, Vienna Declaration and Programme of Action, 12 July 1993. 10United Nations, Charter of the United Nations, Preamble Para 2, 24 October 1945.

24 affirms the fundamental freedom of all without distinction to race, sex, language or religion,11 which marks the purpose of the U.N. Article 56 of U.N. charter creates a binding obligation on the member to promote the rights guaranteed under Article 55(c) which says “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.”12 Further States are under an undertaking to cooperate in the promotion of human rights, otherwise it would undermine the values of the Charter, some writers like Manley O. Hudson view Article 56 does not create legal obligation, however this view discredited when the United Nation acted extensively in the area of human rights and their promotion by establishing certain pre-determined goals for achievement.13 Moreover it can be seen that none of the International Covenants that a guarantee of freedom of religion and belief does not recognizes the specific individual religious rights and belief of women.14

4.3.2 Universal Declaration of Human Rights, 1948

This treaty embodies a set of principles, which list certain inalienable human rights to be followed by the nations; every member state can take up steps for the promotion and protection of human rights in their respective nations. However, nations are not under a binding and stern obligation to follow the principle of treaty. The liberal notions of human rights provide the non-discrimination rule on the basis of sex, religion and political or other opinions.15 The only article that particularly mentions the word women is Article 16(3) and 25(2) of the UDHR. These articles contain a strong element of protective approach towards women particularly relating to motherhood and childhood but the UDHR does not embodies any notion pertaining to individual freedom of women to religious rights and belief it contains only the general provisions which prohibits discrimination of women. According to different theorist like Howard Hassmann and O’ Brien the definition embodied in Article 16(3) and 25(2) of UDHR shows a somewhat conservative approach towards women rights, these articles excludes the protection to women who due to some reasons are not able to conform to the social norms of an ideal family as has been given under Article

11Id. art. 1(3). 12Id. art. 55(c). 13 Courtney W. Howland, Challenge of Religious Fundamentalism to the Liberty and Equality Rights of Women: An Analysis under the United Nations Charter, 35 Colum. J. Transnat'l L. 271,327-30 (1997). 14Anat Scolnicov, supra note. 7, at 569, 572 (2007). 15Supra note. 6, art. 2, 10 December 1948.

25 16(3), further both the articles accord motherhood and children hood as a natural rather than cultural construction which makes the reformation of these cultural ethos and thinking more difficult.16 UDHR also embodies the protection of religious freedom, it guarantees both right to internal belief and their manifestation with certain limits. UDHR also protects and guarantees the “right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief and in teaching, practice, worship and observance thereof.”17The rights guaranteed under this are subject to one single limitations clause that “in the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others' in addition to a number of other factors” 18 This give fundamentalist and state to give suitable interpretation and recognition to number of values, customs existing which in turn does not solve the existing tension between these values and practices. Due to this limitation states and the “fundamentalist of religion” are able to establish their will over the will of rights and freedoms of women, these “fundamentalist of religion” are able to put constrains on the religion which denies women various rights such as women are being denied participation roles in ritual rights such as being ordained as a priest or another, women are being denied the rights to interpret the sacred text.19 However one should read Article 29 with Article 29(3) which says the “ rights and freedom cannot be exercised contrary to the purpose of U.N.” 20 Thus democratic consideration should not be given weightage that subvert the protection of Article 55(c) of U.N. 4.3.3 International Covenant on Civil and Political Rights, 1966 This also highlights the equality and non-discrimination provision like every other International Instrument. Article 2 of ICCPR ensures state recognition of these rights without any distinction as to religion, race, caste, sex, language and color etc. whereas

16 Carolyn Evans; Anna Hood; Jessica Moir, From Local to Global and Back Again: Religious Freedom and Women's Rights, 25 Law Context: A Socio-Legal J. 112,116-17 (2007). 17Supra note. 6, art 18. 18Supra note. 6, art 29(2). 19Carolyn Evans supra note.16 at 116-18. 20Supra note. 6, art 29(3).

26 Article 3 highlights the principle of equality in men and women. 21 Article 26 proclaims equality before law and equal protection of laws by state;22 the equality of law under Article 26 has reaffirmed the right given under Article 7 of UDHR, however under this Covenant this concept has been given a different interpretation just to ensure identity of equal treatment. It was meant to ensure equality of treatment, which would not prevent differentiation between individuals or group of individuals.23 Further there has been no clear definition how the drafters wanted to describe the non- discrimination in the documents due to which it has been left to the interpretations. India has ratified this convention in 1979 without any reservations. Article 18 of ICCPR enunciates “freedom of religion and belief” as non-derogable rights.24 Human Right Committee under General Comment No.31 has defined in Article 2 that it cannot be subject to reservation25 further General Comment No.28 has defined what are the reservations to the ICCPR.26 The committee said the human rights treatise are different form other forms of treaty that create just an obligation between states under which they can reserve application relating to general rules of international law rather human rights treaty represent the customary international law many not be subject to any reservation and committee has listed freedom of thought, conscience and religion as customary law.27

4.3.4 International Convention on Economic, Social and Cultural Rights, 1966

This Covenant covers details and gives specified provisions relating to the entire field of social welfare in international persona. This Covenant, which compliments ICCPR, establishes social welfare rights not covered in any other documents. Article 2(2) and Article 3 covers similar provisions enlisted in ICCPR. India has adopted ICESCR in 1979 with reservation to certain clauses like Article 1, 4, 7(c), and 8, ICESCR was made to give “progressive realization”, articles of ICESCR are not meant to be declared by states, they are said to be recognized by nations.28 One other perhaps

21 UN General Assembly, International Covenant on Civil and Political Rights, art. 2 & 3, 16 December 1966. 22Id, art.26. 23Anika Rahman, Religious Rights Versus Women's Rights in India: A Test Case for International Human Rights Law,28 Colum. J. Transnat'l L. 473,490-93 (1990). 24 Supra note. 22, art 18. 25UN Doc. CCPR/C/21/Rev.1/Add.13, 2004. 26UN Doc. CCPR/C/21/Rev.1/Add.6, 1994. 27Anat Scolnicov, supra note.7,at 573. 28Anika Rahman, supra note. 23,at 494-95.

27 critical provision is Article 15(1)(a) which expresses that "State Parties to the present Covenant recognize the privilege of everybody to participate in cultural life." 29 Although the expression could ostensibly incorporate religious law, alternate rights perceived by Article 15 are scientific, artistic or literary make this elucidation profoundly farfetched.30

4.3.5 Convention on the Elimination of All Forms of Discrimination Against Women, 1979

This Convention is considered to be the International bill of rights for women. This Convention was adopted to eradicate all the existing forms of discrimination among women which other International instruments were not able to remove. CEDAW itself does not have any express arrangement managing oppression of women on religious grounds, however it has a few appropriate articles managing to remove the practices dependent on the inferiority of both of the genders31, ideal right to vote and hold open office32, access to medicinal services33 and eliminating discrimination in marriage laws34 and providing equality before law35, these rights should be not be subject to any reservations by the state further rights mentioned in this convention offers equal protection and compliments the protection guaranteed by ICCPR. CEDAW general comment to Article 16(2) says the states to withdraw the reservation made by them on religious and cultural grounds. 36 The interpretation given by HRC in General Comment No. 28, that freedom of religion should not be interpreted to put limitation that create discrimination between men and women on the basic of equality.37 General Assembly passed a Declaration in 1982 called as elimination of all forms of discrimination based on religion and belief, which is considered to one the most developed instruments for the promotion of religious freedom in International law.38 Article 2 of the declaration defines “intolerance and discrimination based on religion or belief which means any distinction, exclusion preference or restriction based on

29U.N. General Assembly, International Covenant on Economic, Social and Cultural Rights, art.1, 16 December 1966. 30Anika Rahman, supra note.23, at 494-95. 31UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, art. 5, 18 December 1979. 32Id. art 7. 33Id. art 12. 34Id. art 16. 35Id. art 15. 36Anat Scolnicov, supra note.7, at574 -75. 37Id. at 575. 38Carolyn Evans supra note.16,at 116-20.

28 religion or belief and having its purpose of nullifying the enjoyment or recognition or exercise of human rights and fundamental freedoms”. 39 Further clause 2 of the declaration focuses on the test to be applied to prove religious discrimination, one it says their should be a religious restriction or distinction and secondly thus distinction should be such that it violates basic human rights and freedoms on the equal basis. However general assembly declaration is not given a binding obligation like other treatise, compared to this general assembly declaration CEDAW offers better enforcement and binding mechanism on states. Even though it lacks in some parts like many states have made reservations to its clauses on the basis of religion like 12 Muslims states have made reservation to mostly all of the clauses, which comes in conflict with religious laws, similarly Singapore, Israel and India have made certain reservations to the clauses.40 India has made declaration to Article 5(a) and Article 16(1) and Article 16(2) of CEDAW and complete reservation of Article 29. Government of India abides by the provision with its policy of non-interference in the personal affairs of any community without its initiative and consent relating to Article 5(a) and 16(1). With regard to Article 29, India has declared itself not bound by Paragraph 1 of this Article. Thus by going through the above elaboration and elucidation, it can be seen that there are multiple instruments that aim to protect the rights of women, even though they do not recognize the individual religious rights and belief of women separately, but these instrument recognize the equality of men and women in every aspect, further they put an positive obligation on the nation to promote the equality and the values of the charters and other conventions without any form of reservation. Many a times the State rectifies a treaty with certain reservations like Egypt has made reservation to Article16 of CEDAW which puts a restriction on the Islamic Sharia act recognition of women rights equivalent of their spouses should not be questioned41, similarly United States and other countries like Sudan, Somalia, South Sudan and Iran etc. have yet not ratified the CEDAW. India also has many reservations to CEDAW and ICESCR as discussed above. Reservation clause is provided because it has been perceived that a few rights may need more effort to be acknowledged than others. Some economic,

39Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, art.2 , Nov. 25, 1981, 21 I.L.M. 205 (1982) [hereinafter Declaration on Religious Intolerance] Article 2. 40 Carolyn Evans; supra note. 16,at 116-120. 41Courtney W. Howland, supra note.13,at 371(1997).

29 social and cultural rights, for instance, may require more time to be acknowledged, in light of the fact that they require more of resources for implementation of those rights or increasingly considerable basic changes. A few nations at the rectification of the treaty may have certain set of laws, conventions, and religious or social practices that may victimize women and State want time to remove these unfair arrangement of law within a country. Where a State can't be reasonably expected to accomplish right promptly, its commitment is comprehended to be 'progressive', and can be fulfilled by endeavors that produce gradual advancement towards acknowledgment of the right. With this object convention provide reservation clauses but reservation should be made within the boundaries and purpose that convention tries to fulfill, its object should not be destroyed by the reservations. But even after this many state use reservation clause as veil to protect people on certain grounds for due recognition and respect for rights of other people or community like reservation to Article 2 and 5 of CEDAW is impermissible because it destroys the whole purpose of the convention even though some states have put reservation to Article 2 on basis of certain national laws, religion, tradition and culture which violates the convention itself.42. People of the International community has taken many step towards the protection, the CEDAW was specifically drafted to put an end to all forms of discrimination against women that were not specially covered under other International Convention, but the active participation is still needed form the states, state need to overcome from the influence of religious fundamentalist and cultural relativist approaches and should pave a way for equality, even if the reservation are made there must be a valid justification like if States enacts a law that is detriment to women, it should establish reasons that such limitation are necessary for due recognition of religion and a democratic society, there should be “due recognition” given to rights of women or other group rights.43 Moreover interpretation of the International instrument should not be narrowly construed and more wider interpretation should be given that can protect and provide women equality in all respect like in India many such examples can be given section, Indian Government has laid down various laws which has abolished the traditional customary practices followed by the people and even made there practice a punishable offence like The Prohibition of Child Marriages Act, 2006, which

42UN and Women, Asia and Pacific,http://asiapacific.unwomen.org/en/focus-areas/cedaw-human- rights/faq#whyallowreservations,(Last visited on 30th March, 2019). 43Courtney W. Howland, supra note.13,at 345.

30 criminalizes the marriage of children below 18 years, custom of child marriage was prevalent in Hindu and Muslims religions. Similarly custom of Dowry was prohibited and penalized by Dowry Prohibition Act, 1961, Hindu women were given rights to hold property by The Hindu Women Rights to Property Act, 1937 which abolished the long patriarchal system that women cannot hold property and further amendments to the Hindu Succession Act, 2005 gave women share in property of their parents also which helped in uplifting the condition of women in India. Other acts that were promulgated are Indian Divorce Act, 1969, Equal Remuneration Act, 1976, Protection of Women from Domestic Violence Act, 2005. Muslim Women were also given rights of maintenance after Divorce by The Muslim Women (Protection of Rights on Divorce) Act 1986, further under 125 of Criminal Procedure Code was liberally interpreted to include all women even Muslims so that all women are treated equally and are given right to maintenance like women’s of other religion. Recently Indian Court has made a move towards this by recognizing women individual’s rights in the case like Sabarimala44, Tripple Talaq45 and Shafin Jahan46, court have given a very wide an liberal interpretation in these cases and in Sabrimala courts even recognized the women religious rights over the community rights for the first time. Thus States need to move away form cultural and traditional basis of fundamentalist and patriarchal societies, because they give rise to different gender roles in society and move towards a more secular laws where there is recognition and respect for the rights of all.

44Indian Young Lawyer’s Association &Ors. v. State of Kerala & Ors, 2006. 45Shayara Bano v. Union of India &Ors., (2017)9 SCC 1, 2017. 46Shafin Jahan v. Asokan K.M., 2018.

31 Chapter – 5 WOMEN’S RIGHT TO RELIGIOUS FAITH: ISSUES AND CHALLENGES

Conflict of laws arise when the laws of one country differs from the laws of another country. In a nation like India where there are multiple laws, all citizens are being governed by religious law, which has been established on a totally different norms and principles from the secular law of the country, because of which sometime there arises a conflict between the Constitutional Rights, Criminal Procedure and a Religious Rights. Many a times in India there can be seen a direct conflict of laws between Criminal Procedural law and Muslim Personal laws relating to the Muslim women’s divorce and maintenance rights. This specific conflict of laws problem becomes more important because over the years it has raised International issues of gender discrimination and violation of women rights. In a country like India it becomes more difficult to move towards a secularization of laws, when there are different personal laws for different religions, and where people are governed by sacred text and have faith in different tradition, customs and practices which makes a balancing of these laws to secular of country a difficult task.

5.1 Fundamentalism and Women Rights

Differentiations of role of men and women have always been promoted by the religions. There exists different groups in every country who have a particular mindset of religion and they do not want any secularization of laws in the country. They are the people who have a belief that society needs to be rescued from the secular laws, they believe in sacred and old religious text for their validation and they refuse to be enlightened from the outsider laws, they are the group of people who think religion cannot be separated form law and politics, they rejects the plural laws and believe in patriarchal society they are called “Religious Fundamentalist” and this group movement is called “Religious Fundamentalism”.1 They are the people who have created gender roles in society and believe in subordination of women and site religious text for their validity. These groups of people have posed an acute problem

1 Courtney W. Howland, Challenge of Religious Fundamentalism to the Liberty and Equality Rights of Women: An Analysis under the United Nations Charter, 35 Colum. J. Transnat'l L. 271(1997).

32 of women rights and equality. In this context the study of religious text becomes very crucial so as to establish what these religious text convey and whether their interpretation as done by the religious fundamentalist is right or wrong. The religious norms have been developed in the patriarchal society and so is there text, which also imbibes the similar structure, which serves women unequally in different concepts. Study of religious text also becomes very important to see that how religious text can be protector and violator of women rights.

5.2 Issues and Challenges Under Different Religions

Women have always been oppressed by the religious norms. There are different practices and customs found in every religion that bound women in different contexts like for example Hindu women are bound by the religious duty of obedience towards their men, the rights and duties of Hindu women are often defined in the sacred Hindu Text. Similarly Muslim women have been oppressed by men by various practices such has ‘Halala’ where women have to marry some other men and get divorced then she can again re-marry her first husband, the practice of ‘Triple Talaq’, maintenance rights, property rights and not allowing women to offer prayer in Mosque whereas women are allowed to go to ‘Mecca and Madina’ this double standards of boundations have limited women to the ordainment of men. In Christian also, women are often considered as low in hierarchy than men, it is said they owe a duty towards men of obedience and chastity. In todays time also Christian women are not allowed to be ordained as priest they are allowed to be nuns. Similarly in Japan there is a mountain, which is considered as scared and headquarters of ‘Shugendo’ sect of Buddhism where women are prohibited from visiting.2 Thus in different religions there exist different practices that have bounded women in the chains of religious text.

5.2.1 Hindu Religion and Women Issues

Hinduism is world's third largest religion after Christianity and Islam. Hinduism is among the most ancient religions of the world. Starting in the Indian subcontinent it includes variety of, conviction, customs and belief. It is called as “Vaidika Dharma” or “Sanatan Dharma” by Hindus. The Hindu sages viewed the law as disclosures of God and accordingly it was given the most highest accord regard in the society. The

2Japan Info, https://jpninfo.com/40756, (Last Visited on 6th Apr, 2019).

33 Vedas fundamentally underlined upon the conduct to be observed by men and women, benefits, obligations and commitments of a man and the divinity and attainment of divine powers. The status of women in Hindu Religion is both piercing and incomprehensible. There exists a wide gap between the de jure and de facto position of ladies. From life to grave, the misuse and abuse that young women experience, both in the public and private domain, remains unparalleled and to a great extent unaddressed.3 The reasons are multifaceted, the well established feudalistic and man centric underpinnings of the Indian societal and familial life have been the primary foundations for this subordinate and lower status, as women inside this structure are seen as property of men.4 This complex socio-social and legitimate background has to a great extent obstructed strengthening of the progression of women in India. Under Hindu religion there are many groups of people who can be termed as ‘religious fundamentalist’. These groups of people believe in the ideal structure of women and portray them as goddess like Sita and Sati who were devoted towards their husband. Similarly as Sati sacrificed here life for lord Shiva similarly women who burnt themselves along their husband funeral pyre were named after Goddess Sati.5 Scared text of Hindu religion ‘Manusmriti’ and ‘Rig Vedas’ lay down roles and duties of women in the society and family welfare.

5.2.1(I) Manusmriti

Manusmriti is one of the oldest texts of Hindu Dharmshastras, it is also called as Manav Dharm Shastra it was one of the first Hindu text that was translated by Britishers to frame the Hindu Law in 1776. It has 12 chapters and 2690 verses. Manusmriti is considered to be text of Hindu Literature that defines the duties, conduct and role of every person in society. Chapters of Manusmriti are very detailed and wide which ranges from duties of a student, marriage rites and rituals, impurity and purification of person, duties of women towards their family, husband, father and son. It also contains that what constitutes a crime and the procedure of it, thus its chapters contains about debts, adultery, assaults, property, sale and ownership laws

3Anuradha Saibaba Rajesh, Women in India: Abysmal Protection, Peripheral Rights and Subservient Citizenship, 16 New Eng. J. Int'l & Comp. L. 111 (2010). 4Id. 5 Courtney W. Howland, supra note. 1 at 271(1997).

34 etc. Before any laws were framed by the Britishers, Indians were governed by the Manusmriti and Vedas. Chapter II of Manusmriti contains the duty of student but in some aspect it also deals with the behavior and conduct of women and according to Verse 213 it is said “it is the nature of women to seduce men in this world; for that reason the wise are never unguarded in the company of females”6. Similarly in the next Verse it has said, “ Women, true to their class character, are capable of leading astray men in this world, not only a fool but even a learned and wise man. Both become slaves of desire”. Chapter III of Manusmriti contains the duty of household and marriage, in its Verse 55 it has said, “ women must be adorned and respected by their father, brother, husbands and husband in laws for there own welfare”7, in Verse 56 Manu has said “ where women are treated with respect the gods are pleased and where they are not honored their no scared rites would bear and give fruits.8 In the same chapter Manu in the 57 and 58 Verse has said, “ where women live in grief there the whole family perishes and where they are happy that family prospers”9 Verse 61 and 62 of the same chapter talks about the “beauty and radiance of women, women should be radiant so to attract men and where they are not bright, all happiness would despair because she won’t be able to attract her husband”.10 Chapter V of the Manusmriti talks about forbidden food and impurity, Verse 85 of the chapter says “ a men can become impure when he has touched a “Kandala” which means a menstruating women, a outcast who are not Brahmin women, and one who has touched a corpse, men can become impure by bathing or by muttering sacred text”. 11 Verse 147-169 of the same chapter talks duties of women, Verse 147 mentions that “ nothing should be done independently by a girl, a women who is young, or aged women, even in her own household”.12 Similarly the next verse 148 defines that “a women should be subjected to her father in young age, to husband and

625 F. MAX MULLER, ED., & G. BUHHER, TRANS., SACRED BOOK OF THE EAST, LAWS OF MANU, (1886).https://books.google.co.in/books/about/The_Laws_of_Manu.html?id=xTQpAAAAYAAJ&print sec=frontcover&source=kp_read_button&redir_esc=y#v=onepage&q&f=false, (Last Visited on 8th April, 2019). 7Id. at 85. 8Id. at 86. 9Id. at 86. 10Id. at 86. 11Id. at 183. 12Id. at 195.

35 when her “lord” is dead to her sons, a women should not be left independently”.13 Verse 149 says, “women should not leave their father, husband and sons; if they do they are making their house contemptible”14, Verse 150 defines the duty of women towards her house that is “cleaning utensils and she should be clever in managing household affairs and expenditure”15, Verse 151 talks about the “obedience of women to whom she is given by her father, or brother with the father permission and after death also she should not insult her husband memory”.16 Chapter V Verse number 154 mentions “ a husband must always be worshipped as “God” by his faithful wife, through destitute of virtue or seeking pleasure or devoid of good qualities”17, Verse 155 says that “ if a wife obeys her husband she for this reason alone will go to heaven after death”18. From Verse 156 to 169 Manusmriti talks about the duties of women after the death of her husband that “she should not re-marry”19, she should “not utter another man’s name from her mouth after the death of her husband20”, and “if she disobeys this she would end up in hell and would pay for her sins”.21 Chapter IX of the Manusmriti contains the ‘Duties of Husband and Wife’ and Verse 2 of the same chapter says “women should be kept dependent on the males of their family, day and night, and during sensual enjoyments they should be kept in control”.22 In an another Verse it has been said that the “highest duty of all caste (even weak husband) is to guard their wife”23 similarly in Verse 11 it says that let husband employ his wife in the collection and expenditure of his income, keeping everything clean and in the fulfillment of religious duties and preparation of food and his utensils.24 Manu has described women in Verse 17 that “ when creating them Manu allotted to women “lover of their bed, lover of their seat and of ornament, impure desires, wrath, dishonesty, malic and bad conduct”.25 Due to the sacred nature of Manusmriti status of women as depicted in the text has been intercepted as Hindu Divine Law. Many people defend Manusmriti on the basis

13Id. at 195. 14Id. at 195. 15Id. at 195. 16Id. at 195. 17Id. at 196. 18Id. at 196. 19Id. Verse: 161, at 196. 20Id. Verse: 157, at 197. 21Id. Verse: 164, at 197. 22Id. at 327. 23Id. Verse: 6, at 328. 24Id. at 329. 25Id. at 340.

36 of Verse 55 and 56 of chapter three, which are honoring women, and says that wherever they are honored and kept happy there god is pleased and resides. This is deliberately done to hide the hatred and discrimination that Manusmriti conveys about women. The good part is just the starting part of Manusmriti and when you go in details it lays down various Verses where women should be bounded, protected and must be kept dependent upon men in their houses. It also says women should worship her husband like god and it also talks about impurity of women that they should not be touched when they are menstruating. All these Verses as has been listed depicts the philosophy and thinking of Hindu Society towards women which if seen from the human rights perspective is quite damaging and detrimental in todays society.

5.2.1 (II) Vedas

A.Athrava

In Athrava Veda book 11 chapter 5th and Sukta 18 mentions, in this “mantra of BrahmcharyaSukta, it is accentuated that young ladies should also prepare themselves as students and after that only should go into a wedded life.”26 The Sukta explicitly laid importance that girls should receive the same level of training as boys. Similarly in book 14 chapter 1 and Sukta 6 mentions “ parents should give their daughter intellectuality and knowledge when she leaves for her married home they should give dowry full of knowledge”. 27 “When girls ignore external objects and develops foresight and vibrant attitude through power of knowledge, she becomes provider of wealth of skies and earth. Then she should marry an eligible husband”.28 Similarly book 7 of Athrava talks “ wife should teach the husband ways of earning wealth, she Protector of children, having definite knowledge, worth thousands of prayers and impressing all directions”.29 Book 7 chapters 47 and sukta 2 mentions that women know everything and they should provide us with strength of prosperity and wealth.30 Same book in chapter 48 and sukta 2 says “ scholarly happy wife protects

26PRIYAVRAT VEDAVACHASPATI ,MERA DHARMA, GURUKULKANGRI UNIVERSITY, 8(2008). 27Id. at8-9. 282 KSHEMKARANDAS TRIVEDI, SARVADESHIK ARYA PRATINIDHISABHA, ATHARVAVEDA -HINDI BHASHYA, 654(2010). 291 KSHEMKARANDAS TRIVEDI, SARVADESHIK ARYA PRATINIDHISABHA, ATHARVAVEDA HINDI BHASHYA, 804(2010). 30 SRIPAD DAMODAR SATVALEKAR, ATHARVAVED KA SUBODH BHASHYA, 98(2002).

37 and enhances wealth and brings happiness in home”31Athrava book 11chapter 1 and sukta 17 mention character of women as “pure, sacred, worth worshiping, of great character, scholarly. They have given subjects, animals and happiness to the entire society.32Athrava says women should never weep due to sorrow they should be kept happily and free from all dieses and should be given with ornaments and jewels to wear.33

B. Rig Veda

Rig Veda also defines status and role of women it says “ A scholarly woman who has practiced or teaches one, two or four Vedas or four Vedas and four Upvedas, along with grammar, etymology etc. and spreads knowledge to whole world and removes ignorance of people is source of happiness for entire world. A woman who studies and teaches all parts of Vedas brings progress to all human beings”. 34 Similarly women have been given the lead stage in society works, in governmental organizations, and for ruling the nation is also mentioned in Vedas.35

Thus Vedas depicted certain positive aspect of women’s life and their living condition under their period, but as Vedas were the first sources which later lost his significance after coming of various other sources and their interpretation by others. People started referring Manusmriti, which provided a solution to their daily problems, but the people and society did not see the rationality of solution.

5.2.2 Islam and Women Issues

Islam emerged as a religion by the revelations made by the God to Prophet Muhammad for over 23 years; these revelations were then combined into a book name Qur’an, which could not include all the revelations, made by Prophet but still is one of the most significant sources of Islamic Law. 36 Islam had other principle sources such as Sunna, which contained the conduct of Prophet during explanation and interpretation, and the real path taken by Prophet and these Sunna was found in

31Id. at 806. 32KSHEMKARANDAS TRIVEDI, supra note.28, at 352. 33PRIYAVRAT VEDAVACHASPATI, supra note. 26,at 13-14. 34Rig Veda, 1.164.41, http://www.sacred-texts.com/hin/rigveda/rv01164.htm. (Last visited on 9th, May 2019). 35Id. 10.85.46. 36PATRICK GLENN, LEGAL TRADITION OF THE WORLD, SUSTAINABLE DIVERSITY IN LAW , 181-83(5TH EDITION, 2014).

38 Hadith. Urdu meaning of word Islam means ‘Submission or surrender to God’ and a Muslim is one who submits to God completely. Muslim law and Quran were able to bring some transformation in the living condition of the Arabic people; the condition of women and their infanticide was controlled through coming of Islam. However Quran and Prophet Muhammad himself made efforts to changes the condition of women which is reflected in the Verses of Quran like in the system of Polygamy in Surah 4, Verse 3 provides that ‘one should marry an orphan girl one two or three but only when, if can keep them happy, if not then he should only marry one’.37 Even then the condition of women was not so impeccable in Islamic times women had only limited share of rights. Divorce rights of Muslim women were limited they had to ask permission from their husband for divorce which was curtailment of their individual rights. Surah 2 Verse 223 says ‘wives are like tilth’ means one can approach her and do anything he wants like his own land’, Verse 228 ‘says men have authority over women in demanding respect and obedience’. Surah 2 Verse 230 talks about ‘Halala’ marriages where women can re marry her ex-husband only if she goes and marry another men and after divorce from him she can remarry. This practice of Halala marriages is criticized form many view points but main concern was for equality and freedom that it did not give women and presence of such customary practices in Quran itself added salt to boiling water of having held this practice declared as violative. Surah 4 Verse 11 says shows the unequal inheritance share where men gets double share of women, similarly Verse 43 says ‘that one cannot pray if he is intoxicated and one cannot enter into mosques in the case of ritual impurity until you have washed yourself with water’ this Verse further says that if a person is travelling and is sick or has touched a women and does not have water should wash his hands and face by rubbing it on the ground’. Surah 4 Verse 24 permits men to take women as sex slave outside of marriage. Similarly Verse 34 provide rights to men to beat women and forbid to sleep with them and to remind them the teaching of God if they fear high handedness form women. These are some of the Verses of Quran, which gives an insight to the perception of women in Islam. However Surah 2 Verse 256 of Quran forbids coercion in the matter of faith and guarantees freedom of religion and worship, which means that even a non-Muslim has freedom to worship his own

37Quran, http://al-quran.info/#home, (Last Visited on 9th , May 2019).

39 religion without any fear and coercion38 but the fundamentalist of Islamic religion have forced women to gender specific roles and held women in the control of men which requires obedience of women to their husbands and in their god. ‘Nashiz’ is a disobedient wife who is not worthy of any protection like rights to food, Mehr and other maintenance.39 Further to constrain women they were not allowed to leave the house until necessary and if they did, they have to cover themselves up with ‘hijab’ before stepping out, thus hijab indirectly hindered economic life of women because many jobs were carved from their reach due to hijab. In India also these fundamentalist approaches never wanted the codification of the Islamic law, they always favored customary and traditional practices. Muslim women are still not allowed to go to Mosques for offering prayer but they are allowed to go to Hajj Pilgrimage and Umrah with their male counterparts, there comes the question why then stop women from entering into Mosque. Prophet directive in the Hadith says ‘ not to stop women Allah salves from going to Allah Mosque’.40 Similarly another directive of Allah says that ‘ For Eid men were allowed to take even menstruating women with them, who could be present at the religious gathering but should keep away from their Musalla’.41 Thus, it is the fundamentalist who has always tried to restrain women.

5.2.3 Women and Christianity

Christianity evolved out of Judaism from a small movement in Israel by Jesus Nazareth. Christianity believes in monotheism focuses on humanity. It has been divided into two parts that is Old and New Testament. Old Testament consists of first 5 books of the bible written by Moses, it included the history during the Israel time. New Testament was written in Greek language, which began with four Gospels Mathew, Mark, Luke and John, the first three books contained the prayers by lord and narratives of birth and John defined Jesus in his writing as a divine and eternal being. Women in the ‘Ephesians’ book of the Bible of New Testament says women to submit themselves to their husband and as they are the head of women and Christ is

38Riffat Hassan, Religious Human Rights and the Qur'an, 10 Emory Int'l L. Rev, 85(1996). 39 Courtney W. Howland, supra note. 1, at 312. 40 Hadith, https://www.sahih-bukhari.com/Pages/Bukhari_2_15.php, Vol. 2, Book 13, No. 23. (Last Visited on 10th May 2019). 41 Id, Vol. 2, Book 15, No. 97. (Last visited on 10thMay, 2019).

40 head of men42. Leviticus book of Old Testament talks about the women impurity during menstruation, they are considered as impure and anything which they touch becomes impure and one who touches women during this time should make him clean by washing43. Corinthians prohibits women from speaking in the church because it is considered as disgraceful.44 However Christian do not prohibit women from entering into churches neither does the bible directly. The book Leviticus of Old Testament declares the women as unclean during those 7 days of menstruation which indirectly restraints them form entering into churches but it applies only to them who still follow the Old Testament and not the New.

5.2.4 Buddhism and Women

Buddhism is as a religion and philosophy has had a great influence over the whole world, it has deemed as a world religion because it has more followers than Hinduism. Gautma Buddha gave Buddhism as a religion, he was born in a princely family but did not have any affiliation in that life, he was focused to bring change and end the sufferings of people through enlightenment. The source of Buddhism and its text lies in the Tripitaka, these Tripitaka consists of Vinaya, Sutras and Abhi dharma. Buddhism is a religion without god and based on humanity and equal respect of all. Earlier Buddhism did not have any uniform or defined set of rituals to be performed but in the later stages Mahayana gave ritualism to Buddhism. The Buddhism is clearly focused on liberation of people through its principle and gaining Nirvana. However Theravada Buddhism is one of the oldest and one of the most conservative sects of Buddhism. Hinduism had some influence on the older Buddhism due to which some practices can be found like subordination of women from men.45 However, in the Buddhist time women were somewhat less dominated than in any other religion because Buddha believed in equality of all, but one concern where Buddhism is not clear is whether women can become Buddha or Bodhisattva or not. Mahayanist

42Bible, Ephesians, https://www.christianity.com/bible/bible.php?book=49&ver=niv. (Last visited on 11th May 2019). 43Bible, Leviticus, https://www.christianity.com/bible/bible.php?book=3&ver=niv. (Last Visited on 11th May 2019). 44Bible, 1 Corinthians, https://www.christianity.com/bible/bible.php?book=46&ver=niv. (Last Visited on 11th May 2019). 45RITA M. GROSS, BUDDHISM AFER PATRIARCHY: A FEMINIST HISTORY, ANALYSIS, AND RECONSTRUCTION OF BUDDHISM, 42(1993).

41 approves this that women can become Bodhisattva but Theravada is ambiguous about this position of women. Thus, Buddhism as a religion does not put any constraint on the women like other Hinduism, Islam and Christian in preaching of God because it is considered as religion without God. Thus history of India is filled with above religions and their text depicts the position of women, their role condition and way of life how they have been suppressed and subjugated by religious text. However these religious text have been framed in the abysmal without seeing or knowing how these customs and laws effects the life of women who is also a human being. Religious text like Manusmriti, Leviticus the Christian book and some Surah of Islam shows the total inhume treatment of women in the society, they were considered as untouchable impure and dirty but even then also the religious fundamentalist people try to defend these practices as the order of divine God which should be followed, they treat women as an evil who could destroy men if left free and unbounded. Religious fundamentalist has always held custom and practices above law, which over the times has violated the human rights of women. Thus Law is not just an entity to be followed or not, rather it acts as way or mediator between these customary practices and what is right and just. Human rights is based on inalienable rights which is based on just rights which is not just should not be practiced. Customs and religious text should be converged in such a way that the good part should be held above and imbibed into law and the part which violates rights should be changed or should be declared redundant.

42 Chapter – 6 INDIAN CONSTITUTIONAL AND JUDICIAL PERSPECTIVE TOWARDS WOMEN RELIGIOUS RIGHTS

Indian Constitution is a vast document containing various rights and freedoms for the people. It is considered as Constitution by the people and for the people. It is a document from which other principles organs of the nations derive their power, role and functions. Constitutions contain certain legal norms, which are often the result of long struggle. Our Indian Constitution is also the product of long political and social movement between the people and political leaders, which aims to provide and protect individual form various past discriminations that existed before making the Constitution. Thus Constitutions are often a bargain between an individual rights and collective or social rights of the people towards achieving desired objective. The Indian Constitution in its preamble enshrines various ideals of liberty, equality and justice, which are considered as a vision of the Indian Constitution. This fundamental law strives towards dignity of all without any discrimination as to caste, race, and sex and religion. However, India does not have any uniform civil code neither does it follow strict separation of religion and state like France and other civil law countries. India follows the principle of ‘Principled Distance’, which means it treated all religions equally rather than creating a strict wall of separation, thus Indian state can intervene or abstain depending upon the situation whether those values are promoted or undermined. 1 Women have always been a discriminated class, their individuals rights have always lost when compared to the collective rights, they have been denied to enter into temples, mosque, their economic independence has been curtailed by not giving property rights and share in the family property. But Indian Constitution is seen as a transformative vision and ever-evolving document through which Government of India has implemented various acts to bring reform in the condition of women.

6.1 Women’s Religious Rights and Indian Constitutional Provisions

1RAJEEV BHARGAVA, THE DISTINCTIVENESS OF INDIAN SECULARISM, OXFORD (2006).

43 There are many provisions in the Constitution of India that talks about freedom, equality and justice. Article 13 declares any law, legislation custom and usages void if it is in contravention of the fundamental rights of the individual but article 13 does not include personal laws as has been held in Narasu Appa Mali case2 it further sated that that personal laws is not included in the definition of ‘laws’ and ‘laws in force’ and any custom and practices which are part of personal law are also excluded from the ambit of article 13 but this contention of the court has been overturned in the recent Sabrimala Case3.Article 14 talks about state duty not to deny any person equality before law or the equal protection of law within the country, similarly Article 15 provides and furthers this vision of the preamble and prohibits discrimination on the ground of religion, race, caste, sex or place of birth, clause (2) of Article 15 talks that no person should be subjected to any disability, liability, restriction or condition with regard to entering into public entertainment places, shops, hotels, and public places such as roads, tanks, ghats should be opened for all. Thus women who have been denied the rights to practice their own belief or have been restricted to go to some place where other people are allowed would amount to a restriction under this clause which is violative of the Constitutional rights. Further state under clause (3) and (4) of Article 15 is authorized to make special provisions for the elevation of the women and children. Clause (4) says nothing in this article and clause (2) of Article 29, stop state from making the special provision for the advancement of socially and educationally backward class of citizens. Thus women who have been under suppression from the ancient Vedic times, represents the socially backward class, they can be given some benefit by the government. Further Article 25 clause (1) provides the religious rights to its citizen it gives all the freedom of conscience and free profession, practice, propagation of religion. This religious practice and propagation is subject to public order, health and morality. Further clause (2) (a) provides state power to make law, which can regulate any existing, financial, political or other secular activity, which may be associated with religious practice. Clause (2) (b) throws open all the Hindu institutions of public character to all class and sections of the Hindus. Thus this article protects the practice, rituals and ceremonies of the religion but not the all practice and ceremonies are essential part of the religion some may be based on the superstition or and erroneous

2 The State Of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 3Indian Young Lawyers Association Ors. v. The State of Kerala , 2018, Writ petition No. 373 of 2006.

44 belief which can be regulated by the state under clause (2) (a) of Article 25 and the same has been done in many cases like AnandMarg4 and John Vallamatton5. Further Article 21 gives every one the right to life and liberty, which cannot be curtailed except according to procedure, established by law. Further DPSP Artcile 38 provides state to secure a social order for the welfare of the people, which includes in providing social justice also. Thus, Indian Constitution provides protection to its women, which can be seen from these above provisions.

6.2 Indian Acts and Provision For The Protection of Women

• Dowry Prohibition Act 1961 This act was passed by the parliament to curb the practice of giving and taking any form of valuable security from one party to the other party in marriage. Dowry is an evil practice going on form years in the society due to which women and girl child is considered as liability. The Act also provided penal punishment and its amendment act of 1986 has enhanced such punishment from 2 years to 5 years and a fine equivalent to dowry or of 15000 Rupee. Death due to the demand of dowry has also been made a criminal offence under Section 304B of IPC which punishes the offender with an imprisonment of 7 years which can be extended to life imprisonment. • Protection of Women from Domestic Violence Act, 2005 In the wake alarming rate of persisting violence in the society against women the government of India enacted this act to protect women in their homes. As seen that women have been subjugated and undermined by the men from the time of Vedas and Smriti, this act provides a hope to women who have been the victim of abuse in their own home. • Immoral Traffic Prevention Act, 1956 It is an act provided for the protection of prevention of trafficking of girls to prevent their sexual exploitation. This act tends to protect the commercialization of girls trafficking and prostitution. • Commission of Sati Prevention Act, 1897 Sati is a traditional and customary practice under which a woman scarifies her life by burning herself alive with the husband pyre. This act provides the protection to

4Acharya Jagdishwaranand v. Commissioner Of Police, Calcutta, AIR 512, 1984 5 John Vallamatton v. UOI, AIR 2003 SC 2902

45 women from the long customary practices going on in the society this act and due to efforts of leaders such as Raja Ram Mohan Roy practice of Sati has been abolished. • The Hindu Succession Act, 1956 and Amendment Act, 2005 This act uplifted the women from the economic dependency of their husband and family. It provided property rights to women and equal inheritance rights to women. The amendment act further enhanced their rights under which they stand at equal position in demanding share in the property of their parents. • Dissolution of Muslim Marriages Act, 1939 Sharia act does not give the women rights to divorce, she has been given a very limited rights to for the dissolution of marriage under the religious law of Muslims due to which women if under on going abuse and violation could not give their husband divorce thus this act seeks to grant women dissolution of her marriage. • Muslim Women Protection of Rights on Divorce Act, 1986 This act was made for the protection of Muslim women after divorce and it extends its protection and maintenance after the period of Iddat also but if after the period of Iddat the wife is not able to maintain herself her liability of maintenance is not imposed on the husband rather it has been imposed on the parents of women and if not then the Wakf.

6.3 Judiciary’s Role and Cases

Judiciary has given the role of mediator, to balance to interpret the Constitutional provision and act in such a way to reconcile with the religious practice that are for the upliftment and advancement of the society. Thus judiciary has played a prominent role in shaping the Indian society. Indian leaders did not want to indulge in total disentangling of the sate from religious sphere, the Constitution was designed so that state could interact with the religious groups and see the rationality or it when they violate any right and freedom.6

6.3.1 Essential Practice and Rationality Test

In the Srirur Math case 7 the court rejected the assertion test and laid down the essential practice doctrine, thus now a particular practice should not be only religious but it should also be essential and not based on some superstitious belief. This

6 Rajeev Dhavan, Religious Freedom in India, 35 Am. J. Comp. L. 209(1987). 7Commr., H.R.E. v. L.T. Swamiar, A.I.R. 1954 S.C. 282.

46 doctrine of essential practice gave the court enough discretion to intervene and see the practices of religion form a viewpoint of Constitutional principles. Practices evolved from the superstition have been held unessential in the Durgah Committee case8 under this case Justice Gajendragadkar has laid down the Principle of rationality. Similarly under Swami Narayan case9, which opened the gates of all the Hindu temples to all classes of people court saw the rationale behind the practice. Judiciary has also played a crucial role in strengthening the gender justice in Indian society. When there is question that individuals rights have been infringed by the state itself than it is easier for the judiciary to intervene and simple see the Constitutionality of the government act and procedures but when an individual rights is not given priority due to the protection of certain group of individuals rights there lies the problem which and whose rights has to be balanced. In the famous Shahbano case10, which related to the protection of destitute Muslim women after the divorce and whether section 125 of CrPc can be applied to protect them or not. The Muslim women divorce rights were covered under the Sharia Act, which did not give maintenance after the duration of Iddat, which made Muslim women more vulnerable and discriminated among other religions. The court contended in the favor of Muslim women and applied section 125 of CrPc to them, which was highly contended because this decision overturned the religious provision under Sharia law of the Muslim. It was for the first time that court interpreted and read the Holy Quran, which was considered as a usurpation of authority of Muslims. The court first time in this tried to resolve the conflict between religious and secular laws and said that the laws were not in conflict because Muslim laws does not provide the protection of the destitute women, thus court using this principle of rationality held that in conflict between religious law and section 125 of CrPc the latter i.e. the secular law should prevail which has been given under DPSP of India. Bombay Hight Court under Haji Ali Dargah case11 has allowed the women to enter into the sanctum sanctorum from which they were prohibited to enter. The defenders sited the Quran phrases to establish that it was Prophet who wanted women should pray in the home, which is better than praying in Mosque. The court however did not find it convincing and said that there is no particular phrase in Quran that can

8Durgah Committee v. Hussain Ali, A.I.R. 1962 S.C.1402. 9Yagnapurushdasji v..Muldas, A.I.R. 1966 S.C. 1119. 10Md.Ahmed Khan v. Shah Bano Begum, [1985] 3 S.C.R. 844. 11Dr. Noor jehan Safia Niaz & Ors. v. State of Maharashtra & Ors. MANU/MH/1532/2016.

47 establish that women are prohibited form offering prayers in the Mosque, and this prohibition as seen is not practiced form a long time it was imposed a few years back and are neither fundamental to religion which cannot be laid down as one of the essential practice of the religion. Another case, which involved women’s entry to place of worship, was famous ShaniShingnaPur Madir case12 under which women were not allowed to stand near and touch the God’s Ideal. In a decision that is relied upon to have sweeping repercussions, Bombay High Court saw that no law prohibit section of women in places of worship and consequently no gender segregation in such manner ought to be endured. It is fundamental right of women and government should take proper implementation for the same. Court under this case applied and enforced Maharashtra Hindu Place of Worship (Entry Authorization) Act, 1956. In India in the famous case Sabrimala13 where a women rights were violated and women’s were pitted against their own society and were denied equal rights of religion and belief when the constitution of India itself under Article 15 says no one should be discriminated on the ground of religion and in Article 25 says everyone has rights to practice and propagate his own religion. Even then the women’s were not allowed entry in the temple. How the court should intervene in these matters of religion is the real question? Court through creating the test of ‘essentially religious practice’ and ‘practice essential to religion’ intervened in matters and only those practices, which are essential to religion without which there would be no religion, were protected. Thus Court in this case through the transformative vision and morality of the constitution has upheld the rights of women against the community interest which makes it clear that Indian Constitution gives priority to an individual rights rather than community. Courts in the case has said “ liberty in the matters of belief, faith and worship has to be exercised keeping in mind the context and values of the society where individuals are not discriminated and society proceeds on the humane grounds.”14 The court took stand of gender justice in Adultery case15 by striking down the Section 497 of Indian Penal Code, which only punished men for adultery and treated women

12 Smt. Vidya Bal & Anr. v. The Sate of Maharashtra &Ors. PIL NO.55 OF 2016. 13Supra note. 3 14 Justice D.Y Chandrachud, Indian, Young Lawyers Association Ors. v. The State of Kerala , 2018, Writ petition No. 373 of 2006. 15 Joseph Sine v. UOI, Writ Petition (Criminal) No. 194 of 2017.

48 as the property of men. In this case the court laid down that “ husband does not have the legal sovereignty of his wife nor he is the master of his wife” and CJI Deepak Mishra observed “any system treating women with indignity and as suppressed to men invites the wrath of the Constitution”. Thus in this case women position after marriage was transformed and women were no longer the not the chattel of their husband they were given individual identity where they could make fundamental choices of liberty, freedom and dignity. NALSA16 case is another case where court strengthened the justice of Constitution and equal protection and equality of laws to the transgender community and gave them the status of third gender. Through this decision court transformed the rights and gave a liberal interpretation to the fundamental rights guaranteed in part III of the Constitution. Triple Talaq17 Case further protected the Muslim women rights in Indian. Muslim women were not treated with equality they were being suppressed by the religious norms and traditional practices due which they were being discriminated not only with the men but also form the women of other religion. The practice of Triple Talaq did not gave Muslim women rights to divorce from their husband which made Muslim women a property and a chattel of men who could suppress her. The decision of Triple Talaq ended a long struggle of subjugation of Muslim women in society when it finally upheld the practice of Triple Talaq as unconstitutional and violative of Article 14 and Article 15. Thus, Indian Constitution and judiciary has abolished many old age customs like sati, child marriage, maintenance and divorce rights of women, changed marriages norms trough various legislation and cases as seen above, so the changes can be further brought by the same institutions after analyzing the transformation in the society. Traditional religious practices needs to be in consonance with the evolution of new conception of equality in the today’s world.

16National Legal Services Authority v. Union of India, (2014) 5 SCC 438. 17Shayara Bano v. UOI, 2017.

49 Chapter -7 CONCLUSION

Every religion has different conception of rights and duties there is no uniformity in practices, customs and traditions. Religion has always been dominated by the gender roles, which have been, prescribed in the religious text and people adhere to it vehemently and without any rational reasoning. One thing commonly found in most of the religions and their text is subservience, obstruction and suppression of women through different practices, roles, rituals and duties. When these traditional practices and text are pitted against the equality norms they are often seen as annihilating human rights of women. People have different set of belief towards a particular religion and its ideals, the conflict comes when community belief is chosen and individual belief is overshadowed by it. According to fundamentalist approach women are seen as an individual but women together are separate communities who have also been given rights and freedoms. Respective religions have their own personal laws and women rights are affected by these religious norms, which in turn have given raise two conceptions of thoughts, one is progressive thought and another of conservative. People belonging to conservative thinking are struggling to make more rigid personal laws through, which everyone can be bounded and state can also not interfere. Another progressive conception of people are standing in opposition of these conservatist groups and are favoring strong human rights conception of women rights.

Position of women in the primitive stages were bounded by religious ideals and women lived in horrifying situation in the post-Vedic times, there were crimes like infanticide, dowry, torture against women. Women in the post- Vedic times have been dominated by the patriarchal society. The texts of the religion on which various personal laws are based provide a deep understanding of people and societal framework towards women. Religious text such as Manusmriti provides discrimination and rigid subjugation of women through all phases of her life. A women according to Manusmriti needs to obey her father, brother and after marriage her husband. However there are still no specific verses that prohibit entry of women

50 in the temples during menstruation same as in Quran but in all religions women are considered as impure and unworthy of touch during menstruation. In Muslims Prophet wanted to bring reform in the existing condition of the women in pre- Islamic period. Prophet was focused to bring social justice and there are many verses in the Quran provide for justice in the system of polygamy also Quran talks about treating every wife equally and just. However these just norms of Qurans have lost its validity over the period and the interpretation given by the fundamentalist of Islam are followed which shows the conservatist approach, these group of people are in opposition of the codification of Islamic law in India. However society goes through a circle of changes and transformation are bound to occur. And there exist a dire need to sensitize the society regarding the annihilating conditions of women and the status that customary personals laws have brought to them. There are many facets of challenges faced by the women in the realization of their rights. Challenges may be legal which seeks the recognition of women religious rights with the community rights, another type of challenges faced by the women in realization of their rights is that the implementation of the various act like in Maharashtra the Hindu Place of Worship (Entry Authorization) Act, 1956 was not enforced fully. But the most paramount challenge women face is from the society, the attitude of society towards women situation plays the key role in determining and protecting there situation and in expanding their rights realization in the society. The society needs to see women’s as an individuals being rather than from the roles, which she plays in the family and society. Women in India have been portrayed as chaste, pious and devoted, these are the ideals that have been created by the society. Rather than supporting independent conception of women in India, a woman is expected to be devoted like Goddess Sita. Thus, there exist a need to move away form the patriarchal laws to more right based laws. Thus, its time to turn the wheel and to leave the idea that woman needs to stay reliant on a male relative from cradle to grave. From being under the guardianship of father, sibling, spouse and child amid the different phases of her life the woman now should be treated on the standards of balance and association. The Constitution of India lays down equality of women but at the same time due to the persisting traditional aspect in the personals laws realization of equality for women religious rights is still a harsh reality. Convention lays down various protections for women rights and Indian has signed most such conventions. International Conventions and International Law as whole has

51 certain drawbacks of like strict implementation and enforcement mechanism of law and articles laid down in the convention by the states that are party to it. There are many conventions that took place to eliminate the discriminating condition of women such as CEDAW and ICERD but these conventions lacks proper recognition of the religious based discrimination that women face in their life. Religious based discrimination has been recognized by different U.N. General Assembly Comments but they lack the binding obligation of the state. Further these Conventions are contained with many loopholes, which are often used by the state in creating their different pattern of following the treaty. State use reservation clauses to make separate provisions and finding a way to enforce the obligation of the treaty. Like Indian has made partial reservation to Article 5(a), both the clauses of Article 16 and a complete reservation to Article 29 of CEDAW which come in conflict with other religious laws. Thus International Convention itself lacks binding obligation and does not have proper enforcement mechanism. Indian Constitution is bound by the obligation of Treaties and Conventions signed and rectified by it under Article 51 of the Constitution and it can also lay down legislation for the enforcement of these conventions under Article 253. Many laws were laid down to enforce the commitment of International treaties like in laying down the Vishakha Guidelines court used Article 11 and 24 of CEDAW, Thus Union have unbridled power in entering and implementation of the treaty. As respects the investigation of Personal Laws of India, it is encouraging to take note of that lately, the Government of India, Judiciary and the society and different wings of the democratic country have done considerable efforts to ameliorate the persisting conditions and bring gender equality. Legislature has laid down various laws for the prohibition and abolition of deteriorating traditional and customary practices such has Dowry Prohibition Act, Commission of Sati Prevention Act and Prohibition of child marriages etc. Indian Constitution has also guaranteed in its preamble and in its various article the ideals of ‘justice’, ‘social’, ‘economical’ and ‘political’, liberty of thought, expression and belief, faith and worship and also equality of status and opportunity to both men and women equally. Thus Indian Constitution was framed in a way to adapt to the changing needs of the society and was based on just and equal norms. Indian Constitution is said to be a living Constitution, which has been marked by the

52 transformative vision. . In Saurabh Chaudri and others v. Union of India18 it was observed that “ our Constitution is organic in nature and being a living organ it is ongoing and with the passage of time law must change and horizons of the Constitutional law are expanding” similarly in the Ashok Kumar Gupta19 case court observed that “ it the duty of the court to supple vitality, blood and flesh, to balance the competing interest, principles, the text and language of the living and organic Constitution, liberally and broadly.” Judiciary in the recent years has taken the role of savior for the protection of rights of an individual as seen in Sabrimala Case. Judiciary has always in some ways tried to be the breaker of the chain of customary and traditional practices when there is violation of women’s rights from the time of Shah Bano case to the present Tripple Talaq Case. But in one aspect that judiciary fails is that it does not apply the International Conventions for the validity of its decision and only applies the Constitutional articles and involves it’s own interpretation of the religious texts which could be overturned by the legislature for gaining support form the people or by religious fundamentalist groups. A glaring example of it can be The Muslim Women (Protection of Rights on Divorce) Act of 1986, which was accepted by the legislature after seeing the loss of votes in the election of Assam when it was decided that Shah Bano Decision should be overturned. Thus judiciary role lies at the vulnerability and hands of the political and religious leaders. Thus many steps can be taken to give a binding effect to the decision of the courts and relying on the International Conventions can be one such way. Thus, there exist a very crucial need to recognize the individual’s religious rights of women both nationally and internationally, through proper recognition only women can be protected and society can move towards gender equality. Thus court through transformative vision is fulfilling the roles and ideals that have been given in the Constitution and is thus moving towards a more humane society, which is based on the equal respect and dignity of all. Women situation have been changed if seen from the past now women have become independent economically and socially, they are educated enough to be aware of their rights but still there is a lack in the objective realization of these rights.

18 (2003)11 SCC 146 19 Ashok Kumar Gupta and another v. state of U.P. and others, (1997) 5 SCC 201

53 Suggestions

• Women’s situation, role, rights and freedoms need to be comprehended by the all. For which there has to be education of all that to see women as an equal sex and not as inferior. There has to be sanitation of the society thinking so that transformation and advancement can occur. Rights, duties and restraint given under the religious text need to be analyzed rationally and from the human rights perspective, which gives absolute rights rather following it with blind eye. Women also need to bring changes in their thinking and think rationally of their acts, which they have been following without any question. • Women need to realize their self worth and abilities rather to be bound and dependent on some other person. Women have to become independent which can be achieved through education and economic independence of women. • Women condition can be sanitized by removing the sex biased norms in the personal laws and give a more egalitarian concept of laws, which can apply to all uniformly. There should be neutral laws based on non- sexist and secular idea. • Legal machinery and Women’s organization can play a vital role in creating awareness that the existing society based on patriarchal norms is not just for all and needs to changed over time. • Law and policy of the government should be properly framed and implemented which should be able to engage substantially with the problems of women and bring change in the people, state and society. • International Convention should not have the derogation clauses, which acts as a loophole for the state. If the derogation clause are there, it can set limit of years to comply with the article excluded or face the consequences Once the states signed and rectifies the treaty it should be bound by its entire article and try to comprehend its commitments sooner or later. • International Communities should have a proper committee to look for the violation of women rights in different spheres and to advice the policies and laws for saving women rights and for enforcement of those laws in the state. • International Conventions should be comprehended in the municipal laws of the state. The state many time lays down various laws and policies, which are not properly implemented. Thus proper implementation of laws is needed.

54 • Judiciary should apply International Conventions for interpreting the Constitution and laying down effective policies and obligation to be followed due the rectification of the treaty. Applying International Conventions can give decisions of judiciary an international binding and recognition in the international sphere, which will not be so vehemently overturned by the political leaders. Thus, balance has to be created between the religious rights of women and of the community one way can be as suggested by John Rawls ‘Veil of Ignorance’ where legislature does not know of it standing in society but knows the situation of the society and the bigotry practices for which it has to chose just laws but such laws cannot be made without restraining the liberty because liberty cannot be absolute. There can be another way of achieving balance by applying ‘Minimax Principle’ which applies the logic and strategy for making decision between the two conflicting rights and benefits the least- disadvantaged members of the society. Their lies the collective duty of men, women, society, and legislation to bring transformation so that future generations can flourish in the just society without any bigotry practices. Women situation has been ameliorated over the years and their rights have been to some extent recognized through various International Conventions and even in the Constitution of India but there is still there is long way to go.

55 BIBLIOGRAPHY

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58 1. 25 F. MAX MULLER, ED., & G. BUHHER, TRANS., SACRED BOOK OF THE EAST, LAWS OF

MANU, (1886). https://books.google.co.in/books/about/The_Laws_of_Manu.html?id=xTQpAAAAYAAJ&pri ntsec=frontcover&source=kp_read_button&redir_esc=y#v=onepage&q&f=false 2. Rig Veda, http://www.sacred-texts.com/hin/rigveda/rv01164.htm 3. Quran, http://al-quran.info/#home

4. Hadith, https://www.sahih-bukhari.com/Pages/Bukhari_2_15.php 5. Bible, Ephesians https://www.christianity.com/bible/bible.php?book=49&ver=niv 6. Bible, Leviticus https://www.christianity.com/bible/bible.php?book=3&ver=niv 7. Bible, 1 Corinthians https://www.christianity.com/bible/bible.php?book=46&ver=niv 8. Japan Info, https://jpninfo.com/40756 9. UN and Women, Asia and Pacific http://asiapacific.unwomen.org/en/focus-areas/cedaw- human-rights/faq#whyallowreservations 10. Indian Times https://www.indiatimes.com/culture/11-first-period-traditions-from-around-the- world-that-celebrate-a-girl-s-journey-into-womanhood-338129.html 11. Economic Times https://economictimes.indiatimes.com/magazines/panache/gender-pay-gap- scenario-daunting-in-india-women-get-paid-20-less-than-men/articleshow/63204351.cms 12. Economic Times https://economictimes.indiatimes.com/news/politics-and-nation/womens- political-participation-in-india-low-need-more-economic-survey/articleshow/62696726.cms

CASES

U.K. 1. Campbell and Cosans v UK (1982) 4 EHRR 293, Para 33. 2. Grainger PLC v. Nicholson, 2010, IRLR 4.

INDIAN

1. Acharya Jagdishwaranand v. Commissioner Of Police, Calcutta, AIR 512, 1984 2. Commr., H.R.E. v. L.T. Swamiar, A.I.R. 1954 S.C. 282. 3. Dr. Noor jehan Safia Niaz & Ors. v. State of Maharashtra & Ors. MANU/MH/1532/2016. 4. Durgah Committee v. Hussain Ali, A.I.R. 1962 S.C.1402. 5. Indian Young Lawyer’s Association & Ors. v. State of Kerala &Ors, 2006. 6. Indian Young Lawyers Association Ors. v. The State of Kerala , 2018, Writ petition No. 373 of 2006. 7. John Vallamatton v. UOI, AIR 2003 SC 2902

8. Joseph Sine v. UOI, Writ Petition (Criminal) No. 194 of 2017. 9. Md.Ahmed Khan v. Shah Bano Begum, [1985] 3 S.C.R. 844. 10. National Legal Services Authority v. Union of India, (2014) 5 SCC 438.

59 11. Shafin Jahan v. Asokan K.M., 2018 12. Shayara Bano v. Union of India & Ors.. (2017)9 SCC 1, 2017. 13. Smt. Vidya Bal & Anr. v. The Sate of Maharashtra & Ors. PIL NO.55 Of 2016. 14. The State Of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84 15. Yagna purushdasji v..Muldas, A.I.R. 1966 S.C. 1119.

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