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.