J CNLU LJ 8 201819 220 Gmailcom 20200428 135851

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Page 1 Tuesday, April 28, 2020

Printed For: BHAVESH TIWARI
SCC Online Web Edition: http://www.scconline.com
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CNLU LJ (8) [2018-19] 220
Customary Exclusion: Needless and Unjustified
CUSTOMARY EXCLUSION: NEEDLESS AND UNJUSTIFIED

by
Riya Kaushik* and Himanshu Thakur**
ABSTRACT
Exclusion is never a way forward on our shared paths of freedom and justice.
—Desmond tutu
Debarment or mere exclusion is something which every soul on earth has
experienced in some way or the other at least once in their lifetime. Not only we
remain silent but also give in to the excuses and justifications rendered by the
people for this marginalization. But what if this exclusion takes place in the name of
customs and traditions and is against a particular gender? This is what continues to
happen in the 21st century where change is the constant factor.
Can you better the condition of your women? Then there will be hope for your
well-being, otherwise you will remain as backward as you are now.
—Swami Vivekananda
While on one hand, women have become independent, strong-willed, are
entering professional fields and bringing the monopoly of men in various spheres to
an end, on the other hand, we are still fighting the entrenched stereotypes
revolving around women. In modern India, where women are in the forefront of
almost all the fields and have proved themselves no less than men, yet there
Page: 221
seems to be an emphasis on the physical chastity of women and their appearance.
On International women's day, 2017, Iceland became the first country in the
world to force companies to prove that they pay all employees the same regardless
of gender, ethnicity, sexuality or nationality. Iceland is not the first country to
introduce a scheme like this, Switzerland has one, as does the US state of
Minnesota but Iceland is thought to be the first country to make it a mandatory
requirement1 .
While these countries are making efforts to make sure that men and women
enjoy equal opportunity in the workplace, in India, even now, we are restraining the
ostracization of women being done on the authority of safeguarding customs.
Customary exclusion of women which is carried out in the garb of preserving
traditions and practices relating to a particular religion is not only deplorable but
also conjectural.
I. CUSTOMARY EXCLUSON OF WOMEN AT THE PLACES OF WORSHIP
There are a number of places of worship2 in India where either the entry of women
is completely banned or they aren't allowed to enter the Sanctum sanctorum of the
religious place. Recently, women activists were banned from entering the Shani
Shingnapur temple in Maharashtra as they tried to intrude in, protesting against the
tradition of not allowing women from entering the inner sanctorum of the shrine.
However, Senior advocate Neelima Vartak and activist Vidya Bal have filed a PIL in the
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high court, arguing that such prohibition is arbitrary, illegal and in violation of
fundamental rights of citizens3 . They have sought implementation of the Maharashtra
Hindu Places of Public Worship (entry Authorization) Act, 19564 . The Bombay High
court in response to the PIL has remarked that “Women cannot be barred from
entering the Shani Shinganapur temple,
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there is no law preventing entry of women, if men are allowed, even women should”.
If any temple or person prohibits any person from entering a temple then he or she
faces a six-month imprisonment5 the court maintained.
In a historic verdict, the Bombay high court has also permitted the entry of women
up to the restricted grave area of the famous Haji Ali Dargah in Mumbai. According to
the PIL filed by the Bharatiya Muslim Mahila Andolan6 , Dargah had been open to
women but entry to the inner sanctorum was restricted from June 2012. The Bombay
High Court Noorjehan Safia Niaz v. State of Maharashtra7 struck down the ban on entry
of women into the inner sanctorum terming it a violation of Fundamental Rights
enshrined under Articles 15, 16 and 21 of the Indian Constitution.
Patbausi Satra temple in Assam bans women from entering the temple as it
considers menstruation as “unclean”. In 2010, J.B. Patnaik, the then governor of
Assam created a history of sorts by persuading the spiritual head of Patbausi satra to
allow women into the sanctum sanctorum of the shrine, something which is contrary
to propriety. Following this, the satra was briefly open to women before the rule was
eventually re-imposed.
A misconception prevails in the Lord Kartikeya temple of Pushkar that lord curses
those women who enter the temple instead of blessing them, indeed an excuse to
prohibit the entry of women. Ranakpur temple in Rajasthan which many Indian and
International tourists visit to revere its splendor carries a huge board outside which
states when and how a woman can enter the temple. It also has rules regarding the
attire of women entering the temple complex and according to one such rule women
wearing western clothes which do not cover up till their knee aren't allowed to go
inside the temple.
The Sabarimala temple in Kerala has been stuck in a legal battle for not allowing
women between 10 and 50 years of age to enter the temple complex.. Senior advocate
Indira Jaising appearing on behalf of NGO Happy to Bleed, sought the Supreme
Court's direction to permit entry of women into the temple without age restrictions.
The PIL contended that the entry ban violated the fundamental right of women to
practice religion that included right of entry and worshipping the deity. The
Sabarimala governing board's argument is that the prohibition of women is justified by
‘custom’. As of
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October 2017, the Supreme Court is referring the constitution bench to make a
decision on the pertaining ban.
The ongoing trial in the Supreme Court has also put the spotlight on the 1991
Kerala High Court Judgment, which held that the restriction was in accordance with a
usage from time immemorial and not discriminatory under the Constitution. As the
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Supreme Court decides to examine the ban on entry of women aged between 10 and
50 years to the Sabarimala shrine, it will first have to prove wrong this 1991
judgment.
II. MENSTRUATION: MYTH v. THE FACT
Irony is that menstruation, a healthy biological process which is essential for the
survival and perpetuation of mankind is not only considered impious but also it is the
most un-talked topic in India. What is more shocking and disheartening is the fact
that menstruating women are considered to mar the sanctitude of the temples and
other religious places.
One of the mis-conceived ideas about menstruation is that the menstrual blood is
impure and one must get rid of it as it is believed to be a carrier of bad omen.
Misconceptions like these further add to the established myths and taboos about
menstruation. Barring women from offering prayers and entering the kitchen are some
of the reflections of the same.
The possible explanation of such practices can be given in physiological and
hormonal terms. Decades ago, the traditional role of a woman in the house involved
arduous and physically demanding tasks such as carrying heavy pots of water,
grinding of wheat, spices and farming duties too. In order to save women from
discomfort which included menstrual cramps, headaches and PMS syndrome, they
were prescribed rest and exempted from doing household tasks.
However, the only way to defend it in the modern times was to add a religious
aspect to it. It is disheartening to see how Westernization and Modernization has left
the taboos about menstruation untouched.
III. CUSTOMARY EXCLUSION OF WOMEN UNJUSTIFIED UNDER THE
PROVISIONS OF INDIAN CONSTITUTION.
I believe that a woman in India is restrained in all the respects be it education or
religion. No doubt that lately, there has been substantial improvements in women's
rights, but the society is never unsuccessful in drawing
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that line between men and women. Customary discrimination of women at the places
of worship is one such issue involving the gender biased practices in the name of
religion. Women's right to enter a place of worship is a right that is fundamental in
nature under the following provisions of the Indian Constitution:—
Article 14: Equality before Law the State shall not deny to any person equality
before the law or the equal protection of the laws within the territory of India.
Article 15: The state shall not discrimination against any citizen on grounds only of
religion, race, cast, sex, or place of birth or any of them.
Article 25: Freedom of conscience and free profession, practice and propagation of
religion.
Article 26: Freedom to manage religious affairs. Subject to public order, morality
and health, every religious denomination or any section thereof shall have the right.
The exclusionary practice which is exclusive to the female gender amounts to
“discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not
protected by ‘morality’ as used in Articles 25 and 26 of the Constitution. In the
landmark judgments of Naz Foundation v. Govt. of Nct of Delhi8 , ‘morality’ has been
interpreted as ‘constitutional morality’ and not popular or individual morality.
Constitutional morality may be understood as the core framework of values and
principles like equality, non-discrimination, dignity, rule of law etc., that characterizes
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and justifies the constitution. In Sabarimala case, there is a very strong presumption
that the controversial custom of restricting women offends the value of ‘non-
discrimination’ which is the central pillar of that constitutional morality.
A. Religious Laws Vis-à-vis Judicial Review.
Article 13 of the Indian Constitution mandates that any “law” that is in violation to
a fundamental right is void in nature. The Allahabad High Court in Vijay Singh v. State
of U.P.9 and Shri Krishna Singh v. Mathura Ahir10 held that “The definition of law
cannot be restricted to Article 13(2) alone and therefore “laws in force” would include
customs or usage, having the force of law.”
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The hon'ble Court here chose to interpret the meaning of word “law” to include
customs or usages, but not personal law. Thus, while personal law is exempted from
the process of Judicial Review, customs are not. Hence, it is clear that according to
Article 13 of the Indian Constitution, the court is free to strike down any “custom” or
“usage” which is in contravention of the fundamental rights of a person.
B. Unconstitutionality of denying women the access to places of worship
The prohibition on the entry of women in temples is based on discrimination against
them. It by and large targets an entire segment of the population by relying on
outdated and sexist impression of purity and impurity. It spreads prejudice on a
structured and widespread manner and is prima facie incapable of being defended and
per se is violative of Article 14 and 15 of the Constitution. The said customary ban is
clearly contrary to the provisions of the Constitution of India and as such ban ought to
be lifted and status-quo be restored.
The Religious authorities defend such unconstitutional acts by relying exclusively on
Article 26 of the Indian Constitution according to which “Every religious denomination
shall have the fundamental right to manage religious affairs”. They contend that
involvement of the state in matters which are of religious importance such as temple
entry will infringe their religious rights. It is to be rightly noted that Article 25(2) of
the Indian Constitution allows state intervention in religious practice, if it is for the
purpose of “social welfare or reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus”. In support of the argument
against use of article 26 as a safeguard it is of utmost importance to note that under
the above mentioned article, the religious authorities can only manage the affairs of
the Trust and cannot regulate the same by imposing conditions or rules contrary to the
Constitution of India.
In Commr. of Police v. Acharya Jagadishwarananda Avadhuta11 is was observed that
‘The protection guaranteed under Articles 25 and 26 of the Constitution is not confined
to matters of doctrine or belief but extends to acts done in pursuance of religion and,
therefore, contains a guarantee for rituals, observances, ceremonies and modes of
worship which are essential or integral part of religion. With respect to Right to religion
of an individual under article 25 of the Indian Constitution, the Bombay High Court in
State of Bombay v. Narasu Appa Mali12 has observed that “Religion in a modern
Page: 226
democratic State is purely a matter of the individual and his God; with the religious
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beliefs of the citizen and his religious practices normally the State would not interfere.
But if these religious beliefs or practices conflict with matters of social reform or
welfare on which the State wants to legislate, such religious beliefs or practices must
yield to the higher requirements of social welfare and reform.”
In Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri

Shirur Mutt13 it was contended that what is protected under Article 26(b) is only the
‘essential part’ of religion. The 7 Judges’ Bench laid down the essential function test,
which states that only those practices which are “integral to the faith” can get
exemption from State intervention. It was observed that, what constitutes the
essential part of a religion is primarily to be ascertained with reference to the doctrines
of that religion itself. It was also observed that the use of the phrase “of its own affairs
in matters of religion” suggests that there could be other affairs of a religious
denomination or section, which are not strictly matters of religion and to such affairs,
the rights guaranteed by Article 26(b) will not apply.
Relying on Durgah Committee v. Syed Hussain Ali14 , it is to be mentioned that
clauses (c) and (d) of Article 26 do not create any new right in favour of religious
denomination but only safeguards their rights. I contend that in the matters of
managing religious affairs, all practices are not always sacrosanct, for there may be
many ill practices like superstitions which in due course of time may be merely
accretions to the basic theme of that religious denomination. It is hereby to be noted
that entry to the temple is not essential to religion and there is difference between
“regulation of entry” and “complete prohibition of entry”.
In Venkataramana Devaru v. State of Mysore15 , it was observed that the religious
denomination cannot completely exclude the members of any community and may
only restrict their entry in certain rituals. The relevant Rule cannot be interpreted to
mean that it bars entry of women as such an interpretation would invite violation of
principles underlying gender equality.
In Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U.P.16 , it was held
that ‘The denomination sect is also bound by constitutional goals and they too are
required to abide by law; they are not above law. Law aims at removal of the social ills
and evils for social peace, order, stability and progress in an egalitarian society…’
Page: 227
IV. CONCLUSION
The causes of customary exclusion of women are many but the fountainhead among
all is the menstrual misapprehension and the delusions allied to it. It is propelled on
the pretext of protecting the saintliness of religious institutions. While these saviours
of religion talk about preserving the traditions and customs, they themselves deviate
from rectitude and blatantly proclaim notions and ‘usages’ which do not hold water.
Initially, misconceptions and facts were muddled together in order to enforce some
rules and this went on for years to create a harrowing environment for women
gradually. It's high time now that we as a society understand that the process of
menstruation is not that excruciating but the stigma that people link with it, is.
Women in the modern times have left the domains of their home and continue to
walk on the path of achieving freedom and equality but it's a sad reality that this path
is full of ordeals and requires power to fight against the socialized prejudices and
discrimination. It is no lie that menstrual myths are deeply rooted in people's lack of
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understanding of the human biological processes but with the advancement of time
and the plethora of knowledge that is at our disposal today, we must debunk these
conjectures once and for all.
Alvin Toffler once said, “The illiterate of the 21st century will not be those who
cannot read and write, but those who cannot learn, unlearn and relearn17 ”. This is very
much in accordance with the current scenario. Traditions need to evolve with time and
so do the mindset and reasoning of people.
A large number of people who are well educated not only believe in the
superstitions created in the name of god but also practice such prejudicial customs. It
is appalling to see that some women too tend to accept and continue to bear this
discrimination in their homes.
What needs to be done is that more awareness ought to be raised regarding
menses and its effects, women made to be conscious of their legal rights and men to
be even-handed. Those customs and traditions which are not consonant with the
ongoing state of affairs should be discarded. If women are not mindful of their social
rights, then no upliftment in their status can be done.
Page: 228
The father of the Nation, said “Nothing in the Shastra, which is manifestly
contrary to the universal truths and morals, can stand18 ”. No matter how
ingrained these stereotypes are, they need to be deracinated in case they do not
resonate with reality.
The most substantial way to do this is by using the power of courts. From dealing
with rapes, dowry, sexual harassment, domestic violence to giving women property
rights, many patriarchal and male chauvinistic practices have been challenged in the
courts and justice has been done. Customary exclusion of women has to be explored
from the perspective of patriarchy which has confined all the powers within it for
centuries.
However, over the years, the Supreme Court has been on fence while dealing with
personal laws. In a number of cases it has held that personal laws of parties are not
susceptible to Part III of the Constitution dealing with fundamental rights. Therefore,
they cannot be challenged as being in violation of fundamental rights especially those
guaranteed under Articles 14, 15 and 21 of the Constitution of India. On the other
hand, in a number of other cases the Supreme Court has examined personal laws on
the guidelines of fundamental rights and interpreted them so as to make them
consistent with fundamental rights. Thus, there is no uniformity of decisions. I
strongly feel that Courts need to be clear on the issue of whether personal laws can be
challenged on the ground of violation of fundamental rights or not. A consistency
needs to be brought in the judgments concerning uncodified personal laws, customs
and usages.
Nevertheless, Courts can only show the way but the change has to come from
within the society. As Gandhi Ji said, “Be the change you wish to see in the world”,
this is no time to beat around the bush and the need of the hour is to set the right
intentions and work upon them. Customary exclusion can only cease to exist by
enforcement of stringent laws concerning like rights for both men and women. That's
the only way men and women can be equal participants in the country's way forward.
———
* 2nd Year B.L.S LLB five years' integrated course from Government Law College, Mumbai.
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** 3rd Year B.L.S LLB five years' integrated course from Government Law College, Mumbai.
1
Available at https://economictimes.indiatimes.com/magazines/panache/iceland-to-become-the-first-country-in
-the-world-to-neutralise-gender-pay-gap/articleshow/58025347.cms (accessed July 12, 2018.)
2
The places of worship (special provisions) Bill, 1991: Places of worship means a temple, mosque, gurudwara,
church, monastery or any other place of public religious worship of any religious denomination or any section
thereof, by whatever name called.
3 Vidya Bal v. State of Maharashtra, PIL No. 55 of 2016 decided on 1-4-2016 (Bom).
4
Hereinreferred to as “The Act”.
5 S. 4(1), The Maharashtra Hindu Places of Public Worship (Entry Authorization) Act, 1956: Prevents any person
belonging to any class or section of Hindus from entering, worshipping or offering prayers, or performing any
religious service in any Hindu temple which is used as a place of public worship.
6 2016 SCC OnLine Bom 5394.
7
Ibid.
8
2009 SCC OnLine Del 1762.
9 2004 SCC OnLine All 1656 : (2005) 2 AWC 1191.
10
(1981) 3 SCC 689 : AIR 1980 SC 707.
11
(2004) 12 SCC 770.
12 1951 SCC OnLine Bom 72 : AIR 1952 Bom 84.
13
AIR 1954 SC 282.
14
AIR 1961 SC 1402.
15 AIR 1958 SC 255.
16
(1997) 4 SCC 606.
17 Alvin Toffler, Rethinking the Future: Rethinking Business, Principles, Competition, Control & Complexity,
Leadership, Markets and the World, (1st edn., 1998).
18 Ajit K. Dasgupta, Gandhi's Economic Thought, (1st edn., 1996).
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rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction of courts, tribunals and forums at Lucknow only. The
authenticity of this text must be verified from the original source.
© EBC Publishing Pvt.Ltd., Lucknow.

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SCC Online Web Edition, Copyright © 2020

Page 1 Tuesday, April 28, 2020

CNLU LJ (8) [2018-19] 220

Customary Exclusion: Needless and Unjustified

CUSTOMARY EXCLUSION: NEEDLESS AND UNJUSTIFIED

seems to be an emphasis on the physical chastity of women and their appearance.

In Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri

© EBC Publishing Pvt.Ltd., Lucknow.

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