Gender Equality v. Religious Freedom in Personal Laws Cases
There is a constant conflict between the tenets of personal law and the need to ensure gender equality.
In 2006, Indian Young Lawyers Association approached the Supreme Court challenging Sabarimala Temple’s custom of excluding women aged between 10-50. The Court finally heard this case in 2018 and held it unconstitutional. The custom was tested against the fundamental right to religion of female worshippers. Exclusion of women from entering the temple was declared as violative of the fundamental rights of the women worshippers to pray.
The Sabarimala judgment opened floodgates to review petitions – over 50 petitions were filed in the Court to revisit its judgment. After a series of hearings and referral, a 9 judge-bench was formed. The mandate of this larger bench was to first cull out, resolve and establish a ‘judicial policy’ around substantive constitutional questions on rights to religious freedom under Articles 25 and 26, before launching into adjudicating specific disputes.
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While this 9-judge bench is set to determine the scope of religious freedom and its interplay with other fundamental rights, several existing cases are tagged to this case: Muslim women’s right to enter mosques, Parsi women’s right to enter a Fire Temple after having married a non-Parsi, and the practice of female genital mutilation (FGM) among the Dawoodi Bohra community. Noticeably while all the tagged cases are connected to the right to religious freedom within personal laws, all of them, including the Sabarimala case concern the rights of women.
Some Indian feminist scholars argue that historically personal laws challenges have been dominated by its interplay with ‘secularism, national identity and modernity’. The contestation between personal laws and gender equality has not been prominently foregrounded. Further, they argue that all personal laws inherently have gender-based discriminatory elements, and have urged for characterising debates around religious freedom and personal laws within a strong framework of gender equality. Taking their argument further, the Supreme Court cases in Sabarimala, Mosques Entry, Fire Temple Entry and FGM becomes primarily an anti-discrimination and equality rights issue.
In the past, how has the Supreme Court engaged with personal law challenges when juxtaposed with women’s equality claims?
Jayna Kothari argues that the Supreme Court has ‘cherry picked’ battles to provide progressive gender equality judgments. In cases where the Court sees no tension between gender equality and the status quo, it has been eager to uphold women’s equality – example Independent Thought v. Union of India which read down marital rape exception in S. 377 of the Indian Penal Code, 1860. On the other hand, when the Court is confronted with gender equality claims against other fundamental rights including the right to religion, it has refused to engage with the gender equality issue. In Shayara Bano v. Union of India the Court declared Triple Talaq as unconstitutional on the basis of religion and not on gender equality. We see the same the Sabarimala judgment too.
Catherine MacKinnon has made similar arguments. She notes that while deciding personal laws related cases, the Court has found grounds other than gender equality to favour women’s claims. The Court falls back on technical reasoning and other interpretive tools to render progressive judgments without addressing equality notions. MacKinnon attempts to explain this trend. The Court might not want to disrupt the existing state of law and gender equality might be seen as a ‘western and hegemonic idea that does not respect cultural diversity’.
When the 9-judge bench decides to hear the Sabarimala Review case and other tagged matters, it might be an opportunity for the Justices to give weight to the feminist framing of personal law and religious freedom issues through gender equality lens.