Author: Ms. Ritu Pandey
SOCIETY AND JUSTICE
Perhaps the problem of determining theoretical grounds of justice is rightly considered to be one of the most acute topics in modern social philosophy. Even if we take a look at the development of society, one can find only a few theoretical problems which made mankind shake with fever at all stages of its development. This is why the problem of the organization of just society is essential for classical antiquity, modern social philosophy, and modern political theory.
The peculiarity of the idea of justice becomes apparent not only in inclination of different people to conceive it as a basis of their activity but also in the fact, that researcher of various movement, such as religious, political, legal philosophical, psychological and many others, reflected on it,discussed and tried to identify the essence of it. The philosophical discourse of justice is not defined unambiguously.
According to Rawl’s social justice is a process whereby major social institution distribute fundamental rights and duties and determine the division of advantage from social cooperation”. By major institutions, he means “political constitution and the principal economic and social arrangements”. He says that the legal protection of freedom of thought and liberty of conscience, competitive markets, private property in the means of production and the monogamous family are examples of major social institutions.
Social justice is an integral part of the concept of justice in a genetic sense. Justice is the genus of which social justice is one of its species. The former chief justice of India, Justice K. Subba Rao says that “social justice is one of the disciplines of justice and the discipline of justice relates to the society”
Every class of society is not equal. The biggest reason for nonequality is the deep inequality in society. Not only they are pervasive, but they affect men’s initial chances in life, yet they cannot possibly be justified on an appeal to the notion of merit or desert. Because of this inequality, the societies are divided between ‘haves’ and ‘have-nots’. A poor person is not able even to fulfill his basic necessities of life.
Concept of society and justice–
The concept of society and justice is that in which all person should be equal and there should fairness in justice and all person is equal in the eye of law. Justice is a concept only to other-directed human actions. The question of justice and injustice only arises when there are multiple individuals and some practical consideration regarding their situation and/or interactions with one another. Plato’s idea of a just and fair society includes public education, philosopher-king as rulers, and an aristocratic government. He thought that men and women, though generally different, should be treated equally. After the first world war on the Indian scene, two parallel revolutions- national and social was going on. The main feature of our freedom movement was not only to get Indian freedom but also to create and Indian society according to the dynamic concept of social revolution or social justice.
Women status in society
Women in India now participate fully in areas such as education, sports, politics, media, art, and culture, service sectors, science, and technology, etc. Indira Gandhi, who served as Prime Minister of India for an aggregate period of fifteen years, is the world’s longest-serving women Prime Minister. The constitution of India to all Indian women equality(Article 14), no discrimination by the state (Article15(1)), equality of opportunity(Article 16), and equal pay for work (39(d)).
As of 2011, the President of India, the Speaker of the Lok Sabha and the Leader of the opposition in the Lok Sabha were women. In the current situation, the Defence Minister is also a woman. However, women in India continue to face numerous problems such as crime, gender inequality.
Is There Any Justice in Present Era Related Women Right-
If we see that the current situation where women condition is worst. Taking swipe at religious customs and temple entry restriction is violating women’s constitutional rights. In every era in the history of social development, the question of women and the question of gender justice remained on board. The first leader of this country, Pandit Nehru said: “ You can tell the condition of a nation by looking at the status of its women”. The struggle for women’s equality began in India in the 20th century, as an offshoot of the against British colonialism.
“There is no chance of the welfare of the world unless the condition of women is improved. It is not possible for a bird to fly on one wing” where the thought of one of the greatest sons of India, Swami Vivekananda. The application of this phrase even today is indeed unfortunate. Gender inequality still survives in its grandeur through various sources, one of them being religion.
Constitutionality of Restriction of Women in Sacred Places-
The Indian Constitution is one of the longest Constitutions in the world because our forefathers framed it after a detailed study of the constitutions of several countries. India being such a diverse country, was influenced tremendously by the various religious practices of different religions. Some of them placed restrictions on women, some forbade certain social classes or castes from practicing particular professions, etc. Religious practices and customs significantly mold the social life of any nation. In order to protect the very basic human rights of the people in the background of such existing practices and customs, certain provisions were made in Part III of the Constitution, dealing with the fundamental rights of citizens and even non-citizens.
Gender inequality is one of the most typical embodiments of social inequality. It is even enforced by religious forces in the semblance of various customs, practices, traditions, or restrictions. To curb the same, the Bombay High Court, while considering the constitutional provisions held that no law prevents the entry of women in any place and conferred the duty upon the State governments to protect the rights of women.
Gender Equality: Legal Provisions
The essential right to equality has been guaranteed as a fundamental right under Article 14 of the Indian Constitution which states as follows:
“The State shall not deny to any person equality before the law and equal protection of the laws within the territory of India.”
The Indian Constitution embraces both the British doctrine of “equality before the law” and the American doctrine of “equal protection of the law”. Equal protection of law refers to the right to equal treatment in similar circumstances, both in the privileges conferred as well as in the liabilities imposed by law. However, Article 14 does permit reasonable classification for the purposes of legislation purported to bring about social equality in its true sense. Further, Article 15(1) embodies the following provisions:
“The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.”
The most common defense to justify the prevailing gender discrimination as regards the entry at religious places is in Articles 25 and 26 of our Constitution. The extent to which these Articles provide freedom to the authorities of such institutions is a matter adjudicated by the Courts, considering numerous nuances of the same. India being a secular nation, as was also proclaimed in the Preamble by the 42nd Amendment to the Constitution in the year 1976, already had safeguards in the garb of Articles 25-28. These provisions undoubtedly play a fundamental role in determining the validity of various practices undertaken in the name of religion.
Article 25 guarantees to all persons equally the right to freely profess, practice and propagate religion, subject to, public order, morality, and health. Thus Article 25 guarantees both:
1. Freedom of conscience and
2. Freedom to practice, profess and propagate the religion.
Further, what exactly constitutes religion and what all is included within the ambit of this Article was considered by the Supreme Court in Ratilal v. State of Bombay , wherein it was laid down that the word ‘religion’ is not only restricted to an opinion, doctrine or belief but also extends to the outward expressions/acts of the same i.e. any religious practices or performance of acts in pursuance of any religious belief. Therefore, Article 25 protects acts done in pursuance of religion including rituals and observances, ceremonies and modes of worship which are integral parts of religion. In Tilakayat Shri GovindaljiMaharaj v. the State of Rajasthan, the Supreme Court held that whether a practice is an integral part of the religion or not should be deduced by the Courts on the basis of the evidence available as to the conscience of the community and the tenets of its religion. However, not allowing women to enter any religious place infringes on her right to freedom of religion under Article 25.
The essential part of religions or religious practice was held to be decided by the courts by considering a particular religious doctrine and also includes the practices regarded by the community as a part of its religion. Moreover, it has also been held that the right to worship doesn’t extend to any and every place.
However, in Ismail Faruqui vs Union of India, the Court held that if a particular place had a “particular significance for that religion”, access to that place for the purposes of worship would be protected under Article 25. In another way, if any inner sanctum/tomb of a dargah does not bear special significance, every person, both women, and men would have the right to offer prayers at that place.
It was held by Justice Das Gupta in Sardar Saifuddin vs the State of Bombay, that the right to offer worship at a particular place can be enforceable in the court as a civil right, even if it does not have the status of a constitutional right under Article 25 of the Constitution. According to the learned judge,
“a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit.”
Further, Article 26 proceeds to guarantee the freedom to manage religious affairs by providing that every religious denomination or any section thereof has the right-
1. To establish and maintain institutions for religious and charitable purposes;
2. To manage its own affairs in matters of religion;
3. To own and acquire movable and immovable property; and
4. To administer such property in accordance with the law.
In S.P. Mittal v. Union of India the Supreme Court explained that the Indian Constitution protects the rights of minorities to practice, profess and propagate their religion, but whilst interpreting the scope and content of the guarantee contained in the Articles, the Court will always have to consider the real purpose for incorporating these provisions in Part III of the Constitution. The Supreme Court had denied any jurisdiction to any outside authority to interfere with the decisions of any religious denomination or organization as regards its autonomy to administer religious matters. It was also held that any law which empowers any outside authority with such rights of administration will be violative of the fundamental right guaranteed by Article 26.
The rights guaranteed under Section 26, as observed by the Supreme Court, are restricted to rituals, observances, ceremonies, and modes of worship. Therefore, if any particular rituals (such as denying women entry to any religious place), is protected under Article 25 and Article 26, then no suit shall lie. In other words, the right to exclude women from any particular place/ sanctum depends on whether excluding women from that place amounts to essential religious practice.
Essential Religious Practice
The right of any shrine/ dargah to discriminate on the basis of gender depends on whether the practice is an essential religious practice or not. Consequently, like in the Haji Ali Dargah case, denial of women’s right to enter the inner sanctum does not constitute essential religious practice, because it was not the customary practice. In fact, this practice started in the year 2012. Moreover, In Lakshmindra Swamiar, the Supreme Court noted that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion” and it is to be determined by the Courts.
In 1993, the Kerala High Court had considered public interest litigation against the restrictions imposed by the Sabarimala temple on the entry of women aged between 10-50. All the religious implications and grounds of these restrictions were verified by the Court to determine as to whether such a restriction was violative of Arts. 15, 25 & 26, and whether such restrictions were based on relevant grounds. The religious values and tenets were also considered equally. It was concluded that such restrictions were a part of a customary usage and based on some relevant religious principles, they were not in violation of Articles 15, 25 & 26 of the Constitution. Hence, the imposition of restrictions was upheld by the Court. However, the Supreme Court is currently hearing the matter and has already observed that the temple management does not have the right to ban women from entering the temple as it leads to the violation of a Constitutional principle.
Despite the existence of this evil practice since time immemorial, we still don’t have any Central Act or Rules which act as an antidote to this gender inequality. Though some of the states have State Acts or guidelines, these are yet to be implemented. The Maharashtra Hindu Place of Worship (Entry Authorisation) Act, 1956 stipulated six months of jail for any person who prohibits a person from entering a temple, but the State Government is unable to implement the same in 60 years. Similarly, Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 provides that every Hindu place of worship shall be open to all sections and classes of Hindus, and they should not be prevented from entry or performing any religious services. But the section contains a proviso that in the case of a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the rights of that religious denomination or section to manage its own affairs in the matters of religion.
Article 5(a) of the International Bill of Rights for Women i.e. CEDAW (Convention on Elimination of All Forms of Discrimination Against Women, 1979) provides that:
“State Parties shall take all appropriate measures to modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles of men and women.”
As already set out in the Universal Declaration of Human Rights (UDHR), equality and non-discrimination are foundational principles of the international human rights legal framework. The human rights legal framework requires states not only to refrain from discrimination but also obliges them to take appropriate measures to end discrimination by state and promote equality. Discrimination in law or in practice may prevent the realization and enjoyment of other rights. This requires states to establish equality under the law and address policies, programs, or even stereotypes that create or perpetuate discrimination.
To sum up, various provisions are purportedly made for abolishing gender inequality in all its forms, however, actual enforcement of such egalitarian principles comes into conflict with provisions for freedom of religion, and religious practices and India has recently witnessed such conflicts.
It is indeed ironic that a country is one of the oldest civilizations and the largest democracy in the world, ranked 130th in the Gender Inequality Index among 188 countries across the globe. Women in India are still struggling to get equal access to religious places, despite the fact that they have played a major role in the development of the country. Gender discrimination leads to cultural, social, economic and educational differences which impede the growth of the country. To overcome these evils, women should be empowered by ensuring their right to equality.
The reform is paralyzed by the lack of political will to review customs or personal laws. This imposes a greater responsibility on the courts to apply rigorous standards of judicial scrutiny for the removal of injustice against women. The duty lies with the Supreme Court to determine that the infringement of women’s right to freedom of religion under Art. 25 cannot be allowed by protecting the similar freedom of religious organizations. Freedom of religion and freedom to manage religious affairs needs to be harmonized with the right to equality. This might make India one of the few nations to enforce gender equality in all its forms, without giving in to the forces of religion. Although some of the recent judgments from the Courts are in favor of the equal status of women in religious places, the problem lies in its implementation. So now all eyes are on the Supreme Court judgment in the Sabarimala case, which may indeed change the face of gender equality in worshipping places in India.
The list of legislation and judicial decisions may go on; however, the real change will come only when the attitude of people changes and the management at religious places will treat men and women equally. In fact, in some cases, not only men but women are responsible for gender discrimination. They need to change the mindset developed due to this exploitative system. What is necessary is not just freedom of action, but also freedom of thought in women’s ability and willingness to question the unjust rituals or practices. The commitment to gender equality and non-discrimination can be fulfilled not only through the legislature but also by the active participation of the people and through multilateral organizations. The mere fact that “Women hold up half the sky” – does not appear to give them a position of dignity and equality, unless we start somewhere to make Gender Equality more than a slogan.