Authored By: Rimjhim Pandey
VSSD PG College Kanpur
ABSTRACT
The Constitution of India guarantees both gender equality and religious freedom through Articles 14, 15, and 21. However, these guarantees frequently come into tension with religious practices that infringe upon women’s inherent rights, causing gender equality to be stifled under the weight of religious dominance. This article critically examines the constitutional conflict between Articles 14, 15, and 21 on one hand, and Article 25 on the other. By analysing landmark Supreme Court judgments, it argues that constitutional morality must prevail over discriminatory religious practices. The article also critiques the “essential religious practices” doctrine and highlights the need for a more coherent judicial approach.
INTRODUCTION
The Constitution of India is founded on the ideals of liberty, equality, and fraternity, with gender equality and human dignity embedded in its core values. Yet India’s diverse and complex social fabric has given rise to persistent legal and social tensions. One such conflict arises when religious practices, justified under Article 25, contravene the fundamental rights of women. This tension raises a critical constitutional question: whether religious autonomy can be sustained when it perpetuates gender-based discrimination.
As a pluralistic society, India has historically accorded significant deference to religious sentiment, sometimes at the expense of women’s rights. The judiciary, therefore, plays a pivotal role in bridging the divide between religious freedom and gender justice — navigating a fine line between respecting religious diversity and upholding constitutional mandates. This article proceeds in four parts: first, mapping the constitutional framework; second, examining the Supreme Court’s evolving approach; third, critiquing the essential religious practices doctrine; and fourth, addressing the ambiguities that remain unresolved.
THE CONSTITUTIONAL FRAMEWORK AND THE LIMITS OF RELIGIOUS FREEDOM
The cornerstone of India’s constitutional ethos is Article 14, which guarantees equality before the law and equal protection under the law.1 Gender equality is further reinforced by Article 15(1), which expressly prohibits discrimination on the ground of sex.2 Through sustained judicial interpretation, Article 21 has been expanded to encompass the rights to privacy, personal autonomy, and human dignity.3
Article 25 of the Indian Constitution guarantees the freedom of conscience and the right to freely profess, practise, and propagate religion.4 This right, however, is not absolute — it is expressly subject to public order, morality, and health, as well as to the other provisions of Part III of the Constitution. This conditionality establishes a constitutional hierarchy wherein religious freedom cannot override the principles of equality and dignity.5 The overarching purpose of these liberal provisions is to promote humanist values rather than to constitutionally entrench practices that restrict individual freedom.
JUDICIAL APPROACH: CONSTITUTIONAL MORALITY AND THE TRANSFORMATION OF PATRIARCHAL NORMS
The Supreme Court has increasingly invoked the doctrine of constitutional morality when addressing conflicts between religious freedom and gender rights. These decisions signal a decisive shift away from religious-centric deference toward a framework that affirmatively values gender equality.
In Indian Young Lawyers Association v. State of Kerala,6 the Court struck down the exclusion of women aged approximately ten to fifty from the Sabarimala temple — a practice justified by reference to the biological characteristics of menstruating women. Justice Chandrachud’s concurring opinion characterised the practice as a form of systemic exclusion akin to untouchability, thereby extending the interpretive scope of Article 17 to encompass caste-like exclusions grounded in gender.7
Similarly, in the landmark decision of Shayara Bano v. Union of India,8 the Court struck down the practice of instantaneous triple talaq as a unilateral male prerogative to divorce. The majority held that this practice violated the basic principles of Article 14 and was therefore unconstitutional. The decision was significant in establishing that personal laws are not immune from constitutional scrutiny — a citizen may invoke the general law to seek justice against discriminatory customary practices. This judgment marked a meaningful shift in the Court’s willingness to subject personal laws to constitutional review.
In Joseph Shine v. Union of India,9 the Court struck down the offence of adultery, which had long treated women as the property of their husbands rather than as autonomous individuals. The judgment explicitly recognised women as rights-bearing subjects rather than objects of patriarchal control, delivering a direct challenge to deep-rooted patriarchal norms embedded in Indian law. In a related vein, Navtej Singh Johar v. Union of India10 decriminalised consensual same-sex relations under Section 377 of the Indian Penal Code, affirming that constitutional morality — not social or religious morality — must serve as the lodestar of constitutional interpretation, making space for a more expansive understanding of gender equality and personal liberty.
THE ESSENTIAL RELIGIOUS PRACTICES DOCTRINE: A CRITICAL ANALYSIS
The “essential religious practices” (ERP) test was first articulated in Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt,11 to determine whether a particular practice is fundamental to a religion and thereby entitled to constitutional protection. The doctrine has, however, attracted sustained criticism.
At its core, the ERP test asks courts to resolve theological and scriptural questions that lie well beyond their institutional competence, blurring the boundary between legal adjudication and religious authority.12 The absence of a consistent standard for what qualifies as “essential” has produced unpredictability, with courts oscillating between judicial overreach and excessive deference. More troublingly, the doctrine risks lending constitutional legitimacy to discriminatory practices merely because they are deemed religiously essential, thereby undermining the transformative promise of the Constitution.13 The continuing reliance on ad hoc balancing has resulted in doctrinal ambiguity, leaving the conflict between women’s rights and religious autonomy largely unresolved.
CONTINUING AMBIGUITIES AND JUDICIAL HESITATION
Despite a series of progressive judgments, the Supreme Court’s approach has not been entirely consistent. The review proceedings in Indian Young Lawyers Association v. State of Kerala14 illustrate this judicial hesitation. By referring the broader questions concerning the interplay between religious freedom and gender justice to a larger constitutional bench, the Court signalled the need for a more comprehensive doctrinal framework, while simultaneously deferring resolution of the conflict. This development underscores the unresolved nature of the tension and the difficulty of reconciling competing constitutional values.
A particular concern is that the ERP doctrine diverts judicial attention from the central constitutional question — whether a practice violates fundamental rights — and redirects it toward the question of religious significance.15 So long as the doctrine retains its current form, it risks becoming a vehicle for entrenching discrimination rather than dismantling it.
CONCLUSION
The tension between women’s rights and religious autonomy represents one of the most complex constitutional dilemmas in contemporary India. While the judiciary has made substantial progress in affirming the primacy of equality and dignity, inconsistent doctrine and social resistance continue to obstruct a comprehensive resolution. The Constitution, as a transformative document, envisions a society in which individual rights are paramount. Religious practices must therefore evolve in conformity with constitutional values, rather than resist them. The ultimate resolution of this conflict lies in reaffirming that equality is not a negotiable ideal but a fundamental constitutional guarantee — one that no religious claim can displace.
REFERENCE(S):
1 INDIA CONST. art. 14.
2 INDIA CONST. art. 15(1).
3 INDIA CONST. art. 21.
4 INDIA CONST. art. 25.
5 Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
6 Indian Young Lawyers Association v. State of Kerala, (2019) 11 SCC 1.
7 Id., Chandrachud, J., concurring.
8 Shayara Bano v. Union of India, (2017) 9 SCC 1.
9 Joseph Shine v. Union of India, (2019) 3 SCC 39.
10 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1.
11 Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282.
12 Gautam Bhatia, The Transformative Constitution (HarperCollins, 2019).
13 Marc Galanter, “Hinduism, Secularism, and the Indian Judiciary” (1971).
14 Flavia Agnes, Law and Gender Inequality (Oxford University Press, 1999).
15 Indian Young Lawyers Association v. State of Kerala (Review Petition), (2020) 2 SCC 1.
16 Upendra Baxi, The Future of Human Rights (Oxford University Press, 2002).
