Chapter 3

FREEDOM OF RELIGION AND GENDER EQUALITY:

INTERNATIONAL LAW PERSPECTIVE

A General Perspective

Since inception of UDHR, hardly any religious freedoms46 got itself

acknowledged. The United Nations47 through its various obligatory and
binding instruments like Article 2 of the Universal Declaration of Human
Rights, 1948 gives every person the right to equality free from any kind of
discrimination/ distinction based on race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. 48 UDHR has a larger contribution in giving sanctity to both
individual and group rights to all men and women of full age, in particular
giving primacy to family as an institution and the incidental human right,
namely marriage and dissolution of marriage 49 . In addition to rights

46
Article 2 of Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief, 1981 states that:
1. No one shall be subject to discrimination by any State, institution, group of persons, or
person on the grounds of religion or belief.
2. For the purposes of the present Declaration, the expression "intolerance and discrimination
based on religion or belief" means any distinction, exclusion, restriction or preference based on
religion or belief and having as its purpose or as its effect nullification or impairment of the
recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal
basis.
47
https://treaties.un.org/doc/publication/ctc/uncharter.pdf
48
See Article 2 of UDHR, 1948, reads as ―Everyone is entitled to all the rights and freedoms
set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other status.‖
49
Article 16,UDHR: 1. Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family. They are entitled to equal
rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection
by society and the State

33
conferred on individual and groups under article 16 of UDHR, Article18
further extends the concept of community rights, be it be public or private,
resulting in manifestation of its religion or belief in teaching, practice,
worship and observance. The idea seems clearly to adhere to the right to
freedom of thought, conscience and religion, to the extent of freedom of
changing his religion or belief50. Furthermore on the positive outlook, Part
III of the Indian Constitution51 read with Article 26 of UDHR tries to
balance the cultural and education rights of citizens vis-à-vis those of
minorities acknowledging education as the base of advancement of social
cohesiveness per se52. The United Nations Charter has given birth to the

50
Article 18, UDHR: Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and freedom, either alone or in
community with others and in public or private, to manifest his religion or belief in teaching,
practice, worship and observance
51
Article 29 of Indian Constitution: Protection of interests of minorities
(1) Any section of the citizens residing in the territory of India or any part thereof having a
distinct language, script or culture of its own shall have the right to conserve the same
(2) No citizen shall be denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion, race, caste, language or
any of them
Article 30 of the Indian Constitution: Right of minorities to establish and administer
educational institutions
(1) All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice
(1A) In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause ( 1 ), the
State shall ensure that the amount fixed by or determined under such law for the acquisition of
such property is such as would not restrict or abrogate the right guaranteed under that clause
(2) The state shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether
based on religion or language
52
Article 26, UDHR: 1. Everyone has the right to education. Education shall be free, at least in
the elementary and fundamental stages. Elementary education shall be compulsory. Technical
and professional education shall be made generally available and higher education shall be
equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the
strengthening of respect for human rights and fundamental freedoms. It shall promote
understanding, tolerance and friendship among all nations, racial or religious groups, and shall
further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.

34
several international conventions, covenants, and resolutions which
provide rights to an individual and, at the same time, to the community at
large.

1. International Covenant on Civil and Political Rights, 1966

The modern international law after its partial success in adhering the
international peace and security through UDHR, the United Nations took
an initiative of making States as State parties in protecting civil, political,
economic, social and cultural rights to individuals, groups and
communities53. The very objective of ICCPR was to protect the civil and
political rights of every human being and also ensuring the right to
self-determination. The ICCPR attempted to respect the freedom of
religion, conscience, and parental thought and conscience in part through
Article 18, and it took care to ensure that "no one should be subjected to
any kind of coercion which would impair his freedom to have or to adopt
religion or belief of his choice‖54 To give a legal effect, Article 46 of
ICCPR empowers to constitute various specialized agencies for the
purpose of defining responsibilities within the covenant.55 Further Article

53
Refer International Covenant on Civil and Political Rights, 1966 and International Covenant
on Economic, Social and Cultural Rights, 1966.
54
Article 18, ICCPR: 1. Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or to adopt a religion or belief of his choice,
and freedom, either individually or in community with others and in public or private, to
manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a
religion or belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents
and, when applicable, legal guardians to ensure the religious and moral education of their
children in conformity with their own convictions.
a) 55 Article 46 of ICCPR:
Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter
of the United Nations and of the constitutions of the specialized agencies which define the

35
1356, International Convention on Economic, Social and Cultural Rights
(ICESCR), 1996 tries to ensure the religious and moral education of the
children in conformity with their own convictions.

respective responsibilities of the various organs of the United Nations and of the specialized
agencies in regard to the matters dealt with in the present Covenant.
b) Article 47 of ICCPR:
Nothing in the present Covenant shall be interpreted as impairing the inherent right of all
peoples to enjoy and utilize fully and freely their natural wealth and resources.
56
Article 13, ICESCR,1996
1. The States Parties to the present Covenant recognize the right of everyone to education. They
agree that education shall be directed to the full development of the human personality and the
sense of its dignity, and shall strengthen the respect for human rights and fundamental
freedoms. They further agree that education shall enable all persons to participate effectively in
a free society, promote understanding, tolerance and friendship among all nations and all racial,
ethnic or religious groups, and further the activities of the United Nations for the maintenance
of peace.
2. The States Parties to the present Covenant recognize that, with a view to achieving the full
realization of this right:
(a) Primary education shall be compulsory and available free to all;
(b) Secondary education in its different forms, including technical and vocational secondary
education, shall be made generally available and accessible to all by every appropriate means,
and in particular by the progressive introduction of free education;
(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every
appropriate means, and in particular by the progressive introduction of free education;
(d) Fundamental education shall be encouraged or intensified as far as possible for those
persons who have not received or completed the whole period of their primary education;
(e) The development of a system of schools at all levels shall be actively pursued, an adequate
fellowship system shall be established, and the material conditions of teaching staff shall be
continuously improved.
3. The States Parties to the present Covenant undertake to have respect for the liberty of parents
and, when applicable, legal guardians to choose for their children schools, other than those
established by the public authorities, which conform to such minimum educational standards as
may be laid down or approved by the State and to ensure the religious and moral education of
their children in conformity with their own convictions.
4. No part of this article shall be construed so as to interfere with the liberty of individuals and
bodies to establish and direct educational institutions, subject always to the observance of the
principles set forth in paragraph I of this article and to the requirement that the education given
in such institutions shall conform to such minimum standards as may be laid down by the State.

36
 2. Convention on the Elimination of All forms of Discrimination
against Women(CEDAW), 1979

The objective of convening CEDAW was to sensitize the States to

prevent all or any form of discrimination against women thereby
promoting the principle of equality amongst men and women, to adopt
appropriate measures and abolish discriminatory laws. The convention
makes an attempt to define the term discrimination in Article 1 of the
Convention. 57 The present convention tries to ensure for the full
enjoyment of human rights and fundamental freedoms of women
compatible with men in political, social, economic and cultural fields.58
The convention has been sensitive in realizing the particular rights of
women by adhering the customary practices by promoting and ensuring
family education for proper understanding of maternity as a social function
and common responsibility in upbringing the family.59 As a matter of fact,
the Supreme Court of India took cognizance of CEDAW in Vishaka v.
State of Rajasthan 60 , a leading judgment whereby it passed certain
guidelines in prevention of sexual harassment of women at workplace. The
judgment owes its relevancy by signifying gender equality, right to work
with human dignity and embracing rights of women at large by reading
article 14, 15, 19(1) (g) and 21 of the constitution together.61 It is pertinent

57
For the purposes of the present Convention, the term "discrimination against women"
shall mean any distinction, exclusion or restriction made on the basis of sex which has the
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by
women, irrespective of their marital status, on a basis of equality of men and women, of
human rights and fundamental freedoms in the political, economic, social, cultural, civil or
any other field.
58
Article 3, CEDAW, 1979.
59
Ibid., Article 5.
60
AIR 1997 SC 3011
61
The court defined sexual harassment as including such unwelcome sexually determined
behaviour (whether directly or by implication) like physical contact and advances, a demand or
request for sexual favours, sexually coloured remarks, showing pornography, or any other
unwelcome physical verbal or non-verbal conduct of sexual nature.

37
to note that CEDAW directly tries to sensitize gender equality through its
article 16 in matters relating to marriage and family relations.62

3. Declaration on the Elimination of All Forms of Intolerance and

of Discrimination Based on Religion or Belief, 1981

Power struggles between the state and the church have been ongoing
since the beginning of the industrial revolution and have persisted through
the World Wars. The Nations came to the conclusion that religion had
contributed to strife in newly emerging contemporary democracies.
Additionally, the ideological divide between the capitalist and communist
blocks made it difficult to reach an agreement on gender equality based on
religion. Despite the fact that a sizable portion of society continues to
believe in a patriarchal society in which men have traditionally had more
authority and responsibility than women, the globe hasn't quite come

62
Article 16, CEDAW:
1. States Parties shall take all appropriate measures to eliminate discrimination against women
in all matters relating to marriage and family relations and in particular shall ensure, on a basis
of equality of men and women: (a) The same right to enter into marriage;
(b) The same right freely to choose a spouse and to enter into marriage only with their free and
full consent;
(c) The same rights and responsibilities during marriage and at its dissolution;
(d) The same rights and responsibilities as parents, irrespective of their marital status, in matters
relating to their children; in all cases the interests of the children shall be paramount;
(e) The same rights to decide freely and responsibly on the number and spacing of their children
and to have access to the information, education and means to enable them to exercise these
rights;
(f) The same rights and responsibilities with regard to guardianship, wardship, trusteeship and
adoption of children, or similar institutions where these concepts exist in national legislation; in
all cases the interests of the children shall be paramount;
(g) The same personal rights as husband and wife, including the right to choose a family name,
a profession and an occupation;
(h) The same rights for both spouses in respect of the ownership, acquisition, management,
administration, enjoyment and disposition of property, whether free of charge or for a valuable
consideration.
2. The betrothal and the marriage of a child shall have no legal effect, and all necessary action,
including legislation, shall be taken to specify a minimum age for marriage and to make the
registration of marriages in an official registry compulsory.

38
around to the idea that religion is also one of the primary causes of
discrimination against men and women.

After the ICCPR and ICESCR were ratified in the year 1976, the
international community attempted to create the 1981 Declaration on the
Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief for the first time. Articles 5 and 6 in particular have
extensively dealt with eradicating many forms of intolerance and
discrimination based on religion or belief. This international instrument
has extensively covered many elements of gender equality on the grounds
of religion, sex, etc63. The manifestations that fall under the umbrella of the
right to freedom of thought, conscience, religion, or belief are listed in
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Article 5- 1. The parents or, in some cases, the kid's legal guardians have the right to arrange
the family's life in line with their religion or other beliefs and with an eye towards the moral
upbringing they believe the child should receive. 2. Every child has the right to access
education about religion or belief in accordance with the wishes of his parents or, as the case
may be, legal guardians. The best interests of the child are to be the guiding principle, and no
child shall be forced to receive teaching on religion or belief against the wishes of his parents or
legal guardians. 3. Discrimination based on a person's religion or philosophical beliefs is
prohibited. He must be raised with the knowledge that his time and talents should be invested in
serving his fellow humans, and in an environment that promotes tolerance, understanding,
friendship among peoples, peace, and worldwide brotherhood. 4. The expressed wishes of a
child or any other evidence of their wishes in the subject of religion or belief must be taken into
consideration when a kid is not in the custody of either his parents or legal guardians, with the
child's best interests serving as the guiding principle5. Practices of a religion or belief in which
a child is brought up must not be injurious to his physical or mental health or to his full
development, taking into account article 1, paragraph 3, of the present Declaration.
According to Article 1 of the current Declaration and subject to its restrictions, the following
liberties are covered by the right to freedom of thought, conscience, religion, or belief: Art. 5 To
(a) establish and maintain places of worship or gathering associated with a religion or belief; (b)
establish and maintain appropriate charitable or humanitarian institutions; (c) make, obtain, and
use appropriately the necessary items and materials related to the rites or customs of a religion
or belief; (d) write, issue, and disseminate pertinent publications in these areas; and (e) impart
religious or philosophical knowledge in appropriate settings. (h) To observe holidays, rest days,
and religious rituals in conformity with the law.

39
Article 6 in a non-exhaustive list. The 1981 Declaration insists once more
on a wide application. The language used here includes the freedoms to (a)
maintain places of worship or assembly, (b) establish charitable or
humanitarian institutions, (c) make, obtain, and use materials related to
rites or customs, (d) write, issue, and distribute publications, (e) teach a
religion or belief in places that are appropriate, (f) solicit and receive
voluntary financial and other contributions, and (g) train, appoint, elect, or
designate by succession appropriate leaders; The insistence on a broad
view of manifestations appears to be quite pertinent given the fact that
clauses relating to freedom of religion or belief in many national
constitutions primarily focus on the element of "worship".

4. The Convention on the Rights of the Child, 1990

The Geneva Declaration on the Rights of the Child, which was

adopted by the League of Nations in 1924, marked the beginning of
contemporary history's recognition of children's rights. Additionally, it
introduced the idea of a children's fund. UDHR was enacted in 1948, the
UN General Assembly convened in 1949, a proclamation on the protection
of women and children in emergencies and armed conflict was adopted in
1974, and as a result, the UN General Assembly proclaimed 1979 as the
International Year of the Child. All members, with the exception of the
United States, have ratified the conventions on children's rights. Article 14
of the CRC stipulates that:

1. States Parties shall uphold a child's right to freedom of expression,

conscience, and religion.

2. The rights and responsibilities of parents and, if necessary, legal

guardians to guide their children in exercising their rights in a manner that

40
is compatible with their maturing capacities shall be respected by States
Parties.

3. The only legal limitations on one's ability to publicly express their

religious or philosophical beliefs are those imposed by laws that are
necessary to protect public morals, safety, health, or order as well as other
people's fundamental rights and freedoms.64

OTHER INTERNATIONAL INSTRUMENTS

5. The Marrakesh Declaration on the Rights of Religious Minorities,

2016

The summit's conclusion was the Marrakesh Declaration on the

Rights of Religious Minorities in Communities with a Predominantly
Muslim Majority. The statement was based on the Charter of Medina,
which was issued by the Prophet Muhammad over 1400 years ago in an
effort to mediate peace between Medina's warring clans. Similar to the
Media Charter, the Marrakesh Declaration promotes interfaith harmony
and religious freedom. Cooperation "must go beyond mutual tolerance and
respect, to fully protecting the rights and liberties of all religious groups in
a civilised manner that eschews coercion, bias, and arrogance," the
declaration continues.‖65

In the framework of international human rights, Muslim leaders

have never before released a declaration that so vehemently condemns
persecution and discrimination based on religion and advocates for the
protection of the rights of religious minorities. Many people believe that
human rights are simply Western concepts that depend on secularism and

64
For more details , see:
https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
65
https://blogs.lse.ac.uk/religionglobalsociety/2017/05/the-marrakesh-declaration-a- muslim-
call-for-protection-of-religious-minorities-or-freedom-of-religion/

41
individualism, and as such, they are of limited use and significance in a
Muslim context. Human rights are a strange and rather unimportant subject
for many Muslim institutions, communities, and people. The Marrakesh
Declaration establishes a link between essential Muslim beliefs and
practises and human rights, enhancing and expanding their legitimacy.
Their resonance, acceptance, and support grow as a result.

The declaration marks a significant departure from the dominant

traditions of Islam; while these traditions may contain protections to
guarantee that "different categories of people - namely, Muslims or
Non-Muslims (men or women) - are treated equally among themselves,
there is no affirmation of equal treatment across these categories." The
declaration requests that Muslim scholars and legal professionals develop
a definition of citizenship that is consistent with Islamic principles of
equality, inclusion, and plurality. It takes its cues from the Charter of
Medina, which the Prophet Muhammad penned in 622. It also encourages
decision-makers to take the necessary political and legal steps to forge a
binding agreement between its citizens. It also urges Muslim educational
institutions and authorities to evaluate curriculums and eliminate anything
that promotes extremism and violence.

The Human Rights Committee added a further restriction in General

Comment No. 22 that ―The freedom from coercion to have or to adopt a
religion or belief and the liberty of parents and guardians to ensure
religious and moral education cannot be restricted.‖66

66
Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought,
Conscience and Religion (Art. 18), 48th session, UN Doc CCPR/C/21/Rev.1/Add.4 (30 July
1993).

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 6. Declaration on the Elimination of All Forms of Racial
Discrimination, 1981

In accordance with Article 3 of the 1981 Declaration,

"discrimination against human beings on the basis of religion or belief
constitutes an affront to human dignity and a disavowal of the principles of
the Charter of the United Nations, and shall be condemned as a violation of
the human rights and fundamental freedoms proclaimed in the UDHR."
This idea, which links the need for non-discrimination with the right
respect for each person's human dignity, is quite potent. The 1981
Declaration also refers to the articulation of these freedoms in the ICCPR
and ICESCR, which was manifestly impossible for the 1963 Declaration
on the Elimination of All Forms of Racial Discrimination before the two
Covenants' ultimate approval in 1966.

Article 4 of the 1981 Declaration requests all States to ―take

effective measures to prevent and eliminate discrimination on the basis of
religion or belief‖ so that all spheres of civil, economic, political, social,
and cultural life recognise, allow for the exercise of, and guarantee human
rights and fundamental freedoms. This is crucial information to clarify,
especially in light of ongoing initiatives to impose physical limitations on
the exercise of the right to freedom of religion or belief, such as by
restricting this right to the ―private sphere‖ or banning certain businesses
or public institutions from allowing religious expression. In his thematic
report on discrimination in the workplace (A/69/261) the Special
Rapporteur on Freedom of Religion or Belief argued that the provision of
reasonable accommodations should be understood as part of the States'
legal responsibility, including with regard to ensuring freedom of religion
or belief. He accomplished this by arguing in favour of his position using
the Declaration's inclusive phrase ("in all fields...").

43
 7. Challenges and Limitations

Religious beliefs and gender equality are two significant topics that
touch on international law. Although international legal systems seek to
advance and safeguard both gender equality and the right to practise one's
religion, doing so is fraught with difficulties. The points of reference are
hereinafter referred:

1) Conflict between cultural and religious norms: International law

operates in a complex global framework with widely divergent
cultural and religious norms. There may be difficulties between
individual rights and communal or religious practises when certain
religious beliefs and practises are in opposition to the principles of
gender equality. It can be difficult to strike a balance between these
conflicting interests.

2) Interpretation and application: Because international law documents

frequently set forth general principles and directives, there is room
for interpretation and a wide range of application by different
governments. This makes it challenging to attain universal standards
because different jurisdictions may take different approaches to
issues like religious freedom and gender equality.

3) Resistance and non-compliance: Citing cultural, religious, or

traditional considerations, certain states may oppose adopting or
putting into practise international principles relating to gender
equality. This could impede efforts to advance gender equality and
religious freedom as well as the efficient implementation of
international law.

4) Stereotyping and discrimination: Harmful stereotypes and prejudice

based on gender still exist on a worldwide scale. These prejudices
may be strengthened or justified on the basis of religion or culture,
44
 and they can prevent gender equality from being fully realised.
Legal actions alone won't be sufficient to end deeply rooted
discrimination; cultural attitudes and customs must also shift.

5) Limited enforcement mechanisms: International law relies mostly

on the desire of governments to comply because it lacks a
centralised enforcement agency. States may not prioritise or fully
handle gender equality and religious freedom issues without strong
monitoring and enforcement systems.

6) When ratifying international treaties, some governments may make

reservations or derogations, which may restrict the applicability and
efficacy of these documents. Due to the frequent use of reservations
to excuse nations from following specific requirements due to
religious or cultural considerations, gender equality norms may be
jeopardised.

7) Intersectionality with many forms of discrimination: Racial, ethnic,

socioeconomic, and sexual orientation discrimination all intersect
with gender inequity. International law finds it difficult to
thoroughly handle these various forms of discrimination, which
places restrictions on how it may solve the difficult problems that
people experience when these issues interact.

Despite these obstacles and constraints, international law is

extremely important in establishing the rules, norms, and guidelines for
advancing gender equality and safeguarding religious freedom. To solve
these issues and improve human rights all across the world, continuous
efforts must be made to foster communication, increase awareness, and
enhance legal systems.

45