Open Access Research Article
CULTURAL RIGHTS: WHY IT IS IMPORTANT FOR WOMEN?
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Article Details
CULTURAL
RIGHTS: WHY IT IS IMPORTANT FOR WOMEN?
AUTHORED BY - MANJARI VERMA &
DALLENDRA SHEKHAR
ABSTRACT
Amidst the recent legal victories and
growing public support for eradication of practices pertaining to unequal
treatment of women, numerous fundamentalist groups challenged the same on the
basis of rights to religious guaranteed under the Constitution of India. The
Articles explores the possibility that exist for feminist understanding of Part
III of the Constitution of India in the light of judicial misinterpretation
that has taken place so far. Among other issues, we examine the feminist
critique of such value and gender-neutral provisions as they have been
interpreted in various judgments. We argue that if these perspectives are
understood through a feminist lens, then the outcome would be significantly
different. Cultural stigma by creating a divide between the private and public
spheres of action. These include stigmas that constrain the practical utility
of the existing legal tools. By accounting for these conflicting legal
provisions, this Article provides a comprehensive roadmap of the issues and
challenges likely to emerge along the path towards an equal and free society
within the framework of Constitution of India.
Keywords:
Constitution of India, Feminism, Precedents, Fundamental Right,
Patriarchy.
INTRODUCTION
CULTURAL RIGHTS
Cultural rights refer to a claimed
entitlement on the part of identity groups — typically based on religion,
ethnicity, language, or nationality — to be able to express and maintain their
traditions or practices. Such an entitlement usually implies some form of
political or legal recognition. Cultural rights are commonly understood as a
universal human right, one that recognizes the fundamental importance of a
sense of cultural identity, membership, and shared values to human well-being
and flourishing. Cultural rights are an essential part of human rights that
recognize the importance of cultural diversity and promote the expression and
preservation of different cultures. These rights are grounded in the principle
of cultural freedom, which asserts that individuals and communities have the
right to freely practice and develop their cultural traditions, and that this
right should be protected by law and upheld by governments. One of the key
aspects of cultural rights is the right to participate in cultural life. This
includes the right to access and participate in cultural activities and
resources, such as museums, cultural festivals, and other cultural events. This
right also includes the freedom to express oneself through cultural practices,
such as music, dance, and other forms of artistic expression. Another important
aspect of cultural rights is the right to enjoy and access cultural heritage.
Cultural heritage includes tangible and intangible aspects of culture, such as
historical monuments, artifacts, and traditional knowledge. The right to enjoy
and access cultural heritage is important because it allows individuals and
communities to connect with their cultural roots and history, and to preserve
and transmit cultural traditions to future generations. The right to freedom of
artistic expression is also an important aspect of cultural rights. This right
recognizes the importance of artistic expression as a form of cultural
expression, and protects the freedom of artists to express themselves without
censorship or other forms of repression. This right is particularly important
in societies where artists and other cultural practitioners may face
persecution or repression for expressing their views or challenging dominant
cultural norms. Finally, the right to use and develop one's own language and
cultural practices is an important cultural right. This right recognizes the
importance of language as a fundamental aspect of cultural identity, and the
need to protect and preserve minority and indigenous languages. The right to
use and develop one's own language and cultural practices is also important for
promoting cultural diversity and preventing the erosion of traditional cultures
and practices.
The protection of cultural rights is
important for several reasons:
First, cultural rights help to
promote and preserve cultural diversity. Cultural diversity is a valuable asset
that enriches societies and promotes social cohesion, tolerance, and
understanding. By protecting cultural rights, societies can ensure that all
cultures are valued and respected, and that no culture is marginalized or
excluded.
Second, cultural rights are essential
for the promotion of individual and collective identity. Cultural practices,
traditions, and languages are an important part of an individual's sense of
self and community, and the protection of cultural rights ensures that
individuals and communities are free to express and develop their identities
without fear of discrimination or repression.
Third, the protection of cultural
rights is important for the promotion of social and economic development.
Cultural practices, traditions, and languages are often closely connected to
local economies, and the preservation and promotion of these practices can
contribute to sustainable development and poverty reduction.
In India, cultural rights refer to
the rights of individuals and communities to practice, preserve, and promote
their cultural traditions and heritage. These rights are protected under the Indian
Constitution and international human rights instruments, which recognize the
importance of cultural diversity and the need to protect the cultural rights of
all individuals and communities.
India is a diverse country with a
rich cultural heritage, and cultural rights are particularly important for
minority and indigenous communities who are often at risk of losing their
cultural identity due to discrimination and marginalization. Therefore, it is
essential to protect and promote cultural diversity and to respect the cultural
rights of all individuals and communities in India. One of the main cultural
rights in India is the right to freedom of religion, which is enshrined in the
Constitution.[1]The Constitution of India guarantees the
right to freedom of religion to not only individuals but also religious groups
in India. This is enshrined in Articles 25 to 28. This
right allows individuals to practice and propagate their religion of choice
without any interference from the state or society. Additionally, the
Constitution recognizes the rights of minorities to establish and administer
educational institutions of their choice, which allows them to preserve and
promote their cultural traditions.
In [2]Bijoe Emmanuel v. State of Kerala three students of Jehovah’s sect who only
believed and worshipped Jehovah were expelled by the headmistress of their
school when refused to sing the National Anthem during the school’s morning
assembly. According to these students singing the National Anthem was against
their religious faith and was disregarded by their religious tenants. They
remained silent but did not participate in singing due to their honest
belief. The Supreme Court held that the action of expelling these
students was in violation of their right to freedom of religion (under Art.
25(1)) and right to speech and expression (under Art. 19(1)(a). It was stated by the court that there is no provision of law which compels or
obliged anyone to sing the National Anthem and it is not disrespectful if not
sung.
Another cultural right in India is
the right to language, which is also protected by
the Constitution. India is home to numerous languages, and the Constitution
recognizes the right of individuals to use and promote their mother tongue.
Additionally, the government has established various institutions to promote
language education and preserve endangered languages.
The right to cultural expression and
participation is another important cultural right in India. This right allows
individuals to freely express their cultural identity and participate in
cultural activities, including traditional arts and crafts, music, and dance Bijoe Emmanuel v. State of Kerala. The government has established various institutions and
programs to promote cultural activities and to support traditional artists and
artisans.
However, despite these constitutional
protections, cultural rights are often violated in India, particularly in
relation to minority and indigenous communities. These communities often face
discrimination and marginalization, and their cultural practices and traditions
are frequently threatened by dominant cultural norms and practices. To address
these challenges, it is important for the Indian government to take concrete
steps to protect and promote cultural rights. This includes adopting laws and
policies that protect cultural diversity and promote cultural expression and
participation, particularly for marginalized and minority communities. It also
involves investing in the preservation and promotion of India's diverse
cultural heritage, including traditional art forms, languages, and customs. Civil
society organizations also have an important role to play in promoting and
protecting cultural rights in India. These organizations can advocate for the
rights of marginalized communities, provide cultural education and awareness,
and work to preserve and promote traditional cultural practices and heritage.
In conclusion, cultural rights are an
important aspect of human rights in India. It is essential to protect and
promote cultural diversity and to respect the cultural rights of all
individuals and communities in the country. By recognizing the importance of
cultural diversity and promoting the protection and preservation of cultural
heritage and practices, India can continue to promote social cohesion,
tolerance, and understanding, and ensure that all communities are able to
freely express and develop their cultural identities.
WHY
CULTURAL RIGHTS ARE IMPORTANT FOR WOMENS?
Cultural rights for women in India
are particularly important because women are often disproportionately affected
by cultural norms and practices that limit their ability to express and
participate in their cultural traditions. Women in India face a range of
cultural and social barriers that limit their ability to exercise their
cultural rights, including gender-based discrimination, patriarchal norms, and
restrictions on mobility and freedom of expression. One of the main cultural
rights for women in India is the right to education. Education is essential for
women to be able to participate in cultural activities and to preserve and
promote their cultural traditions. Education also plays a crucial role in
enabling women to challenge and change cultural norms and practices that are
harmful to their rights and well-being. However, women in India face numerous
barriers to accessing education, including poverty, lack of transportation, and
discrimination based on gender and caste. Another important cultural right for
women in India is the right to participate in cultural activities and
traditions. Women in India have a rich cultural heritage and have contributed
significantly to the country's diverse cultural traditions. However, women are
often excluded from cultural activities or are expected to perform certain
roles and functions that are traditionally associated with their gender. This
limits their ability to express themselves and to fully participate in cultural
traditions.
The right to freedom of expression
and creativity is also an important cultural right for women in India. Women
are often restricted in their ability to express themselves through artistic
and creative activities due to cultural norms that limit their mobility and
freedom of expression. Women who challenge these norms and engage in creative
activities may face backlash, harassment, or violence. Additionally, women in
India have the right to participate in decision-making processes that affect
their cultural traditions and heritage. Women's voices and perspectives are
often marginalized or excluded from decision-making processes related to
cultural activities and traditions. This limits their ability to shape and
influence cultural practices that affect their lives and well-being.
To protect and promote cultural
rights for women in India, it is essential to address the root causes of
gender-based discrimination and to ensure that women have equal access to education,
resources, and opportunities. This includes investing in education and training
programs that promote gender equality and women's empowerment, and providing
support to women who face discrimination and violence for expressing their
cultural identity and participating in cultural activities. Civil society
organizations also play an important role in promoting and protecting cultural
rights for women in India. These organizations can provide education and
awareness programs to promote women's participation in cultural activities and
traditions, and advocate for policies and laws that protect women's rights to
cultural expression and participation.
Cultural rights are important for
women because they allow them to express their identities, participate in
cultural activities, and enjoy cultural heritage without facing discrimination,
exclusion, or violence. These rights include the right to access cultural
resources, participate in cultural life, and create and disseminate cultural expressions.
Cultural rights are crucial for women's empowerment and gender equality.
Women's cultural rights are often undermined due to patriarchal attitudes,
which lead to discrimination against women based on their gender. Women are
frequently excluded from cultural activities, prevented from accessing cultural
resources, and subjected to cultural practices that violate their rights.
Cultural rights enable women to preserve and celebrate their cultural heritage,
which can help to build their sense of identity, self-esteem, and community
cohesion. They also provide opportunities for women to express themselves
creatively and develop their talents and skills. Cultural rights can help to
challenge and transform cultural practices that discriminate against women and
promote gender equality.
[3]The Sabarimala judgment is a
landmark case law of 2017, a PIL was filed under Article 32 by the petitioners
challenging the practice followed in Sabarimala temple which did not allow the
entry of women from the age group of 10-50 years. A constitutional bench was
set up in 2018 which held that the practice was unconstitutional and uplifted
the ban on entry of women stating that followers of Ayyappa do not form a
separate religious denomination but are Hindus only and, such a ban is not an
essential practice of the religion.
[4]Shayara Bano v. Union of India
(2017): In this
case, the Supreme Court of India declared the practice of instant triple talaq
(a form of divorce in which a husband could unilaterally divorce his wife by
simply saying "talaq" three times) to be unconstitutional. The court
held that this practice violated the fundamental rights of Muslim women,
including their right to equality and non-discrimination.
[5]Vishaka v. State of Rajasthan (1997): In this case, the Supreme Court of
India laid down guidelines for preventing sexual harassment of women in the
workplace. The court held that employers had a duty to ensure a safe working
environment for women and to take action against sexual harassment. This
decision has had a significant impact on the legal and social landscape for
women in India.
[6]S.R. Bommai v. Union of India (1994): In this case, the Supreme Court of
India held that secularism is a fundamental feature of the Indian Constitution
and that the state should not promote or support any particular religion. This
decision has helped to protect the cultural rights of minority groups in India,
including women from minority religious communities.
[7]National Legal Services Authority v.
Union of India (2014): In this case, the Supreme Court of India recognized the rights of
transgender persons and held that they are entitled to legal recognition of
their gender identity, as well as other rights and protections. This decision
has helped to promote the cultural rights of transgender women in India, who
may face discrimination and exclusion due to their gender identity.
[8]Kalyani v. State of Bihar (2016): In this case, the Supreme Court of
India held that the practice of demanding dowry (gifts or money given by the
bride's family to the groom's family) is illegal and punishable under the Dowry
Prohibition Act. This decision has helped to protect the cultural rights and
safety of women who may be at risk of dowry-related violence or harassment.
In conclusion, cultural rights for
women in India are essential for promoting gender equality and women's
empowerment. It is important to address the cultural and social barriers that
limit women's ability to exercise their cultural rights, and to promote
policies and programs that support women's participation in cultural activities
and traditions. By recognizing and protecting the cultural rights of women,
India can promote social cohesion, tolerance, and understanding, and ensure
that all individuals and communities are able to freely express and develop
their cultural identities.
Article Information
CULTURAL RIGHTS: WHY IT IS IMPORTANT FOR WOMEN?
Authors: MANJARI VERMA, DALLENDRA SHEKHAR
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/10/27
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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