The problem with legal paternalism from a feminist perspective is not merely that it restricts individual choice, but that it does so while claiming to speak on behalf of the very women whose voices it silences.
Transformative constitutionalism in modern India
Transformative constitutionalism refers to the concept of reinterpretation of the Constitution to keep up with the changes in the society. It is founded on the cardinal principles of equality, liberty, fraternity, and dignity. The judiciary is a key component of the idea of transformative constitutionalism, which is based on the idea that the law should be used as a tool for social change and that it should be interpreted in accordance with societal needs. Transformative constitutionalism is an idealistic approach to achieving the primary objectives and goals of the Constitution.
The idea of transformative constitutionalism can be traced back to an article by Prof. Karl Klare. He opined that transformative constitutionalism is:
… a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic, participatory, and egalitarian direction.1
Simply put, it is the idea that the law must change in accordance with societal norms and conditions, and the Constitution being the grundnorm must be creatively interpreted to allow for such changes to subsist within the four corners of the legal system.
Transformative constitutionalism, though it may not have been called as such, has existed since colonial times. The abolishment of Sati Pratha in 1829, the enactment of Hindu Widows’ Re-marriage Act, 1856, Female Infanticide Prevention Act, 1870 are such examples where the law was changed for the benefit of society.2
Post-Independence, transformative constitutionalism can be seen in several decisions of the Court. The landmark decision of Kesavananda Bharati v. State of Kerala3 which established the basic structure doctrine is one of the most significant examples of judicial reinterpretation to carve out something that is not evident in the text of the Constitution itself but rather relies on the very essence of the document. Other examples include K.S. Puttaswamy (Privacy-9J.) v. Union of India4, Joseph Shine v. Union of India5, Maneka Gandhi v. Union of India6, etc.
Transformative constitutionalism can be understood as having two facets:
Firstly, transformation in the sense of a statute or the Constitution can be understood to transform the document in question. After the requisite changes are made, the document “stands transformed”; or
secondly, it can be understood to mean that the statute or law “has a transformative purpose”. That is to say that the document has been enacted with a specific social change in mind as its intended consequence.
The difference between the two is purposive versus consequentialist. While most laws, especially those pertaining to personal freedoms and rights, are generally transformative in both senses, some laws may fall in either of the categories. A law may stand transformed by a prior societal transformation rather than a new law or Constitution. Whether a law merits transformation depends on whether or not the drafters intended to provide for space for transformation. Two pertinent questions must be asked, 1) whether or not that part of the Constitution that they are interpreting was transformative; 2) in what sense was it transformative, i.e. did it transform the content of pre-existing law, or did it have a transformatory purpose?7
By interpreting the Constitution in a manner that advances society’s larger interests, the Supreme Court serves a vital role in preserving a balance between societal interests and social developments. Every constitutional provision seeks to address a particular social problem, and in cases where there are conflicting interpretations, the courts choose the interpretation that most effectively addresses those issues. Upholding and promoting the values of our Constitution is the aim of transformative constitutionalism.
The concept of legal paternalism
Legal paternalism is a concept in jurisprudence and political philosophy where the State or law-making bodies enact legislation that restricts individual freedoms, ostensibly for the individual’s own good. This approach assumes that the State knows better than individuals what is in their best interests and can make decisions on their behalf. In India, a country with a rich tapestry of cultural, religious, and social norms, legal paternalism has played a significant role in shaping the legal landscape, often reflecting the complex interplay between traditional values and modern governance.
The roots of legal paternalism in India can be traced back to its colonial past and even further to its ancient legal traditions. The concept has evolved through various historical periods, each leaving its mark on the country’s legal philosophy. In ancient India, the concept of “Dharma” as propounded in texts like Manusmriti and Arthashastra, laid down codes of conduct for individuals and rulers alike. These texts often prescribed behaviours and restrictions that were deemed beneficial for both the individual and society, embodying a form of paternalism rooted in religious and moral authority.
In contemporary India, legal paternalism continues to manifest in various forms, reflecting both the country’s historical legacy and its ongoing struggle to balance individual freedoms with perceived societal needs.
One of the most prominent areas where legal paternalism is apparent is in laws aimed at preserving public morality and order. Laws curbing obscenity, prohibiting alcohol and banning gambling are often justified to exemplify paternalistic governance by restricting individual autonomy in the name of collective well-being. The idea of State is to protect people from addiction and financial ruin because they are themselves incapable of doing so.
While such laws can most certainly be justified on grounds of citizen welfare and protection, the interference in private law, in particular, personal and religious laws must be done with caution. The problem arises particularly in cases related to women. There is a tendency of the legislature as well as the judiciary to design laws with the aim of controlling women and curbing their individual autonomy under the guise of protection and equality.
Abolishment of societal evils of dowry death, sati and triple talaq have been milestones in the path towards a more progressive society. However, the upheaval of such practices came to be necessary since they directly affected the lives of the women and were initiated at their behest.
What happens then in situations where the “aggrieved” women do not demand their rights? Would the State still have the paternalistic responsibility to intervene and give them the “justice” they are not asking for?
When the State intervenes to “protect” women when such protection is not asked for, it amounts to the infantilisation of women. It reinforces the patriarchal stereotypes casting women as weak and vulnerable, requiring either the men of the family or the State to protect them and their rights because they are not competent enough to decide for themselves. It leads to an erosion of individual autonomy and agency. While well-intentioned, they disable women from making their individual choices and thereby make their rights subject to the will and ideology of the State.
Feminist reinterpretation of legal paternalism
While the judiciary has played an extensive role in ensuring equality for women, it has interfered in the personal and religious sphere of female autonomy. Interference that has been unwarranted and amounts to judicial overreach. While it is not novel for the judiciary to step outside of its powers enshrined under the Constitution and perform explicitly legislative functions, the interference with women’s personal choices, whether it be to wear a hijab or to refrain from entering a temple, is a clear example of legal paternalism.8
The feminist legal critique of paternalism rests on the fundamental recognition that women are autonomous agents capable of making informed decisions about their own lives, including decisions that may appear contrary to dominant narratives of women’s liberation. This critique challenges the assumption that there exists a singular, universal understanding of what constitutes women’s dignity, equality, or freedom. Instead, it acknowledges the multiplicity of women’s experiences and the various ways in which women negotiate their identities within religious and cultural frameworks.
The problem with legal paternalism from a feminist perspective is not merely that it restricts individual choice, but that it does so while claiming to speak on behalf of the very women whose voices it silences. This creates a paradox wherein the State, in its attempt to liberate women from perceived oppression, becomes itself an instrument of oppression by denying women the agency to define their own understanding of dignity and equality. The paternalistic approach assumes a false consciousness on the part of women: that they are unable to recognise their own oppression and therefore require State intervention to correct their misguided choices.
This assumption is deeply problematic because it reproduces the very patriarchal logic it claims to dismantle. Just as traditional patriarchy positions men as guardians who must protect women from themselves, legal paternalism positions the State as the enlightened guardian who must rescue women from their own decisions. In both instances, women are denied the status of full moral and legal agents capable of critical reflection and reasoned choice.
Justice D.Y. Chandrachud in Indian Young Lawyers Assn. v. State of Kerela (Sabarimala Temple case)9 adapted a version of an “anti-exclusionary principle” opining that the correct test to determine the constitutionality of a religious practice when it affects a particular group of individuals is not the essential religious practice test but rather to see whether such practice led to the exclusion of a certain group of individuals affecting their rights of dignity, equality and liberty.
The issue this principle raises is fourfold:
Firstly, to what extent should the State be allowed to interfere in personal and religious practices?
Secondly, whose version of dignity/equality should be taken in consideration — the States” or the women’s?
Thirdly, who is the correct authority to determine what constitutes as “dignity” and “exclusion” in such cases?
Fourthly, how should the State respond if the practice they seek to abolish as “exclusionary” and “violative of female dignity” is not considered as such by the women it seeks to protect?
This section of the paper will specifically deal with the fourth question in the context of two cases — Resham v. State of Karnataka (Hijab Ban)10 and the case of Sabarimala Temple11 entry.
Deconstructing the anti-exclusionary principle
The anti-exclusionary principle, as articulated by Justice Chandrachud, represents a significant departure from the traditional essential religious practice test. While the principle aims to protect vulnerable groups from discriminatory practices, its application in cases involving women’s religious practices reveals certain conceptual difficulties that merit careful examination. The principle assumes that exclusion is inherently discriminatory and violative of dignity, without considering whether the excluded group itself perceives such exclusion as harmful or whether it forms part of a voluntary religious observance.
This assumption becomes particularly problematic when dealing with religious practices that involve voluntary participation and acceptance. If a group of women willingly chooses not to participate in a particular religious practice or willingly accepts certain restrictions as part of their religious observance, can such a practice still be termed “exclusionary” in the constitutional sense? The anti-exclusionary principle, in its current formulation, does not adequately distinguish between involuntary exclusion imposed upon women against their will and voluntary abstention that forms part of religious observance understood and accepted by women practitioners themselves.
Moreover, the principle operates on the premise that constitutional values of equality and dignity can be applied uniformly across all contexts without regard to the specific cultural and religious meanings that such practices hold for their practitioners. This approach fails to account for the possibility that women may derive dignity and equality from their participation in religious traditions, even when such participation involves practices that appear exclusionary to external observers operating from a different cultural or ideological framework.
Sabarimala Temple case
In 2018, the Supreme Court with a 4:1 majority held the exclusion of women from entry into the temple as discriminatory and unconstitutional. The primary argument in this case was centred around the essential religious practice test and whether the exclusion of women from the age of 10-50 qualifies as an essential religious practice or not. However, for the purposes of this article, the argument that is most pertinent is the question of whether the Court can or should interfere in circumstances where the persons allegedly aggrieved (in this case women from age 10-50) do not require or desire State intervention in their personal matters.
The Sabarimala Temple case12 presents a complex case study in legal paternalism masquerading as progressive constitutionalism. While the majority judgment celebrated the decision as a victory for gender equality, it overlooked a fundamental question that ought to trouble any proponent of women’s agency: Can it truly be considered a victory for women’s rights when the women supposedly being liberated were neither consulted in any meaningful way nor represented in the litigation that purported to vindicate their rights?
The dissenting judgment given by Justice Indu Malhotra is powerful and persuasive in many aspects. Her dissent elucidates upon the aspect of equality and justifies the exclusion of a certain class of women (women of menstruating age) and not women in general (intelligible differentia) to preserve the sanctity of the “Nastik Brahmacharya” manifestation of Lord Ayyappa (reasonable nexus). Justice Malhotra’s observation that “notions of rationality cannot be invoked in matters of religion”13 represents a crucial acknowledgment of the limits of judicial intervention in religious matters. Her emphasis on the need to respect religious plurality and the autonomy of religious denominations reflects a more nuanced understanding of the intersection between gender, religion, and constitutional rights, an understanding that recognises women as active participants in religious traditions rather than passive victims requiring State rescue.
In contrast to this, Justice Chandrachud’s judgment offers an equally interesting and insightful opinion. He speaks about the anti-exclusionary principle according to which the need for ensuring equality, dignity, and liberty overrides the need to preserve a religious practice. This begs the question what if the community deprived of equality and dignity does not wish to be “liberated” by the Court?14
The majority judgment’s reliance on biological essentialism, i.e., characterising the restriction as discrimination based on menstruation which ironically reinforces the very logic it seeks to dismantle. By framing the issue solely as biological discrimination without engaging with the theological context, the Court failed to recognise how Ayyappan women understand their relationship with the deity. For these women, the practice was not understood as exclusion based on impurity but as a specific form of devotional relationship with a celibate deity who has taken a vow of brahmacharya. The Court’s inability or unwillingness to recognise this perspective reflects a deeper problem: The tendency to impose a secular-liberal understanding of equality onto religious communities without engaging with their own internal frameworks of meaning and religious significance
Interestingly, in the Sabarimala Temple issue, none of the petitioners were followers of Lord Ayyappa (or Ayyappans as they call themselves), much less Ayyappan women. The Court also failed to take the opinion of the “aggrieved” women into account while hearing or deciding this case. The tradition of exclusion of menstruating women into a specific temple is a long-standing tradition of the religious denomination in question. It aligns with their belief and the women of the community have had no objection to it. This case has inadvertently enlarged the scope of entertaining public interest litigations (PILs) against discriminatory religious practices filed by persons other than those aggrieved by such practices.
The absence of Ayyappan women’s voices in the litigation is not a mere procedural oversight but a substantive failure that fundamentally undermines the legitimacy of the judgment. Several Ayyappan women filed affidavits and intervened in the proceedings expressing their wish to maintain the traditional practice and their understanding of it as a matter of religious devotion rather than discrimination. Yet their testimonies were largely dismissed or, more troublingly, characterised as products of false consciousness, the assumption being that these women were either coerced by patriarchal forces or too indoctrinated to recognise their own oppression. This dismissal is emblematic of the paternalistic attitude that assumes women who defend traditional practices must necessarily be either ignorant of their rights or incapable of understanding their own situation.
This case has inadvertently enlarged the scope of entertaining PILs against discriminatory religious practices filed by persons other than those aggrieved by such practices. This expansion of PIL jurisdiction in religious matters raises serious concerns about the instrumentalisation of PIL as a tool for imposing majoritarian or elite conceptions of gender equality onto religious minorities and denominations. When PILs can be filed by individuals with no connection whatsoever to the religious community in question, there exists a real and present danger that such litigation becomes a mechanism for external interference and cultural imperialism rather than a tool for genuine grievance redressal by those actually affected.
Hijab ban
The issue of coercive legal paternalism was exacerbated in the case of Hijab Ban15 where the Court upheld the ban on wearing hijab in educational institutions in Kerela citing grounds of maintaining uniformity in secular institutions. However, a more pertinent and pressing concern was brushed under the rug in a rush to “protect” the “dignity” of Muslim women. The Court’s stance in upholding the ban was based on the perceived notion of hijab being an instrument of social oppression of Muslim women failing to acknowledge that it was the “oppressed” women in question resisting such a ban.16
The point most important for our consideration in this case is whether the Court should intervene to abolish a practice that the persons following the practice do not consider oppressive. The Karnataka High Court opined that the hijab is a tool of systemic social oppression used to reinforce patriarchal values and strips women away with any personal choice. This argument arises out of a misplaced assumption that such a practice must be necessarily discriminatorily coercive. This assumption may be refuted by proving that such a practice does not lead to discrimination but rather is required for Muslim women to feel part of their community. The fact that Muslim women were not the ones challenging the practice of wearing hijab but were rather fighting for their individual choice and autonomy to wear it, signifies that the perceived stigmatisation arising out of wearing a hijab does in fact not exist.17
The irony of the hijab ban cannot be overstated and must be confronted directly. In the name of liberating Muslim women from patriarchal oppression, the State effectively told these women that it knows better than they do what constitutes their own dignity and freedom. The ban forced Muslim women to choose between their education and their religious identity — a choice that no person should be compelled to make in a constitutional democracy that guarantees both religious freedom and the right to education. The women who challenged the ban were not seeking special treatment or exemption from legitimate educational regulations; they were asserting their fundamental right to dress in accordance with their religious beliefs while accessing education, a right that should be axiomatic in a pluralistic democracy.
The categorisation of a practice by the Court as discriminatory and oppressive even in light of evidence and testimony in complete contrast to such a view highlights the problem of legal paternalism, i.e. the State thinking that they “know better” than the women and must therefore take decisions to protect them. This patronisation of women by deciding for them because in their opinion women are not only incapable of determining whether a practice offends their modesty or not but are also not equipped to realise that a practice they have accepted as a ritual is in fact discriminatory because such rites and rituals are so entrenched in the societal fabric that enforces patriarchal opinions that to offend them would be to offend the very fabric of society.
The judgment also reveals a troubling conflation of different conceptual categories: of confusing cultural practices with legal rights and treating religious expression as antithetical to educational objectives. The Court’s observation that uniform is necessary for maintaining discipline and ensuring equality among students fails to account for the fact that religious expression is not inherently incompatible with educational goals. Many educational institutions across the country and globally accommodate religious dress without any compromise to academic standards or institutional discipline. The suggestion that allowing hijab would somehow undermine secularism or create disruption reflects an impoverished understanding of both secularism and religious freedom itself.
The problem of epistemic violence in judicial reasoning
Both the Sabarimala Temple case and Hijab Ban case illustrate what may be termed “epistemic violence”: the denial of women’s capacity to be knowers of their own experiences and the systematic dismissal of their articulated understanding of their own practices as irrelevant or misguided. When courts categorise women’s religious practices as oppressive without genuinely engaging with how women themselves understand and experience these practices, they commit epistemic violence by erasing women’s voices from the very debates that concern them most directly and intimately.
This epistemic violence is particularly insidious and damaging because it operates under the progressive guise of protecting women’s rights. The State and judiciary claim to speak for women’s interests while simultaneously refusing to hear what women are actually saying about their own interests. This creates a situation wherein women are doubly silenced: first by being excluded from meaningful participation in decision-making processes that affect their lives, and second by having their expressed views dismissed as products of false consciousness or patriarchal indoctrination when they do manage to articulate them.
The concept of false consciousness itself requires critical examination from a feminist perspective. While it is undoubtedly true that oppressive social structures can shape individual preferences and that internalised oppression is a real phenomenon, the assumption that any woman who chooses to engage in traditional religious practices must necessarily be suffering from false consciousness is deeply problematic and ultimately anti-feminist. This assumption denies women the capacity for critical reflection and reasoned choice. It assumes that there is only one correct way to be a liberated woman which is the way that conforms to secular-liberal feminist ideals, and that any deviation from this narrow path must be evidence of oppression rather than genuine choice or alternative conceptions of liberation.
A more nuanced and genuinely feminist approach would recognise that women can simultaneously be critical of patriarchal structures within their religious communities while also finding meaning, dignity, and identity through religious practices. Women’s agency is not unidirectional or monolithic; it operates within complex networks of power relations, cultural meanings, personal beliefs, and community ties. To acknowledge this complexity is not to deny the reality of patriarchal oppression or to romanticise tradition, but rather to recognise that women’s responses to such oppression are varied and multifaceted, and that liberation cannot be imposed from above by State fiat but must emerge from women’s own articulated needs, desires, and understanding of their situation.
Conclusion
A careful consideration of legal paternalism in India’s transformative constitutionalism will reveal much broader, deeper, and complex conflicts between power emanating from the State, religious freedom, and women’s agency. Cases of entry to the Sabarimala Temple and Hijab ban illustrate how judicial intervention, despite such intervention being touted as progressive, may unintentionally act against the autonomy they seek to protect. This study shows how State paternalism takes the place of a new kind of institutional patriarchy that rides in the wake of religious patriarchy, muffling the various female voices and experiences of practitioners.
This contradiction lies in the State’s approach to achieving gender justice through measures ironically not yielding to women’s capacity for self-governing decision-making. It has been evident within this research how the connection between women and religious practices is more complex and multifaceted than a binarised model of notionally represented liberation against oppression that typically underlies legal intervention. These two cases reflected the sophisticated understanding of their religion by the women involved. This was not something that seemed forced upon them, but rather an acknowledgement and deliberate acceptance that turned into fundamental aspects of their religious and cultural identity.
This analysis yields several key recommendations such as reconceptualising transformative constitutionalism to include women’s voices and experiences in the laws enacted. The courts and legislators must be able to fashion more subtle frameworks that can distinguish between genuinely oppressive practices and those that appear exclusionary to outsiders but possess legitimate religious and cultural significance to their practitioners.
In this context, the legal system needs to start incorporating an intersectional approach that appreciates how gender, religion, and cultural identity exist in lattice forms. There needs to be a shift from the one-size-fits-all rigid approach toward context-sensitive solutions in the context of gender justice. Committees with religious scholars, feminist legal experts, and women practitioners may fill the gap between constitutional ideals and religious practices.
There is, therefore, a need to improve grassroots women’s organisation and to create an avenue for the expressions of women on religious issues. The bottom-up process means that legal reforms will be based on the actual needs and desires of the communities affected rather than imposed from above, reflecting only abstract principles. To achieve this, legal education and judicial training should include modules on feminist jurisprudence, emphasising how women’s agency is important and how the danger of paternalistic intervention should be avoided. In such a manner, an even more nuanced sense of gender justice is better than simple formal equality in acknowledging and respecting the autonomous choices of women which could come into existence even at moments when mainstream liberal feminist narratives rejected these choices.
Transformative capacity of constitutional law must remain the mainspring for it as a form of important social change. But application of such constitutional law should be accompanied by a sense of deep regard for agency of women and religious freedom.
It is not the right way forward to replace religious authority with State authority. What must be done is to create legal frameworks that enable women to make choices regarding their religious practices while affording them protections against actual oppression. Only with this balanced approach can the law then really serve its transformative purpose and not fall into the trap of paternalistic overreach.
*Editorial Assistant (Legal), EBC Publishing Pvt. Ltd. Author can be reached at: prarthana.gupta@ebcpublishing.in.
1. Karl E. Klare, “Legal Culture and Transformative Constitutionalism” (1998) 14 S. Afr. J. on Human Rights 146.
2. Vrinda Narain, Postcolonial Constitutionalism in India: Complexities & Contradictions, (2016) 25 S. Cal. Interdisc. L.J. 109.
5. (2019) 3 SCC 39 : (2019) 2 SCC (Cri) 84.
7. Kalpana Mehta v. Union of India, (2018) 7 SCC 1.
8. Vineeta Sharma, “How Can Feminist Theology Reduce Gender Inequality in Religion?” (2018) 53(50) EPW Engage available at <https://www.epw.in/engage/article/how-can-feminist-theology-reduce-gender-inequality>.
11. Indian Young Lawyers Assn. v. State of Kerela, (2017) 10 SCC 689.
12. Indian Young Lawyers Assn. v. State of Kerela, (2017) 10 SCC 689.
13. Indian Young Lawyers Assn. v. State of Kerela, (2017) 10 SCC 689, para 481
14. Gautam Bhatia, “The Sabarimala Judgment— II: Justice Malhotra, Group Autonomy and Cultural Dissent” (29-9-2018) Constitutional Law and Philosophy, available at <https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-ii-justice-malhotra-group-autonomy-and-cultural-dissent/>.
16. Anandita Tayal, “The Hijab Verdict and (Un)Reasonable Restrictions” (2024) 57(13) Eco. & Pol. Weekly.
17. Megha Mehta, “Guest Post: Centering Women’s Voices— A Feminist Analysis of Religious Freedom and the Hijab Case” (21-9-2022) Const. L. & Phil., available at <https://indconlawphil.wordpress.com/2022/09/21/guest-post-centering-womens-voices-a-feminist-analysis-of-religious-freedom-and-the-hijab-case/>.
The point about legal paternalism is relevant and well-made. However, while the HC judgment in the Hijab ban case is indeed a good example the same, the Sabarimala case may not be. There is a fundamental difference between the two. In Sabarimala, the challenge was to a religious practice which forcibly prevented women from entering the temple regardless of whether they wished to do so. Therefore, the SC judgment upheld the women’s “right to choice” and freedom to enter the temple if they so wished – it did not force any unwilling woman to go against their religious practices. In the Hijab case however, the challenge was to a government order which took away the choice of Muslim women to follow their religious practices. In upholding the ban, the Karnataka High Court adopted a paternalistic view without accounting for women who wished to wear the hijab by choice.
While it is true that the Petitioners in Sabarimala were not aggrieved women, the article is not correct in assuming all women supported the exclusionary practice. There is evidence to suggest that many women protested against the ban on menstruating women and welcomed the judgement, notably Bindu Ammini and Kanaka Durga who became the first two women of menstruating age to enter the temple (https://www.outlookindia.com/national/international-women-s-day-meet-bindu-ammini-and-kanaka-durga-the-first-women-to-enter-sabarimala-temple-news-267762). There were also prominent voices among activists and in social media opposing the practice (https://openthemagazine.com/society/importance-of-being-impatient).
It may be true that a large number of women also supported the ban on temple entry. However, while the Hijab ban case treads roughshod over women’s right to choose, the Sabarimala judgment does not derogate from women’s right to practice their religious beliefs and refrain from entering the temple. It merely allows other women who feel aggrieved by the practice to exercise their own fundamental rights. Now if one were to argue that such exercise of rights is itself derogatory to religious beliefs, that creates a multitude of other problems.