Gender Discrimination and the Right of Mahajanship: The Constitutional Infirmities in Goa’s Devasthan Laws

Dr. B.R. Ambedkar, in his closing speech on the Draft Constitution, expressed emphatically the need for India to be shaped into a social democracy, which would in turn serve as a strong foundation of India’s political democracy. Social democracy is a way of life which recognises liberty, equality and fraternity as principles of life. The Indian Constitution and the fundamental rights guaranteed by it have functioned as the tailwind propelling our society towards attaining this goal of a social democracy, and one of the Rights which has played a weighty role is the right to equality. The right to equality before the law and equal protection of the laws is one of the bedrocks of the Indian Constitution, and in furtherance of this right, the Indian judiciary has consistently recognised gender equality as a fundamental right. While on the one hand gender equality is extensively recognised and celebrated, on the other, various statutory and personal laws across India have provisions which are inherently discriminatory towards women in varying measures. In this Research Paper, the authors delve into and examine a law of the State of Goa, the Devasthan Regulation, 1933, which governs the administration of Hindu temples in Goa. The terminus a quo of this analysis revolves around particular provisions of the Regulation which restrict the right to administer the affairs of a Hindu temple only to male descendants of the founders of the temple, which provisions are juxtaposed with precedents discussing the right to gender equality; and thereafter with possible defenses which could be raised to save such provision from being declared unconstitutional by judicial review.