The Bombay high court’s verdict lifting the ban on the entry of women into the sanctum sanctorum of the Haji Ali dargah in Mumbai must be welcomed by all law-abiding and freedom-loving people who advocate equal rights for women.
It’s a victory of constitutional principles over religious dogmas that have long been used as a tool to suppress and subjugate women, who constitute half of humanity.
A bench of justice VM Kanade and justice Revati Mohite Dere said women should be permitted to enter the dargah because the ban went against the constitutional provisions that guaranteed them the right to equality, right to non-discrimination, and right to religion.
This comes months after the high court allowed women to enter the sanctum sanctorum of the Shani Shingnapur temple in Maharashtra, putting an end to a 400-year-old custom. A similar case concerning the Sabarimala temple in Kerala is pending before the Supreme Court.
The verdict becomes all the more important because it comes from the same court that passed a regressive verdict in 1951 in the Narasu Appa Mali case, holding that a personal law was not subject to fundamental rights because it was not a ‘law’ within the meaning of Article 13.
The verdict once again brings to the fore the volatile relationship shared by law and religion in India.
First, the conflict is natural because the space occupied by law today was once completely in the domain of religion. The vice-like grip the Church had over the lives of commoners and kings alike in pre-renaissance Europe is a grim reminder of the tyranny of religion.
However, the Church was not the only one to blame. In many Islamic countries, the role of religion in an individual’s life is all-encompassing even now. Religion has been a guiding force in an individual’s life in India too. However, during the British rule, the role of religion in public life was curtailed to a great extent as the Raj tried to enforce its own laws.
Second, religious laws have always had an inherent gender bias – be it Catholicism, Hinduism or Islam. But after India adopted a modern constitution on January 26, 1950, guaranteeing a set of basic fundamental rights to all – irrespective of gender – discriminatory religious practices should ideally have ceased to operate.
Third, as society evolves, laws change accordingly. However, religious leaders and institutions have traditionally resisted change. The laws governing Hindus have been amended to a great extent, despite stiff opposition from various Hindu groups and then president Rajendra Prasad.
The process of change is still on. The Hindu Succession Act was amended in 2005 to give equal property rights to daughters – both married and unmarried – and bring them on a par with the male members of a joint Hindu family governed by the Mitakshara law. Even in 2014, certain changes were introduced in the personal laws governing Hindus.
Unfortunately, no such reform has taken place in the Muslim Personal Law due to vehement opposition from the community. Even judicial interventions are not welcome. The Shah Bano case (1985) is an example where the Rajiv Gandhi government bowed to the diktats of regressive Muslim leaders and reversed a progressive verdict of the top court that had ordered alimony for a mother of five.
This dargah order has come at a time when many Muslim women have approached the Supreme Court against the arbitrary triple talaq custom and other discriminatory practices – such as gender bias in maintenance and inheritance in their community – invoking their fundamental and non-discrimination. The Muslim Personal Law Board has claimed that the Muslim law is made by God, and the Supreme Court cannot interfere with it.
In the past three decades, the apex court has reminded the government several times of its constitutional obligation of enacting the uniform civil code, ensuring equal rights to all. However, successive governments have adopted a very cautious approach to issues touching upon religious beliefs.
An ideal situation would be where religion operates in the personal sphere and the law governs public space. In case of a conflict, the latter – which is based on the constitutional principles of freedom, equality and democracy – must prevail.
“Religion cannot be allowed to be merciless... Faith cannot be used as a dehumanising force.” This is what the Supreme Court said in 2014, declaring that Islamic courts have no constitutional basis and Muslims cannot be forced to follow their fatwas.
The Bombay high court verdict holds out hope for all those who look up to courts for protecting their fundamental rights.
Unfortunately, the Supreme Court has dithered on these issues and tried to pass the buck by saying that it was for the government and Parliament to take a call on these issues. In the Krishna Singh-versus-Mathura Ahir case (1980), the top court reiterated the view taken by the Bombay high court in the Narasu Appa Mali case that fundamental rights don’t touch upon personal laws. Consequently, there is confusion on the issue even now.
Speaking on the order allowing women to enter the dargah, former Delhi high court judge RS Sodhi said: “I congratulate the Bombay HC for catching the bull by the horns. There is no personal law that’s superior to the Constitution. Men and woman have equal rights under the Constitution. No personal law can deny them these rights, and any discrimination has to be put down with a firm hand.”
The Haji Ali Dargah Trust has said it would challenge the verdict before the Supreme Court. Obviously, the last word on the controversy hasn’t been said yet.
(The author is the legal editor of Hindustan Times)