In November 2014, the Bharatiya Muslim Mahila Andolan filed a public interest litigation in the Bombay High Court, claiming that the exclusion of women from entering the inner sanctum of the famous Haji Ali Dargah (by the Dargah Trust), violated their fundamental rights under the Indian Constitution. This claim was strongly resisted by the Dargah Trust, which invoked the religious freedom provisions of the Constitution, as well as insisting that it was only following the commandments of the shariat. After a court battle that lasted almost two years, in a landmark judgement handed down last week, the Bombay High Court agreed with the Mahila Andolan, and upheld the right of women to access the inner sanctum of the shrine.
The Haji Ali case is only the latest in a decades-old battle between the gatekeepers of religious institutions against those they wish to exclude. For a long time, one of the terrains upon which this battle has been fought has been in the courts. The Supreme Court has decided questions pertaining to the exclusion of Dalits from temples, the (caste-based) succession rules of temple priesthood, and the legal validity of religious excommunication. These are fraught questions, pitting claims of tradition and long-standing social values on the one hand, and individual civil rights on the other. There is a danger that a court might get dragged into a quagmire of religious claims and counter-claims, finding itself forced to rule upon issues internal to religion, which it has neither the competence nor the legitimacy to address. This is a danger that the Indian judiciary, in its history, has not always managed to avoid – and indeed, on occasion, has actively sought out.
Unambiguous outcome
What makes the Bombay High Court judgment remarkable is not only its unambiguous outcome (coming down expressly on the side of the women seeking access), but its keen awareness of the limits of its own jurisdiction, its avoidance of grand perorations about gender and religion, and the care that it takes to frame its reasoning in legal and constitutional terms (perhaps for this reason, the judgment comes in at a mere 56 pages). Apart from where it is required, by binding precedent, to address religious questions, the Court speaks only the language of law, and charts a narrow, legal path towards its final decision (last year, I had made a partially similar argument about how the Court might decide in favour of the women, while maintaining its role as a court of law, and not as a court of religion).
What the Haji Ali Dargah case represented, at bottom, was a clash of conflicting religious claims. Article 25(1) of the Constitution guarantees to all the freedom of religion. Article 26(b) guarantees to religious denominations the right to manage their own affairs in matters of religion. The excluded women claimed that barring them access to the inner sanctum of the shrine violated their fundamental right under Article 25(1) to freely practice their religion. The Dargah Trust, on the other hand, argued that since the exclusion of women from the inner sanctum of Dargahs was mandated by Islam, its actions were protected by Article 25(1). It also (faintly) appeared to claim the right to manage its own affairs under Article 26(1).
In adjudicating this clash, the Court first examined the merits of the Dargah Trust’s argument. Under Indian jurisprudence, the religious freedom clauses of the Constitution protect only “essential religious practices”, or practices that are “integral” to a religion. This test, developed by the Supreme Court in the 1950s and 60, has been heavily criticised as allowing secular courts to determine the validity of religious claims. Sixty years of unbroken jurisprudence meant that the Bombay High Court had little choice about whether or not to use the test. In using it, however, the Court rejected the temptation of undertaking a roving enquiry about the relationship between Islam and gender equality (an argument that was expressly made by the petitioners). Rather, the Court limited itself to the materials placed on record by the Dargah Trust (which included excerpts from the Quran and the Hadith), and found that none of this material mandated the exclusion of women from shrines. In fact, the Dargah Trust’s claims were thrown into further doubt by the fact that right until 2012, women were allowed into the inner sanctum. What had changed so suddenly? The DargahTrust argued that it had suddenly realised that it had got the rules of Islam wrong for all these years, but the Court found, instead, that the Trust had singularly failed to justify this claim.
In a slightly different manner, the Court also rejected the argument invoking the protection of Article 26(b). Delving into the history of the Trust, it found that the Trust had been set up by a government Scheme in the pre-Independence period, and according to the scheme, the Trust was not even authorised to determine “religious” questions. Furthermore (and in a nod to the deep linkages between the religious and the secular in India, especially in the case of administration of religious shrines), the Court took note of the fact the Trust was a public charitable trust, and that therefore, the Dagah itself was akin to a public space, open to all without discrimination.
Fundamental rights
With the Trust’s claims under the Constitution having been rejected, the conclusion followed logically: without the protective cover of the freedom of religion, excluding women from access to the inner sanctum of the shrine was a clear violation of their fundamental rights to equality (Article 14), non-discrimination (Article 15), and freedom of religion (Article 25). However, one question remained: fundamental rights are normally enforced against the State, whereas the Dargah Trust was a non-State body. How then could the Trust be held liable for violating fundamental rights?
The Court’s response was that under the Constitution, the State has a duty not merely to respect fundamental rights by refraining from infringing them, but also to protect them by ensuring their adequate enforcement in situations where it is needed. Here, the petitioners had wisely filed their case not only against the Dargah Trust, but also against the State (in fact, the State was the first Respondent). Consequently, the Court was able to direct the State to ensure that women who desired to access the inner sanctum of the shrine in exercise of their fundamental rights, should be given adequate protection to do so.
It should now be clear that the Bombay High Court’s judgment follows a clear and logical legal path, relying upon concrete and established legal propositions to hold that women have a right of access to the inner sanctum of the Haji Ali Dargah, and resists the temptation of striking off in adventurous directions, or of grand rhetoric. The Court has stayed its own judgment for six weeks, giving the Trust time to appeal; it will now be interesting to see how the case progresses in the Supreme Court.
Parallels might be drawn with the ongoing litigation in the Supreme Court, about the access of women to the Sabrimala shrine. This would be a mistake – precisely because of its narrow, legal character, the Bombay High Court’s judgment and reasoning is limited to the facts of this case. Although the questions will remain of a similar nature (can the trustees of Sabrimala demonstrate a religious mandate in favour excluding women? What is the character of the temple administration?), the answers might be different. For now, however, it might suffice to celebrate a decision that has strongly vindicated the rights of women and the claims of gender equality, and has done so within the boundaries of the Constitution.
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