Thursday, September 1, 2016

Javed Anand - Haji Ali will be reference point for similar cases involving rights of Muslim women

The Bombay High Court’s verdict upholding the constitutional right of women to enter the sanctum sanctorum of the iconic Haji Ali dargah in Worli could serve as a “get real” signal to the custodians of Indian Islam. Sadly, that is not to be. The theological matrices within which the Indian ulema are trained and constrained to function, render them ill-equipped to co-relate Islam with universally accepted modern-day principles of secular governance and equal citizenship rights. Given this, the ulema are incapable of reading the writing on the wall.

But educated Muslim women such as those leading the Bharatiya Muslim Mahila Andolan (BMMA) are today doing their own reading to discover that, contrary to the claims of the male-centred clerics, the core values enshrined in the Quran are in consonance with the egalitarian, gender-just principles of the Indian Constitution. So, they are turning to the courts, which are restoring to Muslim women their Quran-given and constitutionally-guaranteed rights that the ulema continue to deny. The Bombay HC’s verdict has opened the floodgates and there is no turning back the tide.

Of the many reasons cited by the Haji Ali Dargah Trust in support of its 2011-12 decision to bar women from getting close to the Sufi saint’s mazaar, the core issue before the court was the trustees’ case that restricting entry of women to the sanctum sanctorum of the dargah is “an essential and integral part of Islam” and was therefore entitled to protection under Article 25 (Right to freedom of religion) and Article 26(b) (Freedom of every religious denomination or any section thereof to manage its own affairs in matters of religion).
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The Bombay HC relied on several rulings of the Supreme Court, which may be summed up in the verdict of the seven-judge bench in the Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Math case: “What constitutes the essential part of a religion has to be determined with reference to its doctrines, practices, tenets, historical background etc. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. [The] test to determine whether a part or practice is essential to the religion is to find out whether the nature of religion will change without that part or practice. It is such essential parts [that are] protected by the Constitution”.

In the light of the SC’s rulings, the Bombay HC observed that in the Haji Ali case reference must be made to the Quran, “the fundamental Islamic text”, to determine whether the recently enforced practice is “essential to Islam”. It noted that the Quranic verses cited by the trustees “do not in any way show that Islam does not permit entry of women at all, in dargahs/mosques”. Not only did the trustees fail the “essential practices” test, by their own admission, women were allowed entry into the sanctum sanctorum until a few years ago.

Concluding that “Article 26 cannot be seen to abridge or abrogate the right given under Article 25 of the Constitution” the HC court ruled: “We hold that the ban imposed by the Trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali dargah contravenes Articles 14, 15 and 25 of the Constitution and as such restore status quo ante, that is, women be permitted to enter the sanctum sanctorum, on par with men”. Some legal experts maintain that the essentiality criterion is a slippery slope. The judiciary should avoid getting embroiled in the business of what is essential and what is not and simply affirm that the freedom of religion is subservient to other fundamental rights.

What next? The HC order already hints at Muslim women’s right to pray in mosques; yet another example of an Islam-given right denied by the ulema. Several petitions by Muslim women are currently pending in the SC, praying for an end to triple talaq, halala marriage (divorced Muslim women must marry another man, engage in sexual intercourse and divorce him before she can remarry her former husband) and polygamy. Who is going to convince the SC, and how, that these practices are “an integral and essential part of Islam” and that a ban on such practices will “change the very nature of Islam”? Muslim women now know their Quran and the Constitution.
(This article first appeared in the print edition under the headline ‘Opening the floodgates’)
The writer is general secretary, Muslims for Secular Democracy, and co-editor, ‘Communalism Combat’