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’
