The equality of entry
The Haji Ali Dargah case verdict was arrived at by hewing closely to the Constitution, to law, and to the task of defending individual rights. It is admirable for resisting the temptation of interpretive adventurism
When B.R. Ambedkar was asked why he was so passionate about the issue of temple entry for Dalits, he replied: “The issue is not entry, but equality.” It did not matter to Ambedkar that he, himself, was indifferent towards religion, or that temple entry was hardly the solution to Dalit oppression. What did matter to him, however, was that one of the most powerful tools by which an unequal society expressed and reinforced its hierarchies — through the denial of equal access to religious and sacred spaces — had to be smashed.
More than 80 years later, August 26, 2016, the Bombay High Court agreed with Ambedkar when it held that the exclusion of women from the inner sanctum of the Haji Ali Dargah by the Dargah Trust violated not only their fundamental right to religious freedom but also their right to equality and non-discrimination under the Indian Constitution. And in holding that women were entitled to police protection, if needed, to exercise their right to equal access, the court placed the state firmly on the spot for effectively guaranteeing and enforcing the constitutional rights of individuals, even against their own communities.
Gautam Bhatia
An issue framed in legal terms
The Bombay High Court’s judgment, authored by Justice Revati Mohite Dere, is not the last that we’ve heard of this matter. The Dargah Trust will certainly appeal (the High Court stayed the operation of its judgment for six weeks to allow it to do just that), and the battle will move to the Supreme Court. There, it will join the other contentious issue of religious access, which is already before the apex court: the right of women to enter the Sabarimala shrine in Kerala. But whatever happens in the Supreme Court, Justice Dere’s judgment is a landmark ruling. This is not only because of its unambiguously progressive outcome, coming down firmly on the side of equal access for women but also because of its dexterous handling of the fraught and tense stand-off between the claims of individual rights and gender equality on the one hand and tradition and religious values on the other.
The Bombay High Court’s judgment, authored by Justice Revati Mohite Dere, is not the last that we’ve heard of this matter. The Dargah Trust will certainly appeal (the High Court stayed the operation of its judgment for six weeks to allow it to do just that), and the battle will move to the Supreme Court. There, it will join the other contentious issue of religious access, which is already before the apex court: the right of women to enter the Sabarimala shrine in Kerala. But whatever happens in the Supreme Court, Justice Dere’s judgment is a landmark ruling. This is not only because of its unambiguously progressive outcome, coming down firmly on the side of equal access for women but also because of its dexterous handling of the fraught and tense stand-off between the claims of individual rights and gender equality on the one hand and tradition and religious values on the other.
Indeed, the issue was framed before the Bombay High Court in precisely these terms. The Bharatiya Muslim Mahila Andolan, the women’s organisation that initiated the public interest litigation against the Dargah Trust, invoked the protection of Articles 14 and 15 (rights to equality and non-discrimination), and 25(1) (right to religious freedom) of the Constitution. The trust responded by invoking Article 25(1) itself, arguing that Islam mandated the exclusion of women from the inner sanctum. It also (though faintly) invoked Article 26(b), that granted religious denominations the right to manage their own affairs in matters of religion.
Court intervention in religion
This clash — and the use of the courts to resolve it — is not new. The Supreme Court has previously ruled on the legality of religious excommunication, the exclusion of Dalits from temples, and the hereditary caste-based succession of temple priests. To mediate the competing claims of individuals, communities and the state, very early on in its history, the Supreme Court invented something that it called the “essential religious practices test”. Under this test, ostensibly religious practices could gain constitutional sanction only if — in the view of the Court — they were “essential” or “integral” to the religion in question. In the beginning, the court emphasised that essential religious practices would have to be determined by taking an internal point of view, and looking to the tenets and the doctrines of the religion itself. In later years, however, the court began to take an increasingly interventionist stance, using the essential religious practices test to make wide-ranging — often untethered — claims about religions, and even trying to mould religions into more rationalistic and homogenous monoliths, while marginalising dissident traditions. The high watermark of this approach came in 2004, when the court held that the public performance of the Tandava dance was no essential part of the religion of the Ananda Marga sect, even though it had been specifically set down as such in their holy book.
This clash — and the use of the courts to resolve it — is not new. The Supreme Court has previously ruled on the legality of religious excommunication, the exclusion of Dalits from temples, and the hereditary caste-based succession of temple priests. To mediate the competing claims of individuals, communities and the state, very early on in its history, the Supreme Court invented something that it called the “essential religious practices test”. Under this test, ostensibly religious practices could gain constitutional sanction only if — in the view of the Court — they were “essential” or “integral” to the religion in question. In the beginning, the court emphasised that essential religious practices would have to be determined by taking an internal point of view, and looking to the tenets and the doctrines of the religion itself. In later years, however, the court began to take an increasingly interventionist stance, using the essential religious practices test to make wide-ranging — often untethered — claims about religions, and even trying to mould religions into more rationalistic and homogenous monoliths, while marginalising dissident traditions. The high watermark of this approach came in 2004, when the court held that the public performance of the Tandava dance was no essential part of the religion of the Ananda Marga sect, even though it had been specifically set down as such in their holy book.
A question of civil rights
Faced with more than five decades of consistent Supreme Court jurisprudence, the Bombay High Court had no feasible choice other than deploying the (unsatisfactory) essential religious practices test to determine the validity of the Dargah Trust’s arguments. The manner in which it did so, however, was careful and circumspect. The court refrained from making grand, rhetorical claims about Islam and gender equality (even though it was invited to do so) and, instead, limited itself to considering the material placed before it by the Dargah Trust. On a perusal of these passages from the Koran and the Hadith, the court found that none of this material supported the trust’s claim that Islam mandated the exclusion of women from the inner sanctum of shrines. The trust’s claims were thrown further into doubt because right until 2012, women’s entry had, in fact, been allowed. The trust was unable to show what had changed so suddenly in 2012, even though it did attempt to argue that it had been interpreting the requirements of the Sharia wrongly for all these years.
Faced with more than five decades of consistent Supreme Court jurisprudence, the Bombay High Court had no feasible choice other than deploying the (unsatisfactory) essential religious practices test to determine the validity of the Dargah Trust’s arguments. The manner in which it did so, however, was careful and circumspect. The court refrained from making grand, rhetorical claims about Islam and gender equality (even though it was invited to do so) and, instead, limited itself to considering the material placed before it by the Dargah Trust. On a perusal of these passages from the Koran and the Hadith, the court found that none of this material supported the trust’s claim that Islam mandated the exclusion of women from the inner sanctum of shrines. The trust’s claims were thrown further into doubt because right until 2012, women’s entry had, in fact, been allowed. The trust was unable to show what had changed so suddenly in 2012, even though it did attempt to argue that it had been interpreting the requirements of the Sharia wrongly for all these years.
Likewise, the court’s rejection of the trust’s Article 26 claims was sober and measured. Surveying the history of the Dargah Trust, it found that it had been set up in pre-Independence days by a government-imposed scheme. That scheme did not even authorise the trust to adjudicate religious claims. Furthermore, the trust was a public charitable trust. Consequently, the Dargah was akin to a public space, and access to it could not be denied on discriminatory grounds. Interestingly, the court’s reasoning mirrored the earliest temple-entry movements in colonial India. While agitating for the rights of Dalits to enter Hindu temples, Ambedkar repeatedly argued that temples were public spaces, akin to roads, schools, or water tanks. In a society where religion and the public sphere have always been so intertwined, Ambedkar’s fundamental insight was that religious exclusion had a public character, and that it was not just an issue of sacral traditions but one of civil rights and material and symbolic equality. In a society that has long treated women as second-class citizens, and emphasised and concretised that inequality through control over religious spaces, Ambedkar’s arguments find clear resonance in the judgment of the Bombay High Court.
Putting onus on the state
Once the court had found that the Dargah Trust could not invoke constitutional protection for its exclusion of women from the inner sanctum, the logical conclusion followed: since exclusion clearly violated the women’s right to religious freedom, as well as their right to equality, it was unjustified. However, there was one more thing that the court had to do. Since the Constitution primarily guarantees fundamental rights to individuals against the state, it had to explain how the Mahila Andolan could succeed where the rights-infringing actor was a private, non-state body (the Dargah Trust).
Once the court had found that the Dargah Trust could not invoke constitutional protection for its exclusion of women from the inner sanctum, the logical conclusion followed: since exclusion clearly violated the women’s right to religious freedom, as well as their right to equality, it was unjustified. However, there was one more thing that the court had to do. Since the Constitution primarily guarantees fundamental rights to individuals against the state, it had to explain how the Mahila Andolan could succeed where the rights-infringing actor was a private, non-state body (the Dargah Trust).
Justice Dere answered this question by holding that the state was constitutionally bound to respect fundamental rights, not merely by refraining from infringing them, but also by actively intervening in order to protect them when they were threatened by others. Consequently, it was for the state to ensure — whether by providing adequate protection or otherwise — that women who wanted to exercise their fundamental right to equal access at the Haji Ali Dargah could do so.
In the exercise of their constitutional functions, there are times when it becomes necessary — and inevitable — for courts to consider and decide deeply divisive and polarising questions about gender relations, the family, religion, and society. In such situations, it is tempting for judges to think that they are in a position to solve age-old, intractable social problems, and to sally forth on adventurous tracks where both their competence and their legitimacy are called into question. This is a temptation that the Indian judiciary has not always been able to resist. The Bombay High Court verdict in the Haji Ali case, however, is an example of a judgment that adroitly negotiates these difficult issues by hewing closely to the Constitution, to law, and to the judicial task of defending individual rights. For that, the Bombay High Court must be praised, and its judgment upheld.
Gautam Bhatia is a Delhi-based lawyer.
Source: The Hindu, 8-09-2016
