The way forward

Haji Ali verdict upholds citizens’ constitutional rights over readings of faith and tradition

By: Editorial | Published: August 30, 2016 12:14:10 am

The Bombay High Court ruled in favour of allowing women to the inner sanctum of the Haji Ali dargah in Mumbai last week. The two-judge bench, hearing a plea filed by the Bharatiya Muslim Mahila Andolan, held that the ban imposed on women devotees “contravenes Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 25 (free profession and practice and propagation of religion) of the constitution”. The court refuted the dargah trust’s claim that the ban was essential to the practice of Islam. It upheld the right of women devotees to practice religion above the trust’s claim to manage its own affairs; the latter, the court said, was premised on a misreading of Article 26.

The judgment is a big step forward, towards removing gender discrimination in the practice of religion. Its implications go beyond Haji Ali. The constitutional principles that the HC outlined in this case could now help open up other similar spaces. A case in point is Sabarimala, the Hindu shrine in Kerala where women in the age group 10-50 years are disallowed to worship in the name of tradition. Activists who see the Sabarimala practice as gender discrimination have been enthused by the Haji Ali verdict and hope that it will have a bearing on the proceedings in a PIL currently being heard by the SC. The diversity in worship traditions across religions and site-specific differences make codification and reform of religious practices a touchy and complicated process. Traditionalists invoke a host of categories — from secular matters like law and order to faith and tradition — to insist on the status quo, even when it is clear that the so-called tradition is of recent origin or based on outdated notions of bodily purity and social hierarchy. In the Haji Ali case, too, these were invoked, but the HC, helped by the fact that the discrimination began only in this decade, held that the individual citizen’s rights to equality enshrined in Articles 14 and 15 of the Constitution cannot be superceded in the name of the constitutional freedom (Article 26) given to every religious denomination to manage its own affairs. The state, the court said, is mandated to ensure that there is no gender discrimination.

The courts are compelled to push for social and religious reform as political parties across ideologies prefer silence or tend to side with the conservative opinion in matters of faith. If parties take up the task of engaging with the traditionalists on constitutional values and rights and prepare the ground for reform, it would ease the pressure on the courts.

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