Constitutional principles trump religious dogmas

The Bombay high court’s verdict lifting the ban on the entry of women into the sanctum sanctorum of the Haji Ali dargah in Mumbai must be welcomed by all law-abiding and freedom-loving people who advocate equal rights for women.

It’s a victory of constitutional principles over religious dogmas that have long been used as a tool to suppress and subjugate women.

The HC said women should be permitted to enter the dargah as the ban went against the constitutional provisions that guaranteed them right to equality, right to non-discrimination and right to religion.

This comes months after the high court allowed women to enter the sanctum sanctorum of the Shani Shingnapur temple in Maharashtra, putting an end to a 400-year-old custom. A similar case concerning the Sabarimala temple in Kerala is pending before the SC.

The verdict brings to the fore the volatile relationship between law and religion in India.

First, the conflict is natural because the space occupied by law today was once completely in the domain of religion. The vice-like grip the church had over the lives of commoners and kings alike in pre-renaissance Europe is a grim reminder of religion’s tyranny.

In many Islamic countries, the role of religion in an individual’s life is all encompassing even now. Religion has been a guiding force in an individual’s life in India too. However, during the British rule, the role of religion in public life was curtailed to a great extent as the Raj tried to enforce its own laws.

Second, religious laws and practices have always had an inherent gender bias. But after India adopted a modern Constitution guaranteeing fundamental rights to all, discriminatory religious practices should ideally have ceased to operate.

Third, as society evolves, laws change accordingly. However, religious leaders and institutions have traditionally resisted change. The laws governing Hindus have been amended to a great extent, despite stiff opposition. The Hindu Succession Act was amended in 2005 to give equal property rights to both married and unmarried daughters. Unfortunately, no such reform has taken place in Muslim Personal Law.

The dargah order comes at a time when many Muslim women have approached the SC against triple talaq and gender bias in maintenance and inheritance, invoking their fundamental right to equality. But the Muslim Personal Law Board has claimed Muslim law is made by God, and courts cannot interfere with it. An ideal situation would be where religion operates in the personal sphere and law governs public space. In case of a conflict, the latter — based on the constitutional principles of freedom and equality — must prevail.

“Religion cannot be allowed to be merciless... Faith cannot be used as a dehumanising force,” the SC said in 2014, declaring that Islamic courts had no constitutional basis and Muslims cannot be forced to follow their fatwas.

Former Delhi high court judge RS Sodhi said: “I congratulate the Bombay HC for catching the bull by the horns. There is no personal law that’s superior to the Constitution. Men and woman have equal rights under the Constitution. No personal law can deny them these rights, and any discrimination has to be put down with a firm hand.”

The Haji Ali Dargah Trust has said it would challenge the verdict before the SC. Obviously, the last word on the row hasn’t been said.