In an unprecedented order, the Bombay High Court issued a directive allowing the entry of women into the inner sanctum of the sacred Haji Ali Dargah in Mumbai, banned since 2011. While most have celebrated the decision as a landmark victory for women’s rights, there are some who question the constitutionality of the verdict. After all, they say, the Constitution of India protects the rights of the trustees of the Dargah to manage its own affairs in matters pertaining to religion in Article 26.
Such a reading of the religious freedom clauses (Article 25 and 26) can only be called a gross and convenient oversimplification of the constitution of India. Ironically, for those concerned with the worrying rise of ‘judicial activism’ and ‘judicial overreach’, the Haji Ali verdict has its very roots in these two clauses.
Decoding Article 25 and 26 of the Indian Constitution
Article 25(1) guarantees the right to freedom to profess, practice and propagate religion. However, there is also a sub-clause which is often ignored. The wording of the clause reads as:
“Subject to public order, morality and health, and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”
It is important to note that unlike the language of Article 19 where the main article lists out all the fundamental rights followed by the reasonable restrictions they are subject to, Article 25 begins with restrictions subjective to judiciary’s discretion, in the case of conflict. In fact, Article 25(2)(a) allows the state to make laws “regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.”
Article 26(b) guarantees the right of religious denominations to manage their own affairs - implicitly, without state intervention- in matters of religion, and Article 26(d) guarantees these denominations to administer property in accordance with law, ultimately subjecting the said administration to state-made laws.
In the case of the Haji Ali dispute, the petitioners belonging to Bhartiya Muslim Mahila Andolan (BMMA) contended that Article 25(1) protects their right to practice religion, which includes the right to worship.
Since Article 26(d) mandates that the trust administers Haji Ali in accordance to the law which demands the equality of all persons, the ban is de facto contentious. In the matter of the trust having the right to manage its own affairs, the question comes down to -is the act of women entering the dargah a religious matter?
Who Decides What is Religious and What is Not?
While it is true that Articles 25 and 26 were written to protect not only matters of doctrine and belief but also acts followed in the pursuance of beliefs (forbidding women to enter the inner sanctum, in this case), they are limited to “rituals and observances, ceremonies and modes of worship which are integral parts of religion.” (Syedna Saiffudin vs State of Bombay, 1962)
Since the constitution does not define what can be termed as “integral parts of religion”, the matter ultimately comes to judiciary to interpret on a case-to-case basis. In the case of Lakshmindra Swaminath (1954), the Supreme Court ruled that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”
In the Haji Ali dispute, the petitioners contended that neither the Quran nor the Hadith forbade women from entering the mosque or gender inequality of any kind. In fact, the respondent’s main claim was that a woman being so near the grave of a male Muslim saint is a “grievous sin” per Shariyat Law, which, contrary to popular view, does not come from the basic scriptures of Islam; in fact, most of them are man-made. Thus, by their own admission, the respondents preclude their main argument from judicial consideration.
The bench consisting of Judges VM Kanade and Revati Dere ruled after observation that since the Quran or the Hadith does not forbid the entry of women into a dargah and that a majority of dargahs across the country have no such ban, their exclusion does not constitute an essentially religious practice, thereby removing the trust of the Dargah from the scope of protection lent by Article 26(b).
Judicial Overreach or Social Reform?
At this point, any critical thinker will question the “essential practices test” and whether or not the judiciary has the right or competency to decide what is essentially religious and what is not; in fact, the term “essential religious practices’ finds no mentions in the constitution at all, then why look to it?
The answer can be found, not very far, in the words of the father of the Indian Constitution, Dr BR Ambedkar:
The religious conceptions in this country are so vast that they cover every aspect of life, from birth to death. There is nothing which is not religion and if personal law is to be saved, I am sure about it that in social matters we will come to a standstill. I do not think it is possible to accept a position of that sort. There is nothing extraordinary in saying that we ought to strive hereafter to limit the definition of religion in such a manner that we shall not extend beyond beliefs and such rituals as may be connected with ceremonials which are essentially religious.An excerpt from Ambedkar’s speech at the Constituent Assembly on 2 December 1948.
With the Haji Ali verdict, not only has the court excluded the trust and its ban against women from constitutional protection, by opining on whether the ban is essentially religious, has redefined the religion itself in a more progressive direction.
To say that this verdict is a case of judicial overreach is to undermine the spirit of the religious freedom clauses written in the Constitution, and is by no means is violative of it. In fact, it is giving stalwarts like Ambedkar little credit for foreseeing such disputes and wisely leaving enough space for the state to pass reformative and social legislature.
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