Once again, the judiciary has stood up for women. The Bombay High Court judgment upholding the right of women devotees to go right up to the sanctum sanctorum of the city’s popular Haji Ali Dargah is a valuable enunciation of fundamental rights of women vis-a-vis the rules laid down by male custodians of religion.
It is bound to be denounced by the Haji Ali Dargah trustees and by some Muslim political leaders as "judicial interference in minority affairs". That’s the tried and tested bogey resorted to by such leaders every time a demand is made for change in oppressive community practices and laws. Well, it has now become a tired bogey. These powerful men should realise that it is their own rigidity and arrogance that forces women - and often, men - to approach the courts to settle community issues.
In this case too, the petitioners, the Bharatiya Muslim Mahila Andolan had tried every possible means of resolving the sudden ban on women going right up to the mazaar of Peer Haji Ali Shah Bukhari, imposed in 2012. Starting with meeting the President of the Dargah’s Trust, they had also sent pleas to every possible authority who could intervene. When nothing came of these efforts, they went to court.
The caution with which the court decided the matter is worth noting. At the very beginning, the judges asked the Trust to resolve the matter amicably. However, the trustees stuck to their ban. The judges also indicated that they would wait till the Supreme Court gave its judgement in the Sabarimala Temple entry-for-women case. Finally, it asked the state government to spell out its stand on the matter.
The Muslim leaders who supported the ban are bound to highlight the fact that the BJP-led state government, which was made a respondent, did not shy away from taking a stand, as a "secular" Congress government might have.
Yet, as far as the court is concerned, no one can blame it for disregarding the sensitivity of the matter. But now that the judgment has finally been given - after two years - it is unambiguously forthright in demolishing the arguments of the trustees, specially the latter seeking the protection of Article 26, i.e. freedom to manage religious affairs. "The right to manage the Trust cannot override the right to practise religion itself," the judgment says.
The judgment also lays down the role of the State on such matters: "The State will have to ensure protection of rights of all its citizens guaranteed under…the Constitution…to protect against discrimination based on gender.’’
The Haji Ali petition may have been filed by women, but the issue had the support of a number of Muslim men. Interestingly, a male social worker, Faridbhai Batatawala, a devout Muslim rooted in his community, went against its powerful political and religious leadership to intervene in support of the petitioners. Unfortunately, he passed away a month ago.
This judgment is important at a political level too. After the Bombay High Court upheld the right of Hindu women to enter Maharashtra's temples earlier this year, offended Hindutva types vented their anger by spouting their usual rhetoric about the impossibility of such "interference" in Muslim religious affairs in our "pseudo-secular" society. This judgment proves them wrong and demolishes once again, the myth of "Muslim appeasement".
The recent cases of women struggling to enter shrines has been disapproved of by many feminists, who feel religion per se oppresses women, and the struggle should be to discard it altogether.
However, asserting women’s right to worship in spaces prohibited by male custodians of religion is not just a matter of ensuring women’s equality in matters of faith, it is also one of breaking the male appropriation of religion.