The decision was controversial, and the trustees invoked Sharia law to justify it. In November 2014, however, the Bharatiya Muslim Mahila Andolan filed a public interest litigation before the Bombay High Court, challenging the ban. They argued that their exclusion from the tomb amounted to gender discrimination, and that sharia law could not prevail over the Constitution.
The hearings are ongoing, and the Court is expected to issue directions on April 1.
In oral arguments, the Trust’s lawyers have asked the Court to follow well-settled principles of Indian religious freedom jurisprudence, and refrain from interfering in matters of religion. The constitutional position, however, is more complex, and in this essay I will set out some of the arguments that might assist the petitioners to prevail before the Bombay High Court.
Article 25 of the Indian Constitution guarantees to all persons the right to “freely profess, practice, and propagate religion.” In a number of judgments, the Supreme Court has held that the right to worship, as well as modes of worship, are protected under Article 25.
Admittedly, it has also held that the right to worship does not extend to any and every place. However, in Ismail Faruqui vs Union of India, while holding that a mosque was not an essential and integral part of the practice of Islam, the Court also held that if a particular place had a “particular significance for that religion”, access to that place for the purposes of worship would be protected under Article 25.
It is fairly well-understood that within the sufi tradition, the dargah of a pir, and a practice of offering prayers over the grave, does hold special significance. Accordingly, if the petitioners can demonstrate to the satisfaction of the Court the religious significance of visiting and offering prayers at the shrine, they will be able to establish an Article 25 right.
But even if the petitioners cannot prove a constitutional right, the Supreme Court has held that, at the very least, the right to worship is a civil right under ordinary law, which can be enforced by a regular lawsuit. For instance, in Sardar Saifuddin vs State of Bombay, Das Gupta J. pointed out that
“a right to office or property or to worship in any religious place or a right to burial or cremation is included as a right legally enforceable by suit.”
In a separate case – in the context of Hindu denominational temples – the Court noted, in general terms, that if it is found that
“all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right.”
And if there exists a legal right to access, then there is a consequent duty upon all other persons to refrain from obstructing the exercise of that right.
The Trust's rights
What of the claim, however, that the freedom of religion allows the Trust to determine who gets access to the shrine, in accordance with the tenets of Islam? What of the Trust’s own religious rights?
In fact, Article 26 of the Constitution expressly grants to religious denominations the right to manage their own affairs in matters of religion, and to establish and maintain institutions for religious and charitable purposes. Here, however, it is important to note that insofar as Articles 25 and 26 protect not just matters of doctrine or belief, but also acts done in pursuance of religion (such as, allegedly, the act of excluding women from the shrine), the Supreme Court has held that such protection is restricted to
“rituals and observances, ceremonies and modes of worship which are integral [or essential] parts of religion.”
The logic of this argument was explained by Dr. Ambedkar in the Constituent Assembly Debates. He pointed out that in India, the influence of religion was so great, that unless constitutional protection was limited to essentially religious practices, it would retain an unconscionably large hold upon peoples’ lives from cradle to the grave. The distinction, in turn, was explained by Justice Sinha, in his dissenting opinion (although not on this point) in Sardar Saifuddin vs State of Bombay. He noted:
“We have therefore, to draw a line of demarcation between practices consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practices in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.”
Essential religious practice
Consequently, strength or force of the Dargah Trust’s right to exclude women from the inner sanctum would depend upon whether controlling access to the sanctum amounts to an “essential religious practice”. According to the Supreme Court, “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion”, and is to be determined, in the last instance, by the courts.
To answer this question, courts have examined the foundational texts of a religion, as well as customary practices. For instance, in Ram Prasad Seth vs State of UP, the Allahabad High Court analysed extracts from the Manusmriti, the Dattak Mimamsa etc., in order to find that polygamy was not an essential part of Hindu religion. In cases involving Islam, the Courts have consulted the Qur’an and its suras. For example, in Mohd. Hanif Qureshi vs State of Bihar, the Supreme Court relied upon the Quran to hold that sacrificing a cow on Bakr’id was not an essential part of the Islamic religion.
In this case, there are two crucial facts that indicate that the exclusion of women from the inner sanctum of the dargah is not an essential religious practice.
The petitioners have pointed out that the Qur’an and the Hadith, which list the core of the practices and beliefs that constitute Islam (that is, according to the Supreme Court), do not prescribe the exclusion of women from places of worship – in fact, quite the contrary.
And secondly, as the petitioners have also demonstrated, a significant number of the dargahs surveyed by them across the city of Bombay, do not restrict women’s access to the inner sanctum.
This argument is buttressed by the fact that the Trust has made three arguments to support its exclusion of women from the inner sanctum. Apart from the argument that it is required by Islam (which has been rebutted above), it has also been argued that because women “are inappropriately dressed“; and that this step is being taken for their safety and security (and their “chastity”). It is clear that neither of these two reasons are “essentially religious” in nature.
Consequently, it may be argued that the exclusion of women from the inner sanctum is neither sanctioned by the judicially-sanctioned authoritative sources of Islamic religious doctrine, nor by the present practices of a majority of dargah administrations.
On the other hand, there seems to be enough evidence to establish that the petitioners have a fundamental right (or, at least, a legal, civil right) to offer prayers at the dargah tomb.
Now, once the petitioners’ right is established, the Supreme Court has held that in such cases, the onus lies upon the State officials to effectuate that right by ensuring that its exercise is not obstructed by private parties (such as the Trust functionaries).
Therefore, on legal and constitutional grounds, there are good arguments that the PIL should succeed. The petitioners have a fundamental right to access the tomb and the inner sanctum of the dargah. The respondents have no equivalent right to exclude them.
Contrary to their claims, under the existing position of law, the Court would not be “interfering in a religious matter” if it was to order access. Consequently, the Court ought to direct the relevant state authorities to ensure that the petitioners are allowed to exercise their fundamental rights, including the right of access and prayer.
Gautam Bhatia – @gautambhatia88 on Twitter – is a 2011 graduate of the National Law School of India University, who presently works at the Delhi High Court. He blogs about the Indian Constitution at http://indconlawphil. wordpress.com
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