March 07, 2016

India: Prejudices obstruct the rights of women worshippers (editorial, Economic and Political Weekly 5 March 2016)

Economic and Political Weekly, Vol. 51, Issue No. 10, 05 Mar, 2016

The Spiritual versus the Temporal

Prejudices obstruct the rights of women worshippers.

The struggles by groups of Hindu and Muslim women to lift bans on entry into some places of worship have been in the public limelight over the past year.

In 2007, the Indian Young Lawyers Association had soughtdirection from the Supreme Court to strike down the ban on entry of women between 10 and 50 into the Sabarimala Ayyappa temple in Kerala. The media coverage of a recent round of these hearings has fuelled interest and controversy even as the Bhumata Brigade began an agitation in mid-2015 demanding that women beallowed into the inner sanctum of the Shani Shingnapur temple in Ahmednagar, Maharashtra. More or less at the same time, the Bharatiya Muslim Mahila Andolan, which has filed a petitionbefore the Bombay High Court to demand entry into the mazar of the Haji Ali dargah in Mumbai, stepped up its campaign.

The bans involve notions and norms which directly clash with ideas of modernity and are also incompatible with rights enshrined in the Constitution. The crux is what takes precedence and whether the courts have jurisdiction over customs ostensibly sanctioned by religion but which took shape in the distant past when the predominant view was that women did not enjoy equal rights. The Sabarimala temple trust forbids entry to girls and women because of the “impurity” that is claimed is attached to menstruation. (Almost all religions and many societies are guilty of stigmatising this part of a woman’s being.) The Haji Ali dargah trust allowed women up to the mazar prior to 2012 after which they were prohibited for their “own safety and security” and also because the pir whose tomb it is would be offended by the feminine presence around it. At the Shani Shingnapur temple, after an agitation, women were allowed to enter the temple in 2011 but not the place where the deity Shani’s idol is kept and prayers are held.

As legal experts point out, the matter is further compounded because India has a Constitution that enjoins duties of social reform on the state, but there is no clear demarcation between the state and religion. When a judge of the Supreme Court asked the Devaswom Trust of Sabarimala whether it had a constitutional right to bar women, the point was whether the trust could prove that the ban was an integral part of religious practice. The challengers look at Article 14 (equality before law) and Articles 25 and 26 (freedom of religion) of the Constitution for guidance. However, Article 26(b) permits religious denominations the right to manage their own affairs in the matter of religion and Article 25(2) allows state intervention in religious practice if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”. Again, the ban at Sabarimala is justified by rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 and the Government of Kerala has argued that the opinion of the priests which is in conformity with the rules is the final one. The Bombay High Court hearing of the Haji Ali petition has said it is waiting for the Supreme Court’s verdict on Sabarimala.

In an earlier case (1962), the Supreme Court held that the r­eform clause “was not intended to enable the legislature to ‘reform’ a religion out of existence or identity.” However, if the impugned practice is not an essential practice of the religion then the state has a right to intervene. A point made by legal experts is that Article 25(1) enforces the right to freedom of religion with respect to the actions of the state and not another body or individual, and the Sabarimala Trust is an autonomous body. However, it is argued that since even private parties are not allowed to infringe one another’s constitutional rights, women must be allowed to enter the Sabarimala temple.

So much for legal issues, but on grounds of gender justice the religious trusts have a duty to end discrimination. Often, the ruling dispensations which are never afraid to fish in troubled waters tend to walk the tightrope between the need to respect constitutional rights and the demands of powerful religious trusts and prejudiced public opinion. It is time that in each of the cases now under consideration the governments shed their timidity and render justice to women worshippers.
Source: URL: http://www.epw.in/journal/2016/10/editorials/spiritual-versus-temporal.html