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Watch out for these 3 cases involving different "daughters" of India

Saurav Datta | Updated on: 14 February 2017, 5:37 IST

The cases

  • Courts are hearing the cases related to women\'s entry in Haji Ali & Sabarimala
  • Another important case being heart is the ban on Leslie Udwin\'s India\'s Daughter
  • All the 3 cases involve crucial issues of fundamental rights and the limits of judicial and governmental intervention

More in the story

  • The details of the cases
  • What is at stake?
  • The choices before the judiciary

Update on 1 April: On Friday, the Maharashtra government said before the Bombay High court that it would ensure women are not barred from entering temples like Ahmednagar's Shani Shingnapur. The government, however, seems to be making a distinction between Hindu and Muslim women: In a previous case regarding women's entry into Haji Ali Dargah, it said it would not interfere with customs "essential to the practices of religion".

Here's a Catch story highlighting our policy ambivalence.

Three separate battles against "bans" are going on in 3 different courts in India. Each case involves a question of fundamental rights and the extent of governmental and judicial power.

Two of these litigations focus on one issue: women's entry into temples and other places of worship.

Also read - Shani Shingnapur: women on the warpath demanding their right to worship

The Bombay High Court is hearing a writ petition by Dr Noorjehan Safiya Niaz founder of the Bharatiya Muslim Mahila Andolan. She has challenged Mumbai Haji Ali Dargah Committee's decision not to allow women entry into the innermost sanctum of the shrine.

A case before the Supreme Court has a similar premise, the difference is that it involves a Hindu temple.

A group of lawyers has challenged a centuries old tradition of Kerala's Sabarimala temple of not prohibiting the entry of women aged between 10-50 years. The reason given is that their "touching" the idol of Lord Ayyappa amounts to "desecrating" him.

The third case involves the Union government's ban on British documentary-maker Leslie Udwin's India's Daughter, based on the 2012 Delhi gangrape.

The prime reason cited for the ban is that "the documentary tarnishes India's reputation in the eyes of the world". There are other grounds as well - that Udwin had flouted prison rules while shooting for her film and had endangered prisoners' right to a fair trial.

In all these cases, there are 3 issues at stake.

Governments' ambivalence on fundamental rights

The Maharashtra and Kerala governments have taken contradictory stances in the Haji Ali and Sabarimala cases respectively.

In the hearing on 9 February, Maharashtra's Advocate General is reported to have orally submitted that since the Constitution enshrines the right to equality as a fundamental right, the government supports women's entry into the Haji Ali Dargah.

However, he added a caveat - that if the case involves an issue which is essential, and not peripheral to the practice of Islam, the government would stay away because Articles 25 and 26 of the Constitution gives minorities the fundamental right against governmental interference in religious matters.

In its affidavit before the Supreme Court, the Kerala government has invoked Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. It bans the entry of women in places of worship if they are not allowed by custom. The Kerala High Court had upheld the ban in 1991 and directed the Devaswom Board to implement it.

The government, like its Maharashtra counterpart has also invoked the "essential practices test" and claimed that it is constitutionally barred from interfering in matters of religion.

Fundamental rights versus judicial restraint

Two fundamental rights are clashing in the 2 cases related to women's entry in places of worship. One is the freedom of religion, as mentioned above. The other is women's fundamental right to worship and not be barred from entering a place of worship.

On the face of it, it appears unconscionable that religious leaders subject women to discrimination citing reasons such as their being "unclean" or that their presence in a shrine would desecrate the deitly.

At the same time, it is also undeniable that freedom of religion remains a very a vital right, especially in India. Moreover, when it comes to the freedom of religion for minorities, matters get quite politically fraught.

This puts the judiciary in a difficult spot, and that's why the "essential practices test" assumes relevance. This test, laid down by the Supreme Court in a 1954 judgment, means that the judiciary would have the power to determine which practices, rules, traditions and customs are not integral to the practice of a religion.

Kerala and Maharashtra govts have taken different stands in the Sabarimala & Haji Ali cases

This test has been routinely criticised by constitutional scholars who believe that judges should hold themselves back from donning the mantle of theologians and clerics.

But at the same time, the courts are faced with a conundrum - if in Haji Ali and Sabarimala cases the judges exercise restraint, what happens to the judiciary's power (and duty) to bring about social reform? This duty becomes all the more critical when religious leaders remain obdurate in practising gender-discrimination.

Going slow against wrongful government censorship

While in the Haji Ali and Sabarimala cases, the judiciary, so far, has been seen to take a proactive role and grill governments, in the case of Udwin's documentary, the court has been reluctant to intervene. The government on its part is dragging its feet and pleading for more time to defend its stance.

The ban was imposed in March last year, and has been criticised as being unconscionable and an act of illegal censorship. However, Senior Advocate and Former Additional Solicitor General Indira Jaising has strongly contended that the documentary violated the law and the ban should remain.

Two fundamental rights are clashing in the 2 cases related to women's entry in places of worship

So, when the issue is so polarised, and at its heart is the fundamental right to freedom of expression, the court ought to have acted with more speed. But the Delhi High Court keeps refusing to even adjudicate upon the ban, and the case has been pending since March last year.

Tuesday's hearing lasted only 15 minutes, the government pleaded for more time, and the case has been pushed back even further.

All these 3 'ban battles' are hot-button political issues whose resolution would also have significant constitutional and jurisprudential consequences.

More in Catch - #Sabarimala: who needs a change in mindset, temple or docile devotees?

United for a cause: Muslim group backs Hindu women in Shani Shingnapur temple row

Taking the Sharia to court: 2 Muslim women you should know about

First published: 1 April 2016, 6:18 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.