6/4/2019 The Nizamuddin dargah PIL cannot be conflated with Sabarimala COMMENTARY / RELIGION Why a PIL on women’s entry at the Nizamuddin dargah cannot be compared to Sabarimala MOHSIN ALAM BHAT 04 June 2019 SARAVANA BHARATHI FOR THE CARAVAN On 6 Decemer 2018, three female law tudent from Pune led a pulic­interet litigation in the Delhi high court, eeking the entr of women (http://www.livelaw.in/pil­in­delhi­hc­eeking­entr­of­women­into­nizamuddin­ dargah­read­petition/) to the inner precinct of the Hazrat Nizamuddin Aulia dargah in the capital. The PIL wa led arel week after a ve­judge ench of the upreme Court lifted the an on women’ entr (http://www.upremecourtondia.nic.in/upremecourt/2006/18956/18956_2006_Judgem https://caravanmagazine.in/religion/nizamuddindargah-pil-women-entry-sabarimala 1/9 6/4/2019 The Nizamuddin dargah PIL cannot be conflated with Sabarimala ep­2018.pd) into the aarimala temple in Kerala. videntl, the aarimala judgement ha had a cacading eect (http://www.livemint.com/politic/new/c­ iue­notice­on­plea­for­entr­of­mulim­women­into­moque­ 1555441362136.html), with the upreme Court now hearing another PIL (http://arandench.com/wp­content/upload/2019/04/Mulim­women­ Moque.pd), led a Mulim couple, demanding that the prohiition on the entr of Mulim women in an moque e declared illegal in India. Hitoricall, policie of ocial reform (http://ook.google.co.in/ook? hl=en&lr=&id=8zXWCgAAQAJ&oi=fnd&pg=PR13&dq=religion+%22ocial+reform%22+te entr+india+contitution&ot=wxqdfi&ig=c5ltaIpeuMgzrx34c_MkviRkY#v=onep entr%20india%20c) have arien from the political ranche of the tate. Throughout the 1950 and the 1960, a wave of ocial­reform legilation created a tate­upervied infratructure that managed prominent religiou intitution and removed cate­ aed retriction on entr (http://ook.google.co.in/ook? hl=en&lr=&id=8zXWCgAAQAJ&oi=fnd&pg=PR13&dq=religion+%22ocial+reform%22+te entr+india+contitution&ot=wxqdfi&ig=c5ltaIpeuMgzrx34c_MkviRkY#v=onep entr%20india%20c). ut in the lat few ear, the court eem to have ecome the chief interlocutor in the ocial­reform proce, raiing enthuiam for the judicial proce a it main mode. However, there i a deep and unreolved tenion at the centre of our contitutional practice. We care aout religiou freedom—the right of individual and group to autonomoul conduct their religiou live and practice. ut our contitution alo require that we e enitive to removing the entrenched practice of uordination and domination. Thee two value are often in conict. The prolem i not that the practice of organied religion are inherentl hierarchical and excluionar. Religion dicriminate againt gender and clae to retrict acce to religiou pace or religiou oce, exclude certain ocial relation from religiou recognition and follow practice that manifet a deepl patriarchal culture. If that were the prolem, then reform would require mot of what we know a religion toda to give wa to tate intervention. https://caravanmagazine.in/religion/nizamuddindargah-pil-women-entry-sabarimala 2/9 6/4/2019 The Nizamuddin dargah PIL cannot be conflated with Sabarimala Rather, the prolem i that religiou practice in India have a material and molic impact on excluded individual and group, far eond the act of worhip. Religion in India ha conequence for people’ civic right and their right to live with dignit. The contitution­framer recognied thi and conequentl regarded religion a one of the crucial domain of reform. The contitution not onl prohiit the tate from dicriminating on the ground of cate, religion or ex, ut alo empower it to reform Hindu religiou intitution and criminalie ahorrent practice, like untouchailit. ut there are good reaon to e uital circumpect aout the court driving ocial reform. Thi i not onl ecaue ocial reform i politicall rik, a ecame evident from the reaction (http://thewire.in/politic/politic­of­aarimala­aftermath­c­ verdict) to the aarimala verdict, ut alo ecaue court mut work within the contraint of legal principle and reaoning. The mut how that the have given due regard to all the contitutional value at take, even if the are in tenion with each other, and deliver a legall tenale reult independent of the judge’ peronal view. The PIL demanding the opening of the inner anctum at the Nizamuddin dargah to women emodie thee challenge. The decendant of the u aint Muhammad Nizamuddin Aulia conduct religiou ceremonie at the dargah under the guidance of the Anjuman Peerzadgan Nizamia Khurawi Coordination Committee—an organiation compried of the direct decendant of the aint who handle the running and maintenance of the hrine. The Nizamuddin Dargah Trut—which handle the nancial aair of the hrine along with the committee—ha no power over thee cutom. While women are free to acce the hrine, the are not permitted inide the mall inner room that houe the aint’ grave. A an viitor to the hrine will tetif, thi doe not come in the wa of women participating in other facet of worhip. Women uuall it around the room, facing the anctum anctorum while oering praer. hould religiou intitution e made to repect egalitarian value in all their practice? What i the limit for tate intervention? And how hould thi conict e reolved while eing equall repectful to oth the value? The anwer to thee https://caravanmagazine.in/religion/nizamuddindargah-pil-women-entry-sabarimala 3/9 6/4/2019 The Nizamuddin dargah PIL cannot be conflated with Sabarimala quetion are contingent on the context. The legal aement of egalitarian claim in religiou practice cannot generalie, depite the temptation to do o, and mut make nuanced ditinction aed on the nature of religiou cutom and the hitorical role of tate intitution. The Nizamuddin dargah cae dier markedl from the aarimala cae. The aarimala temple i governed legilation—the Kerala Place of Pulic Worhip (Authorization of ntr) Act, 1965—which i aed, in part, on the contitutional mandate of opening Hindu place of worhip to “all ection and clae of Hindu.” Thi anti­cate value, derived from the contitution, wa meant to override all the contrar religiou cutom. Depite thi legilation, in 1991, the Kerala government paed a rule (http://indiankanoon.org/doc/1915943/) recogniing the cutom and practice that retricted women etween the age of 10 and 50 ear from worhipping at aarimala. In the aarimala cae, which challenged thi rule, the judge did not oer uniform reaoning—three opinion held the excluion uncontitutional and one dienting opinion rejected the petition. Neverthele, the underling view among the majorit opinion wa that thi excluion violated the legilative imperative of opening Hindu temple in the tate to all Hindu. Thi imperative i miing in the cae of the Nizamuddin dargah. There i neither a clear contitutional mandate of opening Mulim place of worhip to all Mulim nor a legilation that demand it. However, the aence of the legilative imperative doe not automaticall mean that the excluion i legall jutied. Ordinaril, the court are expected to enforce exiting cutom. Thi i where the oma high court’ deciion in the Haji Ali dargah cae (http://www.legallindia.com/the­ench­and­ the­ar/landmark­oma­hc­open­haji­ali­dargah­to­women­20160826­7924) appear to e ditinct from Nizamuddin. In 2014, a PIL led civil­ociet memer challenged the denial of women’ entr into Haji Ali, a moque in Mumai. The dargah adminitration aerted no cutom that arred the entr of women to the inner hrine—evidence efore the court https://caravanmagazine.in/religion/nizamuddindargah-pil-women-entry-sabarimala 4/9 6/4/2019 The Nizamuddin dargah PIL cannot be conflated with Sabarimala uggeted that women were not prohiited till a late a 2012. The dargah adminitration merel aerted that their deciion of excluion wa aed on Ilam. ince thi interpretation of Ilam wa tenuou at et, the court wa ound to ide in favour of the entr of women. Interetingl, even in the aarimala cae, ome petitioner challenged the ver exitence of the excluionar cutom on the ground of it inconitenc over the ear. Onl the judge DY Chandrachud (http://www.livelaw.in/the­aarimala­ judgment­iii­jutice­chandrachud­and­radical­equalit/) accepted thi argument and relied on it a one of hi man ground for holding the excluion illegal. Thu, the legal aement of the excluion mut ignicantl depend on the hitorical tradition and cutom in the cae of the Nizamuddin dargah, particularl it continuit and conitenc over the centurie. If the petitioner how that hitoricall, the dargah authoritie retricted the entr of women inconitentl, the high court i likel to not recognie the practice a a cutom altogether and hold the excluion to e without the authorit of law. Of coure, the mere exitence of the cutom would not necearil make it legall acceptale. The Article 25 of the contitution enumerate religiou freedom a “freedom of concience and free profeion, practice and propagation of religion,” which i uject to “pulic order, health and moralit.” The proviion alo make the freedom uject to other fundamental right a well a the need for “ocial welfare and reform.” ut the court have not alwa laid down clear and conitent guideline to govern the application of thee contitutional afeguard. For example, in an important 1962 cae (http://indiankanoon.org/doc/510078/), the upreme Court conidered a legilation that ought to prohiit the practice of excommunication among Dawoodi ohra ecaue it violated the civil right of the aected individual. Depite thi, the court held the law uncontitutional, noting that it wa neither a ocial­reform legilation nor could religiou practice e retricted on ground of protecting civil right.