Dramatic U-turn
8 Nov 2016 9:40 PM GMT
In a dramatic U-turn, the Left Democratic Front government of Kerala informed the apex court on Monday that it favoured the entry of women of all age groups in the historic Sabarimala temple in the state. The previous UDF government had backed the temple authorities. In its submission to the court, the Kerala administration said that it will now go to its original response filed in 2007 favouring entry of women in the temple premises. By not pandering to conservatives, the government has taken a position in sync with modern democratic principles.
Comparisons between the Sabarimala case and the recent judgment on the entry of women into the inner sanctum of the Haji Ali Dargah exist due to the strong thematic similarities. “Parallels might be drawn with the ongoing litigation in the Supreme Court, about the access of women to the Sabarimala shrine. This would be a mistake – precisely because of its narrow, legal character, the Bombay High Court’s judgment and reasoning are limited to the facts of this case.
Although the questions will remain of a similar nature (can the trustees of Sabarimala demonstrate a religious mandate in favour excluding women? What is the character of the temple administration? The answers might be different,” according to Gautam Bhatia, a noted commentator on legal affairs. But legal questions of similar nature remain, and we must look back and understand how the Bombay High Court adjudicated on the Haji Ali Dargah case. Back in August, the Bombay High Court had found that preventing women from entering the dargah is in contravention of Articles 14, 15, 19, and 25 of the Indian Constitution, which deals with the right to equality, the right against discrimination based on gender, freedom of movement and freedom of religion.
At the heart of the matter was a clash between two provisions stated in the Constitution. Under Article 25 (1) of the Constitution, all citizens are guaranteed the right to “freely profess, practice, and propagate religion”. However, under Article 26 (b), every religious denomination has the “right to manage its affairs in matters of religion”. The women excluded from the inner sanctum of the dargah claimed that the religious body had violated their fundamental right under Article 25 (1).
Meanwhile, the Dargah Trust had argued that since Islam instructed the exclusion of women from the inner sanctum of dargahs, its actions were protected by Article 25 (1). The court took cognizance of the material placed on record by the Dargah authorities, which included excerpts from the Quran and Hadith. In its final adjudication, the court found that none of the material placed on record instructed that the dargah authorities cannot exclude women from the inner sanctum.
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