Are religions above Fundamental Rights?

by Astrid Lobo Gajiwala

Mumbai: On November 29, more than 50 Muslim women and social activists entered the inner sanctum of the Haji Ali shrine which houses the tomb of the 14th century saint Sayed Peer Haji Ali Shah Bukhari.

The entry came after a ruling of the Supreme Court that questioned the ban imposed by the trustees of the dargah five years ago.

The event touches a sensitive spot – the situation of women in religion. While the second class status of women in society is openly acknowledged and addressed the discrimination against women in religions is usually excused and justified with claims of it being divinely ordained.

Thus in the case of the Haji Ali dargah the Maharashtra State Minorities Commission when initially approached by the Bharatiya Muslim Mahila Andolan (BMMA) in 2013, refused to intervene on the ground that this was a religious matter. That is why the Supreme Court ruling is a victory not just for the BMMA who fought the case or Indian Muslim women, but for all women across the globe who are fighting the male appropriation of religion.

The Haji Ali ruling comes after two other appeals to the courts by Indian women who have become tired of their requests falling on the deaf ears of male religious authorities.

Both cases involved entry into the sacred spaces of temples, one in the Shani Shingnapur temple in Maharashtra, and the other in the Sabarimala temple in Kerala. Women of menstrual age were prohibited from entering because they were considered impure.

In the Shani Shingnapur temple case activists filed a Public Interest Litigation (PIL) in the Bombay High Court arguing that such prohibition is arbitrary, illegal and in violation of the fundamental rights of citizens.

In March this year the division bench of the Bombay High Court broke a 400-year old practice by ruling that if men were granted entry to a place of worship, women should enjoy access too, and asked the Maharashtra government to ensure that women are not denied entry to any temple.

The Sabarimala temple case which is with the Supreme Court has been dragging on for a decade, and in April this year the Bench was unexpectedly changed, further slowing down the process.

Underlying these inequalities is a taboo that Hindu women in particular are all too familiar with as it forms a part of their daily existence, namely the exclusion of menstruating women from religious rituals. During family pujas the women either stay away or are segregated. Either way it is an embarrassment to the menstruating woman as those present inevitably enquire about her absence or witness her isolation.

While the Catholic Church presently has no restriction on the entry of menstruating women to Church and their full participation in religious rituals, prior to the 1983 Code of Canon Law, the “ritual uncleanliness” of women shaped official Church law for 700 years.

Menstrual blood as well as the bloodshed in childbirth was seen to make women impure. “Churching” a ritual for purifying a woman after childbirth before she could enter the church again, was strictly observed as late as the 1960s. Because their monthly periods and childbirth made them “ritually unclean” women were not allowed to serve at the altar, or read the scriptures, or distribute Holy Communion.

Understanding this background is important, for if women could not perform any of these functions, how could they preside at the altar? It would be natural for leaders of the early Church to therefore prohibit women priests. Which raises the question: Is menstruation still a subliminal reason for the ban on the ordination of Catholic women?

Now that Pope Francis has instituted a Pontifical Commission to study the possibility of introducing women deacons in the Catholic Church one hopes that the crucial role played by menstruation in the exclusion of women from ministry will be examined and conclusions drawn accordingly.

The importance of such analysis is brought home by activist Feroze Mithiborwala. Criticising the Haji Ali trustees’ compromise which now allows women and men to pray about two metres from the tomb without touching it, he says, “The solution they have found is ‘equality in discrimination’… In their minds they still believe that women are impure.”

Thus the underlying faulty premise remains unchanged, and discriminatory religious practices based on it go unchallenged.

For Indian Catholic women the triumph of their Muslim and Hindu sisters poses an interesting question: Is the exclusion of women from ordination a form of gender discrimination that can be changed through a judicial process? Can they file a PIL like their Hindu and Muslim sisters?