Podcast – Right against Gender Discrimination in the realm of Religious Practise – in conversation with Zakia Soman

Alternative Law Forum · Gender Discrimination in the realm of religious practise – In Conversation with Zakia Soman –
ALF presents a podcast about the right against gender discrimination in the realm of religious practise. The discussion focusses on the Sabarimala judgement, the Haji Ali Dargah case, the Triple Talaq case, and their impact on gender rights struggles vis-a-vis religious communities. Scroll down to read the full transcript of the podcast.
This podcast is a part of our efforts to create a contemporary live archive on discrimination. On this contemporary live archive, we will be creating resources to understand and meaningfully engage with discrimination through the lens of law as well as spark conversations.

 

Listen to this podcast in which Mohammed Afeef is in conversation with Zakia Soman, cofounder of the Bharatiya Muslim Mahila Andolan, an organization working for Muslim women’s citizenship rights and gender justice within Islam.

 

She is also the founder of Centre for Peace Studies hosted by Action Aid Association which is engaged in policy activism in peace and justice, religious tolerance, pluralism and the rights of minorities. She also serves on the India core committee of SAAPE (South Asian Alliance for Poverty Eradication) that engages in issues of poverty regionally across different South Asian countries. Zakiaji also works on, represents and writes about issues concerning women’s rights in major publications as well as issues of human rights, pluralism, religious tolerance, diversity at both national and global platforms.

 

Full Transcript

Afeef Good evening folks

 

Welcome to the Anti-Discrimination Series and Archive.

Today’s topic is the Right against Gender discrimination in the realm of religious practice.

The reason we are discussing this today is because of 28th September, 2018 – we are commemorating the Sabarimala verdict wherein Supreme Court judges (in a 4-1 split), struck down the practise of prohibiting women between the ages of 10 and 50 and held this to be unconstitutional.

 

 The reason we think this is a very important and significant judgement, is not only in terms of its outcome, but in terms of its jurisprudence and the effect that it will have in various women’s struggles especially in the realm of religious practices.

 

This is a part and parcel of our series of documenting the intersections between legal struggles and social struggles – law and social movements – and their contributions to how far we have come ahead in developing anti-discrimination and building a more equal and more just society.

 

I am Mohammed Afeef and I am a practicing advocate in Alternative Law Forum. My areas of practice include family law, service & labour law, constitutional litigation and public interest litigation.

 

I am very happy to be here and it is a great pleasure to have with us Zakia Soman, cofounder of the Bharatiya Muslim Mahila Andolan, an organization working for Muslim women’s citizenship rights and gender justice within Islam. She is also the founder of Centre for Peace Studies hosted by Action Aid Association which is engaged in policy activism in peace and justice, religious tolerance, pluralism and the rights of minorities. She also serves on the India core committee of SAAPE (South Asian Alliance for Poverty Eradication) that engages in issues of poverty regionally across different South Asian countries. Zakiaji also works on, represents and writes about issues concerning women’s rights in major publications as well as issues of human rights, pluralism, religious tolerance, diversity at both national and global platforms.

 

She was one of the petitioners in the Triple Talaq matter – the Shayara Bano Case in the Supreme Court and campaigned extensively for its abolition. On August 22, 2017, the SC finally set aside the Triple Talaq practice. She was also part of the litigation for women’s entry in the inner sanctum of the Haji Ali mazar in the Bombay High Court in 2016.

 

Thank you Zakiaji and welcome!

 

Maybe Ill start by asking Zakiaji to speak a little about the Bharatiya Muslim Mahila Andolan.

Zakiaji Hi Afeef. Thanks for having me.

 

Bharatiya Muslim Mahila Andolan is a body of Muslim women fighting for justice and equality for Muslim women and the entire Muslim community. It is a democratic membership-based organization led by women, for women but also working in coordination and with the support of those who are not women – that is men. 

 

Majority of our members are Muslim women but we have members from different faiths as well. We focus on citizenship rights and mainly education, livelihoods, health, law reform and also building a just and peaceful society because as per the Constitution of India, all of us are equal citizens in this country.

 

We also work for gender justice in Islam, focusing on the rights given to Muslim women by the Quran, the principles of justice and equality which emanate from the text. We try to make them a reality. It is a tall task, but we work towards that. We have been around for more than 15 years and we hope to keep on contributing in the social change processes.

Afeef Thank you so much Zakiaji.

 

I would start off by highlighting the key aspects of the judgement before we set the conversation in motion.

 

On 28 September 2018, the Supreme Court by a majority of 4 judges to 1, held that the Sabarimala temple’s practice of barring entry of women between the ages of 10 and 50 was unconstitutional.

 

It is important to note that this law was affirmed by ancient custom and secondly and crucially, it was affirmed by a rule framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Rule 3 provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” Moreover, there was a notification by a statutory body (the Devaswom Board) that was given the task of managing the Sabarimala temple.

 

This discrimination was part of law and handled by a statutory body. This is important – and I will come back to it later.

 

The majority held the practice to be discriminatory because

 

(1)   It denied access to a place of worship to a class of citizens – women between the ages of 10 and 50 – and disallowed that class to exercise their freedom of religion as a citizen.

(2)   This discrimination was based on a biological justification, ie, menstruation (hence the ages 10 to 50).

 

Such a limitation was held to be arbitrary and it violates Articles 14, 15 and 25 as they were also based on stereotypes.

 

I will speak for about two minutes about what articles were analysed, and how they played a part in the jurisprudence.

Article 14 talks about the Right to Equality – ‘The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.’

Article 15 says ‘The State shall not discriminate against any citizen on grounds only of

religion, race, caste, sex, place of birth or any of them.’

Article 25 becomes extremely important, especially in the realm of religious freedoms. It states that subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to

profess, practise and propagate religion.

 

Nothing in this article shall affect the operation of any existing law or prevent the State

from making any law—

(a)regulating or restricting any economic, financial, political or other secular activity which

may be associated with religious practice;

(b)providing for social welfare and reform or the throwing open of Hindu religious

institutions of a public character to all classes and sections of Hindus.

 

Article 26 also becomes very important because it holds that subject to public order, morality and health, every religious denomination or

any section thereof shall have the right—

(a) to establish and maintain institutions for religious and charitable purposes; (b) to

manage its own affairs in matters of religion

(b) and this is the crucial point – to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law

 

The heart of the conflict here in the Sabarimala verdict is – the constitution gives us two sets of rights: Group Rights & Individuals rights. Article 14 is a right given to an individual. In Article 15 too, the imagination is that of the right of an individual. Article 25 can be read to be both a group right and an individual right. And Article 26 is a right given to religious denominations only – a group right. That means you have the right as a group to manage your own internal affairs – which is a right against intervention by the state.

 

This becomes very important, because here the state is intervening to prohibit a certain kind of discrimination. Before I continue, I would like to state the current status of the case.

 

The current status of the case is that this verdict has not achieved finality because a review petition was filed after the Sabarimala judgement and by a 3-2 split, the majority of judges referred certain questions of law which will of course affect this case as well as all religious communities with respect to the question of discrimination to a 9-judge bench. There are 9 questions, very fundamental questions, which will affect so much of discrimination within religion. For example, what is the interplay between religious freedom and rights of religious denomination under Article 26 of the Constitution? Whether religious denominations are subject to fundamental rights as per Article 26. Definitions of morality under Article 25 & 26. What is the ambit of judicial review under Article 25? And finally, an important point connected to Justice Indu Malhotra’s dissent – whether a person belonging to a religious group can question the practices of another religious group through a PIL. This is a very important point, which we will come back to.

 

Coming back to the Sabarimala judgement, the judges had to decide primarily 2 questions:

  Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to discrimination and thereby violates these articles I have previously mentioned?

  Whether the practice of excluding such women constitutes an essential religious practice under Article 25 and 26 read together? If yes, can such a practice discriminate against one of the constituenc within the faith?

 

CJI Misra and Justice Khanwilkar held that the devotees of Aiyappa do not constitute a separate religious denomination because they do not have any tenets that are peculiar to themselves which are uncommon than the general Hindu religion. Therefore, there was no conflict itself. If you are not a religious denomination, you cannot claim the right against intervention.

 

Secondly, they held that the practice of exclusion in question is not an essential practice as non-observance will not change or alter the nature of Hindu religion. That is also very important.

 

Thirdly, they held that Article 25, that gives us all the right to profess our faith and religious practices, begins with ‘all persons’. Which means that the freedom of conscience and the right to freely profess, practice and propagate religion is available to all, equally including women. Therefore any entity within that religious community cannot stop a class from entering a place of worship.

 

Justice Nariman also upheld that and also went a step ahead because Article 25 (2), which was part of temple entry reform movement, opened temples to all Hindus and all classes within Hindus – this includes women.

 

According to me, one of the reasons why this judgement was a very powerful one was because of Justice Chandrachud’s judgement, which was the longest of the 4. It completely bases itself on the idea of the transformative Constitution. Justice Chandrachud takes a step further ahead – he didn’t need to do this to technically decide this dispute – he goes ahead to build a pathbreaking equality jurisprudence, which will open up debates in terms of contesting patriarchal and discriminatory practices within religions. This is the reason why it was an important judgement. He refers to the South African notion of Transformative Constitution – “A transformative vision would require

 

a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality…”

 

Why this is significant is because our Constitution has the definition of state under Article 12 and law under Article 13. The imagination of our Constitution was largely that you need to be protected by the state or you need to be provided something by the state – through our Fundamental rights chapter and DPSP. However, there is some room, in terms of Article 15 & 17, “Does it protect us from institutions that are traditionally non-state? Could be religious communities or institutions. The source of patriarchy may not necessarily be the state, it could be institutional patriarchy, communitarian patriarchy etc. Does the state protect us from that?

 

Justice Chandrachud’s answer to that is yes. The state does protect.

 

The basis for the justification for prohibiting women between the ages of 10 and 50 were three-fold:

1. women cannot keep the vratham (vow) as they can cause deviation from celibacy (Nashtika Brahmachari)

2. Menstruating women are impure during the time period, hence can cause impurity either through their touch or even presence.

3. That since the pilgrimage is an arduous task, women being essentially weak cannot  complete it. And therefore should be encouraged to pray to Lord Aiyappa elsewhere.

 

So Justice Chandrachud reiterates 2 principles: Anti-stereotyping principle

 

The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings.

 

He then quotes the Navtej Singh Johar judgement to refer to the anti-stereotyping principle –

A discrimination will not survive constitutional scrutiny when it is grounded in and

perpetuates stereotypes about a class constituted by the grounds prohibited in Article 15(1)…… If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate.

 

Your discrimination may be intelligible for a particular purpose. You can classify people into categories and treat them differently. But that differentiation cannot be based on stereotypes and discrimination.

 

That is the essence of J. Chandrachud’s judgement.

 

Now note that this doesn’t mean that simply holding such beliefs is unconstitutional. Many opponents of this judgement hold that, “You are entering into my realm of thought. You are entering into my realm of belief. How can you do that?”

 

It is only when these reasons, for example, pollution, principles with respect to menstruation, anti-discrimination based on stereotypes of weakness – When these reasons become law under Article 13, only then it can be struck down. This is the limitation pointed out by J. Chandrachud.

 

This judgement does not overrule one of the important cases – Narsu Appu Mali – in Bombay HC – which holds personal law and religious customs cannot be subject to fundamental rights. 

 

Subsequently, when you want to challenge any practice – eg. The Shayara Bano case was challenged on the basis of Islamic law, on the basis that it does not fulfill the tests within Islamic law. But because of Narasu Appu Mali, today discriminatory customs which are not affirmed by a statutory body cannot be challenged.

 

J. Chandrachud argues against this and builds a path by saying that this needs to go because:

 

Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution.

 

 And finally, the anti-exclusion principle, which holds that the question comes – there is an argument which is made – can the state intervene in such situations, especially in a religious practice – how far can the state intervene? There is some basis in the Constitution that gives some kind of group autonomy.

 

Instead of the essential religious practices, J. Chandrachud proposes the anti exclusion principle.

 

“…that the state and the Court must respect the integrity of religious group life except where the practices in question lead to the exclusion of individuals from economic, social or cultural life in a manner that impairs their dignity, or hampers their access to basic goods.”

 

This is the kind of jurisprudence that was built by J. Chandrachud. Although this is not the established law, it is perhaps the proposed jurisprudence. It is not the majority of judges holding this. It is just J. Chandrachud holding this.

 

This is a kind of opening up of jurisprudence where discrimination by religious communities by their own people can be challenged in court on the basis of Constitutional principles.

 

Justice Indu Malhotra’s dissent – the only woman judge in the bench was the one who dissented against this and who did not hold this practice to be unconstitutional – for very serious reasons, for reasons that need to be taken seriously – because it is not as straightforward.

 

Firstly she holds that the devotees of Aiyappa at Sabarimala are a religious denomination. It holds that it is an essential religious practice. But the most important thing is that – Indian Youth Lawyers Association and other women’s rights groups who are not devotees of Aiyappa challenged this.

 

Her point is that neither of these are devotees of Aiyappa. How can someone outside the faith come and challenge a practice within the faith. She goes on to warn us that this issue of maintainability and locus – who is challenging this? Who is questioning this? – is not a mere technicality.

 

It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.”

 

The petitioners who challenged it have no stake in the matter who are just in some senses attacking this for whatever purpose.

 

With this I conclude the key aspects of the judgement. Now we can open up this conversation by inviting Zakiaji to share her comments on the judgement and also ask her to compare this to the Haji Ali Dargah case in which she was involved.

Zakiaji Afeef, very interesting – the way you put forward a small summary of the judgement.

 

So when I look at the Haji Ali judgement, there are several similarities between both cases.  But one major difference – which came very handy for us in the Haji Ali matter – that till 2011, women were allowed entry into the mazar of Haji Ali.

 

Somehow this new wisdom about women being sinful, and women being dirty because they menstruate, sprung up sometime in 2012. They prevented women from 2012 onwards.

 

Our task became easier because we said that we could not have turned unholy and dirty all of a sudden. If I was clean till 2011 and my entry was not sinful – so that was the point of our departure.

 

Lot of commonalities between the two.

 

In an overarching manner, it springs from patriarchy. It springs from the whole question of authority in religion. Which is almost 100% male dominated in our country, irrespective of which religious denomination we are talking about.

 

The reasons provided by Haji Ali trust to prevent our entry into the mazar was very much similar to the reasoning provided by the Sabarimala trust. Haji Ali trust said that it is a sin and they produced a lot of evidence by way of Hadiths that it is a sin. We know that there are all kinds of hadiths – there are wrong hadiths and right hadiths. They also brought out the whole thing that it is a sin to allow women to go there.

 

They also brought in that menstruation makes them dirty. It interferes with the sanctity of the mazar, of the peer lying there. They also said that when women come, they bow at the mazar, the way they are dressed distracts men – thereby leading to men harassing them. So it is to protect women that we are barring them. Just like the third argument in the Sabarimala case – about it being too arduous of a journey. These arguments are common.

 

Of course they didn’t stand any ground under Constitutional scrutiny. These arguments are arbitrary and patriarchal. In Haji Ali case also the court brought in Article 14 & 15, and said that this is clearly a case of discrimination, violating the right to equality of women believers and followers of the shrine. They also elaborately discussed Art 25 & 26 and concluded that it is not an essential practice or an integral part of the religion. Therefore, nothing is lost if women are allowed to enter.

 

The court said that since the dargah is a public place, and Haji ali is a public charitable trust, you cannot discriminate on accounts of gender or in any other way.

 

But you know, as you were speaking, I was also thinking about this – we need to look at this Article 25, which loosely translates to the right to religious freedom. And right to religious freedom is given to all citizens of India irrespective of their gender or faith or any other background.

 

But nowhere does it say in all the clauses and sub clauses of the Article, that here male citizens will have primacy over female citizens. How do religious institutions, cutting across all religions, appropriate this right to themselves? How do they misinterpret Article 25 as the right given to male citizens to decide the fate of the women as far as all matters religious? It is closely linked to the question of authority. In our south Asian societies across the subcontinent, male is superior and female is second class. We sort of appropriate all authority the males. And they are the ones who lay down the rules, frame the policy, part of administering the places of worship. This needs to be resolved in our country.

 

It is very welcome, what J. Chandrachud has said, that it is the transformative principles of the constitution. It needs to translate to reality. Left to themselves, our religious male bodies will always invent new reasons to deny and discriminate against women. This discrimination has happened to women, to Dalits, to those from “low caste backgrounds” or other backgrounds.

 

So it is very important that it is stopped summarily in each and every place.

 

A dissimilarity is that we were aggrieved women ourselves. Even I went to Haji Ali in 2010, right up to the mazar. But some of us went in 2012, I was not there that time, when they were stopped and told that they could not come any further.

 

Very importantly, and this is not a well-known fact, so I will share it here – It is not as though we jumped at litigation in the first instance. This discrimination, we noticed in 2012, it was only well into late 2014 that we filed the petition. We spent close to 2 and half years trying to dialogue with the trust, trying to talk to them and get it resolved and get them to go back to status quo which was prevalent till 2011. We wrote them so many letters, and they accepted our first letter. They did not respond, and after that they stopped taking our letters. After that we wrote to the State Women’s Commission, the State Minorities’ Commission. In fact one of the functionaries of the Social Welfare Department in State of Maharashtra even convened a meeting where all of us were present but nobody from the Haji Ali trust was present.

 

So we tried to do a lot of negotiation and dialogue to get it resolved. If we could make them see that it was an error on their part, then no harm in withdrawing this rule and restoring the status quo which was prevalent till 2011. But when they refused to talk to us that is when all our women across all states – we made it an all India issue. We went to all our women in 15 states to say that we have been trying for a 2 and half years, you all have been signatories to so many campaigns we have done. But the trust doesn’t think it to be important to talk to us because we are nobodies. We are not stakeholders. They feel that they are in the right to decide and that they are not answerable to us.

 

So then, through a lot of deliberations and consultations, women said that if they are not listening to us, then we have to teach them what is the law of the land and that we must take them to court.

 

It is only then we went to court. I remember when we first filed the petition, there was a different bench. Justice Dharmadhikari was there. So the first reaction was – Convince us as to why we should admit your petition. Fortunately, we had saved the letters rejected, the minutes of our state meetings and a lot of paperwork which we shared with the court. They were happy to admit our petition.

 

After that it was a lot of arbitrary, laughable and humbug-like arguments from the trust and their lawyers. The bench themselves were convinced that what the women are seeking are very bonafide and constitutionally valid. After that our task became easy and of course we won.

 

They then decided to challenge it in Supreme Court. There also they were told by the CJI – You are already looking quite bad – with the Bombay HC judgement, which is quite clear. Do you want to continue this? Then some sense prevailed in the senior counsel who is a very well known learned lawyer. Better sense prevailed and they withdrew.

Afeef Thank you Zakiaji for that very interesting bit. Especially about the movement and how the courts came together.

 

I would like to ask – what has been the consequence of the decision? Has there been any resistance? Can women freely go? What do you feel?

Zakiaji A few days after the judgement we all went in large numbers, around 300 of us. They received us very well and they offered us tea and also said that if you had informed us that you are coming, we would have arranged for lunch. We sat there, we did the qawwali. So it was quite cordial after that. But they have built a kind of elaborate border outside the mazar. So men and women are supposed to wait outside that border. Only the muzawars are allowed inside the boundary. That was very smart on their part. But we didn’t take it up. It was their way to “save their face”. But now in principle, women and men are both allowed till a common point. There is no discrimination in that sense – technically speaking.

 

Our purpose was also that – see there are several faces of Islam. One of the most humane faces of Islam is Sufi Islam. Sufi shrines all over – be it Nizamuddin, Ajmer Sharif or Haji Ali – they are not meant only for Muslims but people of all faiths. Because it is a place where people get in touch with themselves, for soul searching, spirituality – whatever you may call it. So we felt that if the liberal face of Islam, the humane face of Islam gets marred like this, with discrimination – today they are stopping women, tomorrow they will say that only Sunni muslims can come and then after that they can say no non-muslim can come. So the discrimination can always increase and it has to be challenged. When we failed to resolve it by dialogue, we were forced to take the legal route as I said.

Afeef Thank you Zakiaji.

 

How would you see J. Indu Malhotra’s dissent? Although in your case, it was muslim women only who were the petitioners. Immediately after the Sabarimala judgement, very interestingly, in Kerala High Court a petition was filed by a Hindu right wing group seeking entry of women in mosques. How would you analyse that? The petition was rejected because – I am not too sure who the respondents were – I think it was members from different masjid committees – who said that women are allowed to enter. Technically in Islam there is no bar for women to enter mosques; it just needs to be segregated.

 

How do you see this?

Zakiaji I agree with the part where she (Indu Malhotra) says that it is most likely to be used against minorities.  And what you just said is an example of that, Afeef. Because we are already a misogynist society, a patriarchal society. And now we have heightened demention of religion – politicised religion which is added up to it – where every right winger is ready to jump and protect Muslim women, while he might be the most oppressive in his own family and his own community. This is happening all over. So I kind of get what J. Indu Malhotra is saying – it is almost a settling of scores between religious communities in a highly politically charged and religiously polarized atmosphere, chances are that it will be misused against the minorities. That fear is very real.

 

I must say this on record that the affidavit filed by the Centre in the triple talaq matter, is a very appropriate affidavit, constitutionally speaking. That instant triple talaq is not validated by the Quran – that affidavit was very welcome. But we do not see the same kind of activism or enthusiasm by the Centre to support women when it comes to the Sabarimala matter.

 

The political considerations and trying to appease your own vote banks – although BJP has always accused Congress of appeasing Muslims. Here the BJP is trying appease right-ist Hindus, not ordinary Hindus. I believe that ordinary Hindus, like ordinary Muslims and Christians and all ordinary Indians are not into politics and are secular. Even though they might be religious in personal lives, they are not against the practices of other religions.

 

Political parties, when they look at their vote banks and political gains, start playing this kind of politics which we see in Sabarimala.

 

Women’s rights and women’s equality are not fights that can be fought in compartments. Either a political party is for women’s rights & women’s equality, or it is not. But in today’s times we see that political parties adopt very convenient positions – like the BJP has done in Triple talaq.

Afeef Thank you Zakiaji.

 

Another thing that came to my mind is that much of theology was driven and completely dominated by men.  Any knowledge protection within that theology has an instinctive bias as a result of that. Coming back to the essential religious test, and why this should go – this is just a comment – the essential religious test forces judges to analyse theology. They have to pick a dominant tradition which says that whether this is an essential practice or not. This becomes extremely problematic. On the other hand the solution given by J. Chandrachud – the anti exclusion principle – as opposed to the essential religious practices test – which says that ‘Only in a situation where a religious community or institution is marginalizing individuals out of social economic or political rights within that religious framework’, only then the state can intervene.

 

It is also apprehensive whether this test will be applied correctly in the future. Do you have anything to comment on this?

Zakiaji Yes, that is why it is very important that the demand for reform should come from within. It should be the Muslim women and Muslim men or the Hindu women and Hindu men who should be the ones to demand changes.

We should take back authority from the hands of religious male bodies who have institutionalized religion. Places of worship with such vested interest have become such lucrative bodies. There is a lot of earning coming in from the devotees. Look at all the big temples, the big shrines, big places of worship – their revenue in hundreds and thousands of crores.

 

It is also about public good. And about accountability to the public. So it is important that the demand for reform comes from within. And more and more young women and men – it can be lawyers, or any other young women and men, we should start demanding change, accountability. The fight has to be initiated by women, because they are the ones being discriminated against. But everyone else has to join the fight. The men have to support it. Political parties who profess to be believing in constitutional values should take a principled stand and an ethical stand.

 

So when the movement against triple talaq was happening, there were a lot of people who were not supporting it and they started saying that it should come from within. We started challenging them – aren’t women part of the community? When women are demanding, isn’t it a demand from within? So it has to be a continuous and democratic battle, Afeef.

It is not easy and it has to be a long term work. It cannot happen very fast. But it has to begin somewhere.

Afeef Just to shift the focus a little bit from “law” law, towards the movement, how do you see the role of various women’s movements in seeking equality especially in the realm of religious practice and entry into religious places of worship. What is the debate within the feminist movement in India regarding this question? For example, amongst our colleagues within the feminist movement, who argue that places of religious worship are doomed to be patriarchal – they should be completely boycotted. How would you respond to that – since you are working within religious traditions and outside it also.
Zakiaji This is very important for anybody engaged in the process of social change. The thing is that – allow me to say it, this is my personal view – the women’s movement has been confined to the upper echelons of society. It can be Department of Women’s Studies, women of upper castes, women of middle and upper class background in cities. It has remained confined to that, it has not gone to women who are living in the mohallas, the slums, smaller villages or towns.

 

My second point is that it is a type of escapism to say that places of religious worship will always be patriarchal and we cannot hope for anything. This escapism on our part perfectly suits the male religious bodies who want to preserve the hegemony and their prerogative over all matters religion.

 

The third point is that the ordinary Indian woman, be she Hindu, be she Muslim, be she Christian, be she from any faith background – the ordinary Indian woman is religious. More important than the fact that she is religious, (or equally important is the fact) that her subjugation, or all kinds of discrimination in family, in community in society, or in the larger world, is justified in the name of religion.

 

I see that a true feminist has no option but to enter the realm of religion, question the conservative patriarchal male authority, appropriate religion back from them. Without that we cannot fight patriarchy. Without that ordinary Indian women cannot attain equality and justice.

 

My fourth and most important point is that the right to religious freedom is a right granted by the Constitution to all citizens, including female citizens. So why this hesitation in engaging with that right when it comes to women? We cannot take away from an ordinary Indian woman, her faith, her belief, nor can we take away a right which has been granted to her by the constitution of India.

 

Every which way it is absolutely imperative to engage with religion on the side of gender justice, humanity and to appropriate religious practises and culture that is propagated in the name of religion. It is very important to appropriate this from the conservative misogynist male bodies across all religions.  

Afeef One thing that is very interesting – is this denial of women in some places of worship – how do you see the fact that orthodox religious groups who are otherwise very antagonistic to each other, who want to annihilate each other, all of a sudden stand in agreement?
Zakiaji I don’t know whether in Bangalore people will get it, but there is a saying in Urdu, ‘chor chor mosere bhai’. They are all patriarchal, no? In the end.

 

Today you question the practices of one religion, tomorrow the patriarchal practices of another religion are bound to be questioned. Because young women and men are coming out today and demanding justice. And the kind of times we are living in, where there is knowledge and information – it has been democratized a lot thanks to the spread of internet and technology. Young women and men are asking these questions.

 

It is only a matter of time when all these citadels, patriarchal misogynistic male bodies – all of them will be questioned. Perhaps not in my lifetime Afeef, but definitely in your lifetime. They will be demolished.

 

They all know that there has to be a cartel, a kind of a syndicate of all the patriarchal and misogynist bodies. We saw that in the 377 case. Who were all the people – the Hindu patriarchs, the Muslim patriarchs, the Christian patriarchs – they all came together to oppose the abolition of 377.

 

That is why it is very important that the progressives, the humanists, the feminists must all come together because our challenge is very big.

Afeef While you were speaking, it also kind of hit me, the process in which you approached the court was a mobilizing of a movement at the grassroot level across different states – coming together in consensus and then approaching the court. How important do you think this was as a process? Even from a personal perspective, because we (ALF) also work on Public Interest Litigations, how should lawyers also understand this?
Zakiaji I think that the process of generating a discussion around any issue before taking it up legally. The process of interaction, consultation and debate, with affected persons themselves, in this case women, is very important.

 

Let’s look at it the other way around.

 

As such we have a law against dowry. But even today, it won’t be an exaggeration to say that in 8 or 9 out of 10 marriages in most regions of India, there is a dowry exchange.

 

What I am trying to say is that legal reform is a part of a much larger process of social reform. Social reform can happen only when as many men and women are involved in the process of bringing about that change.

 

Unless when we do that – we can get some laws to be brought about or even some important judgements – but the people whose lives are being affected by the discrimination; it can be triple talaq, dowry or anything, until those people are involved in the process of understanding that this is wrong. Ethically this is wrong, morally this is wrong, legally also this is wrong and I have a legal recourse. 

 

It has to be a comprehensive kind of a thing. The legitimacy in the legal fight also comes when there are enough number of people affected by the discrimination and they stand up for the fight. Finally, when the petition reaches the court it is speaking on behalf of so many thousands of people or so many lakhs of people. That’s how a fight gets its power. And the fruits of the legal struggle are also more distributed and more enjoyable.

So it’s very important to enjoy the people throughout.

Afeef I have been seeing a little bit of your struggle since 2017, since that meeting in which we had come after the triple talaq matter.

 

Although this judgement doesn’t have something directly to do with personal law, but at least J. Chandrachud reference to saying that personal law cannot be in violation of the Constitution.

 

All the other Hindu personal laws – Hindu marriage act, Adoption and maintenance act, divorce act – all the other religious __ are codified. Except musim personal law. Could you tell us a little bit of your struggle for codification?

Zakiaji Afeef, it is a very important concern you are raising. This is a continuous discrimination which has been going on in our country – since 1947. Because the parliament has codified all other personal laws except the Muslim personal law. We just broadly say that we are governed by Sharia. But which sharia? Where is it written? The 1939 Sharia application act – you look at that act and it is so sketchy. It just says we will be governed by Sharia in every matter and lists down the matters. But it doesn’t say how we will be governed. What will be the age of marriage? What will be the procedure of divorce? Even if we want a quranically correct procedure of divorce, which has to be a just and fair procedure – the talaq e Ahsan method or whichever method – It doesn’t specify that.

 

It is a huge discrimination against the entire Muslim community, not just against Muslim women. When a woman suffers, her entire family suffers. Every woman is somebody’s daughter, somebody’s mother, somebody’s sister. SO it is not as though women are being discriminated against, and the rest of the community is okay with it. An entire community is paying the price for that.

Because there are several affirmative aspects in Islam when it comes to family law and marriage. And if we were to sit down in consensus and put together some kind of a document as to what will be the age of marriage, procedure of divorce, that we should rule out polygamy legally and ethically AND islamically. Because in our understanding, polygamy is not permitted in today’s context. And even in the time of Prophet, it was strictly subject to so many conditions. It was never encouraged. It was always a remedy to some situation. In today’s day and age, we don’t require that. 

So the women of the BMMA through 10 years – lot of consultations, iterations discussions, meetings – we have put together a draft Muslim family law.  Which we hope that it will see the light of day some day. But now with the religiously polarised atmosphere, and all the threats voiced by Indu Malhotra and emanating from the observations from J. Chandrachud, all those have become reality. So i don’t know whether it is possible in the near future but we need a comprehensive reform in Muslim personal law and we need a codified Muslim family law which is based on the Quran and also conforming to the Constitutional values of justice, equality and fairness. That possibility is there in Islam. Our conservative patriarchal male bodies and politicians who are equally conservative and patriarchal don’t want to take it up. 

This is also fuelling a lot of Islamophobia and demonisation of the Muslim community. The right wing perpetually cites that – look at the condition of Muslim women – this is fuelling their entire politics. 

This is another example of what i said – that the demand for reform must come from within. But where is the political climate? Where is the political milieu which can respond to this demand and do it in a bonafide and constitutionally appropriate manner. 

Afeef Thank you Zakiaji for that very substantial answer. It is truly an understatement to say that the work done by BMMA is truly inspiring despite all the adversities it faces. 

Maybe I would conclude by stating where we are as of now. The sabarimala verdict is although quite a progressive one, a judgement that opens up several jurisprudence – now of course is under question again – because a 9 judge bench has to decide on all of these questions and we don’t know how it will go after that. 

Needless to say this would have a big imasseasaaasaww23w3pact on so many gender justice struggles especially in the religious realm. 

With that i would really like to thank Zakiaji for spending time with us and this wonderful conversation.

Zakiaji Thank you Afeef and thank you Alternative Law Forum.