On 6 December 2018, three female law students from Pune filed a public-interest litigation in the Delhi high court, seeking the entry of women to the inner precinct of the Hazrat Nizamuddin Auliya dargah in the capital. The PIL was filed barely weeks after a five-judge bench of the Supreme Court lifted the ban on women’s entry into the Sabarimala temple in Kerala. Evidently, the Sabarimala judgement has had a cascading effect, with the Supreme Court now hearing another PIL, filed by a Muslim couple, demanding that the prohibition on the entry of Muslim women in any mosque be declared illegal in India.
Historically, policies of social reform have arisen from the political branches of the state. Throughout the 1950s and the 1960s, a wave of social-reform legislation created a state-supervised infrastructure that managed prominent religious institutions and removed caste-based restrictions on entry. But in the last few years, the courts seem to have become the chief interlocutors in the social-reform process, raising enthusiasm for the judicial process as its main mode.
However, there is a deep and unresolved tension at the centre of our constitutional practice. We care about religious freedom—the right of individuals and groups to autonomously conduct their religious lives and practices. But our constitution also requires that we be sensitive to removing the entrenched practices of subordination and domination. These two values are often in conflict.
The problem is not that the practices of organised religions are inherently hierarchical and exclusionary. Religions discriminate against genders and classes to restrict access to religious spaces or religious offices, exclude certain social relations from religious recognition and follow practices that manifest a deeply patriarchal culture. If that were the problem, then reform would require most of what we know as religion today to give way to state intervention.
Rather, the problem is that religious practices in India have a material and symbolic impact on excluded individuals and groups, far beyond the acts of worship. Religion in India has consequences for people’s civic rights and their right to live with dignity. The constitution-framers recognised this and consequently regarded religion as one of the crucial domains of reform. The constitution not only prohibits the state from discriminating on the grounds of caste, religion or sex, but also empowers it to reform Hindu religious institutions and criminalise abhorrent practices, like untouchability.