The court said, “The ban imposed on women from entering the Haji Ali dargah is contrary to Articles 14, 15, 19 and 25 of the Constitution of India. Women should be permitted to enter the dargah on par with men.”
In a landmark judgment, the Bombay high court on Friday lifted the ban imposed on women from entering the sanctum sanctorum of Haji Ali Dargah in Mumbai, saying it contravenes fundamental rights and that the trust has no right to prohibit women’s entry into a public place of worship.
“We hold that the ban imposed by the dargah trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah contravenes Articles 14, 15 and 25 of the Constitution of India. Women should be permitted to enter the the sanctum sanctorum at par with men,” a division bench of Justices V M Kanade and Revati Mohite Dere said.
Under these articles, a person has the fundamental right to practice any religion he or she wants. They prohibit discrimination on grounds of religion, gender and so on, and provide freedom of conscience and free profession, practice and propagation of religion.
The court has, however, stayed its order for six weeks following a plea by Haji Ali Dargah Trust, which wants to challenge it in the Supreme Court.
The bench allowed a PIL filed by two women, Zakia Soman and Noorjehan Niaz, from NGO Bharatiya Muslim Mahila Andolan, challenging the ban on women’s entry into the sanctum sanctorum of the dargah from 2012.
“The state government and the Haji Ali Dargah Trust will have to take proper steps to ensure safety and security of women at the said place of worship,” the court said.
The bench held that the trust has no power to alter or modify the mode or manner of religious practices of any individual or any group. It also noted that the “right to manage the trust cannot override the right to practice religion itself”.
“The trust has no right to discriminate entry of women into a public place of worship under the guise of ‘managing the affairs of religion’ under Article 26 and as such, the state will have to ensure protection of rights of all its citizens guaranteed under the Constitution, including Articles 14 and 15, to protect against discrimination based on gender,” the court said in its 56-page judgment.
The court refused to accept the arguments of the trust that allowing women in close proximity to the grave of male Muslim saint was sin in Islam. The trust had also quoted and submitted certain verses from the Quran to support its claim.
“Simply making the aforesaid statement and quoting verses are not sufficient, more particularly, when women were being permitted to enter the sanctum sanctorum up to 2012. There is nothing in any of the aforesaid verses which shows that Islam does not permit entry of women at all, into a dargah/mosque and that their entry was sinful in Islam,” the court said.
The bench noted that the petitioners’ counsel Raju Moray has, in fact, quoted certain verses from the Quran which show that Islam believes in gender equality and that the ban was uncalled for.
The court also held that one has to determine if a practice like the one that has been challenged in this petition is an essential part of Islam.
“Essential part of a religion means the core beliefs upon which a religion is founded and essential practice means those practices that are fundamental to follow a religious belief. The test is to determine if a practice is essential to the religion and to find out if whether the nature of the religion would change without this practice,” the court said.
It said that the trust has not been able to justify the ban legally or otherwise, and hence it cannot be said that the prohibition is an essential and integral part of Islam and if taking away that part of the practice would result in a fundamental change in the character of the religion or belief.
The court also refused to accept the justification of the trust that the ban was imposed for safety and security of the women, in particular, to prevent sexual harassment of women at places of worship.
The trust had claimed that the ban was in keeping with an order of the Supreme Court wherein stringent directions have been issued to ensure that there is no sexual harassment to women at places of worship.
The court, however, noted that this submission by the trust is completely “misplaced and misconceived and is out of context”.
“The trust under the guise of providing security and ensuring safety of women from sexual harassment, cannot justify the ban and prevent women from entering the sanctum sanctorum of the Haji Ali Dargah,” the court said.
It added that the trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry into the sanctum sanctorum, but by taking effective steps and making provisions for their safety and security for example by having separate queues for men and women, as was done earlier.
“It is also the duty of the state to ensure the safety and security of the women at such places. The state is equally under an obligation to ensure that the fundamental rights guaranteed under Articles 14, 15 and 25 of the Constitution are protected and that the right of access to the sanctum sanctorum of the Haji Ali Dargah is not denied to women,” the court said.
t's a big victory of women power'
Elated with high court's decision, members of city-based Bhumata Ranragini Brigade led by Trupti Desai, who has been spearheading the fight for gender equality in all places of worship, have decided to visit the shrine on Sunday.
"We welcome the decision of the high court. It is a tight slap on the faces of those who put a ban on women's entry into the Dargah. It's a big victory of women power," said Desai celebrating the verdict with her group outside her office in Pune.
"This is a landmark decision. The right that women are entitled to get, the right that has been given to women in the Constitution, that were somewhere taken away from us. The ban was on entry of women in the 'mazar' (area) of the Haji Ali dargah.
"We have been fighting against the secondary status given to women...patriarch mentality, this 'dadagiri' (high-handedness) attitude of the (shrine) Trust that 'we will not allow women'...This (the verdict) is a victory of movement of Bhumata Ranragini brigade," she added.
"Though the high court has stayed its order for six weeks following a plea by Haji Ali Dargah Trust, which wants to challenge it in the Supreme Court, we will go on August 28 till the point where women are allowed and will seek blessings," she told reporters.
Desai had led a high-profile campaign in April this year to break the bar on women at the core area of the dargah, but was stopped short of entering the shrine at the last minute amid resistance by activists of outfits opposed to the move. However, in May she offered prayers at the dargah but skipped venturing into the inner chamber of the shrine where women were not allowed.
The women's rights activist, whose previous campaigns were centred around Hindu temples, had then maintained that her agitation for right to equality for women at places of worship is not linked to any religion.
Bibi Khatoon, another social activist and member of the Bharatiya Muslim Mahila Andolan, a Muslim women's rights group, which had fought the ban, too rejoiced the verdict and said, "Firstly, I would like to thank the high court judge, Kanade sir. All these women who have been fighting for this right for sometime now had taken a back seat fearing what society will say...but then let the society say what they want to...but what we want do, we will do."
