Bombay HC Order on Haji Ali Has Opened a Floodgate

Written by Javed Anand | Published on: August 27, 2016


Collage: Bharatiya Muslim Mahila Andolan in action; Image credit: Coastal Digest

The judiciary in secular India is restoring to Muslim women the rights which Islam gave them over 1,400 years ago, but which its male custodians have denied to them through the centuries.

A delicious irony underlies yesterday’s verdict of the Bombay High Court upholding women’s right to enter the sanctum sanctorum (mazaar) at the iconic Haji Ali dargah in Worli, Mumbai. What’s more, the court has ruled that both the trustees of the dargah and the state administration were duty bound to ensure women’s exercise of their constitutional right without any hurdles, or fear of sexual harassment.

The irony, not for the first time, lies in this: the judiciary in secular India is restoring to Muslim women the rights which Islam gave them over 1,400 hundred years ago, but which its male custodians have denied to women through the centuries.

The judgement is to stay suspended for six weeks to enable the trustees to appeal in the Supreme Court. Given the solid grounds on which the verdict rests, it is doubtful if they have much of a chance and it’s safe to predict that today’s verdict will have a cascading effect. What holds true for the Haji Ali dargah must also be so for other dargahs which similarly restrict women’s access to the sanctum sanctorum.

Sooner than later, Muslim women are going to assert their right to pray inside mosques. Women did so during the lifetime of Prophet Mohammed. If to this day millions of women do pray inside the grand mosques at Mecca and Medina, which Shariah law will the ulema rely on to keep women out of mosques in India?

More significantly, sooner than later, Muslim women are going to assert their right to pray inside mosques. Women did so during the lifetime of Prophet Mohammed. If to this day millions of women do pray inside the grand mosques at Mecca and Medina, which Shariah law will the ulema rely on to keep women out of mosques in India?

Sometime during 2011-12 the trustees of the Haji Ali Dargah Trust unilaterally decided to restrict women’s entry into the sanctum sanctorum of the Sufi saint. (There is no such restriction on women of any religion at the dargah of the most revered saint in the Indian sub-continent: ‘Gharib Nawaz’ Khwaja Moinuddin Chisti in Ajmer and numerous other shrines). The co-convenors of the Bhartiya Muslim Mahila Andolan (BMMA) – Noorjehan Safia Niaz and Zakia Soman -- filed a PIL in the Bombay High Court in 2015 after the trustees refused to see reason.

In court, the trustees cited four main reasons in defense of their decision to restrict women’s entry. One, they had recently learnt that women’s proximity to the sanctum sanctorum was a “grave sin” according to the Shariah. Two, Article 26 of the Indian Constitution confers on the Trust a fundamental right to manage its own affairs in the matter of religion. Three, the restrictions were in the interest of safety and security of women. Four, at no point of time in the past were women permitted “to enter the close proximity of the tomb”.   

The fourth argument ended in a self-goal. An affidavit filed by the trustees had admitted that restrictions were imposed after they were “made to realize through various Muslim clergy’s (sic) and teachers that the act of allowing the women inside the sanctum of the dargah is a sin”. As to the third plea, the court observed that ban is no way of ensuring the safety and security of women. Instead, the trust and the state are obliged to take effective measures and ensure the same.

The court noted that none of the Quranic verses and Ahadith (sayings of the Prophet) relied upon by the trustees supported the trustees’ “grave sin” thesis. If anything, some of them actually endorsed the petitioners’ contentions and the court therefore saw no need to refer to the many Quranic verses which the petitioners had cited in support of their plea.

Effectively then, petitioners’ invocation of their fundamental rights under Article 14 (Equality before law, equal protection of law), Article 15 (Prohibition of discrimination between citizens) and Article 25 (Right to freedom of religion) was pitted against the trustees’ claim of their fundamental right under Article 26 (Freedom to manage religious affairs). 

Citing a series of Supreme Court judgments, the Bombay High Court pointed out that only “essential and integral parts of a religion” enjoy the protection of Article 26. Noting that the Haji Ali Dargah Trust was a public charitable trust, the court concluded: “Once a public character is attached to a place of worship, all the rigours of Articles 14, 15 and 25 would come into play and the Trust cannot justify its decision solely based on a misreading of Article 26. 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… In fact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution”.
 
It’s a great day for all Indians who subscribe to the view that women of all religions have the right to equal access to sacred space, and that culture and tradition cannot be invoked to override the constitutional principle of non-discrimination and gender parity.

This article was first published on The Quint.