Women can enter Haji Ali dargah sanctum, high court quashes ban

MUMBAI: The Bombay high court delivered a landmark judgement on Friday, striking down a ban on women from entering the inner sanctum of the Haji Ali dargah. The

MUMBAI: The Bombay high court delivered a landmark judgement on Friday, striking down a ban on women from entering the inner sanctum of the Haji Ali dargah. The court ordered the Haji Ali Dargah Trust to ensure that women worshippers are granted access to all parts of the shrine “at par with men”.

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Holding that the ban – in place since 2012 – violated fundamental rights guaranteed under Articles 14, 15, and 25 of the Constitution, the court said that the trust’s primary argument – that it had an unencumbered right to manage religious affairs – was “misconceived” as it could “not override the citizens’ right to practice religion”.

The bench, however, stayed the implementation of its order for six weeks to allow for an appeal. The trust said it will appeal against the verdict. Suhail Khandwani, a businessman and member of the trust, said Sharia (Islamic law) prohibited women from touching the tomb. “The court says you have to treat everyone equally but the Constitution also says that the right of every religion has to be protected,” said Khandwani.

The verdict came in response to a public interest litigation filed by Zakia Soman and Noorjehan Niaz from the non-profit Bharatiya Muslim Mahila Andolan (BMMA).

In June 2012, when a group of women from BMMA visited the shrine, they were prevented from entering the inner sanctum, which houses the tomb.

Members of the trust told them that the rules had changed and women were no longer allowed to enter it and touch the tomb. They were told they could only offer prayers from afar.

A division bench comprising Justice VM Kanade and Justice Revati Mohite-Dere delivered the judgement in a packed courtroom.

It said that besides the trust, the Maharashtra government was “equally under an obligation to ensure that the citizens’ fundamental rights are protected and that the right of access to the sanctum sanctorum of the Haji Ali Dargah is not denied to women”.

The judgement comes six months after the bench reserved its verdict on a plea challenging the ban. The bench had reserved its order after the petitioner, the Bhartiya Muslim Mahila Andolan, asked it to pass an interim order on whether the shrine must restore pre-2012 rules at the dargah, which allowed women to enter the inner sanctum, albeit through separate queues and with restricted timings.

During the hearings, the court gave both parties a chance to arrive at an amicable settlement. However, in October 2015, the trust said that no amicable solution was possible as all trustees believed unanimously that the “entry of women in the close vicinity of a male saint was a grievous sin, that Islam restricted the free mixing between men and women, and that menstruating women were unclean and could not be allowed near the tombs of saints”.

The state government had taken categorically stated its opposition to this. Shrihari Aney, then advocate general of Maharashtra, had said that women have an unfettered right to worship and that no trust or organisation must attempt to infringe on it.

Aney termed the ban “unconstitutional” and cautioned the trustees against attempting to regulate religious laws and customs based on their own interpretations.

To arrive at its verdict, the high court examined four primary questions – whether women being in close proximity to the grave of a male Muslim saint was a sin under Islam; whether Article 26 of the Constitution gave the trust a fundamental right to manage affairs at the dargah; whether the ban indeed was in the interest of the safety and security of women; and whether the trust had ever allowed women to enter the dargah’s inner sanctum.

The court held that the trust had failed to prove that Islam barred women from entering places of worship and said the trust had no business meddling with citizens’ right to practice their religion freely.

“The aims of the trust are of an administrative and non-religious nature. It has no power to determine matters of religion, on the basis of which entry of women is being restricted. It has no power to alter or modify the mode and manner of religious practices of any individual or group,” the bench said.

“Once a public character is attached to a place of worship, all the rigours of Articles 14, 15 and 25 (right to equality; prohibition of discrimination on grounds of religion, caste and gender; and the freedom to profess and practice one’s religion) of the Constitution come into play. Thus, the trust can’t justify the ban under the guise of its right to manage its affairs under Article 26,” the bench said.

The court also rejected the trust’s argument that the ban was in the interest of women as it protected them from “perverted men” and “prevented instances of sexual harassment”.

“The said submission is completely misplaced and misconceived. The trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in the sanctum sanctorum, but by taking effective steps and making provisions for their safety,” it said.

The court directed the state and the trust to take effective steps to ensure the safety and security of women at the shrine.