Calls ban unconstitutional; stays order 6 weeks for appeal
In a landmark verdict, the Bombay high court on Friday upheld women’s right to enter the inner sanctum of Haji Ali Dargah in Mumbai, calling the ban on their entry “unconstitutional”. However, the court stayed its order for six weeks following a plea by Haji Ali Dargah Trust, which wants to challenge its order in the Supreme Court.
Besides the trust, there may be a few more petitions in the SC challenging the HC order. AIMIM has also announced their decision to move the apex court.
The HC held that the decision of Haji Ali Dargah Trust to prohibit women from entering the sanctum sanctorum of the dargah contravenes the rights enshrined in the Constitution and directed that women must be permitted entry.
The court also directed the Maharashtra government and the Trust to take steps to ensure the safety and security of women at the dargah.
The verdict came on the petition filed by social activist Dr Noorjehan Safia Niaz and Zakia Soman associated with the NGO Bharatiya Muslim Mahila Andolan that works for women’ rights. The petition had challenged the Haji Ali Dargah Trust’s decision to ban the entry of women into the sanctum sanctorum.
The petition contended that female devotees have an equal right of entry to all parts of the Haji Ali Dargah, including the sanctum sanctorum (mazaar), on par with the male devotees. It claimed that female devotees were traditionally permitted to enter the sanctum sanctorum.
The Haji Ali Trust through advocate Shoaib Memon had argued that Islam discourages free mixing between men and women and that the intention of the said restriction is to keep interaction at a modest level between men and women. He had relied on certain verses from Qur’an and Hadith in support of his submission. The court however rejected all their contentions on Friday and allowed the petition.
A division bench of Justice V.M. Kanade and Justice Revati Mohite-Dere said the ban order by the Haji Ali Dargah Trust contravenes Article 14 (equality before law within India), 15 (prohibition of discrimination on grounds of religion, caste, sex) and 25 (freedom of conscience and free profession, practice and propogation of religion) of the Indian Constitution.
According to the judgment, the Trust cannot enforce a ban, which is contrary to Part III of the Constitution of India. The “aims, objects and activities of the Haji Ali Dargah Trust” are not governed by any custom, tradition or usage, according to the HC order.
The order further said that the Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world, irrespective of their caste, creed, sex, etc. Once a public character is attached to a place of worship, all the rigors 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 judgment further said that the Trust has no right to discriminate against women in 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. Petitioners had, through their lawyers, contended that they were visiting Dargah of Pir Haji Ali Shah Bukhari (R.A.), the patron saint, since their childhood and were permitted to enter the sanctum sanctorum where the saint lied buried, through a separate entry earmarked only for women to enable them to offer prayers.
