In a landmark verdict, the Bombay High Court on Friday ordered that women be permitted to enter the sanctum sanctorum of the iconic Haji Ali Dargah at Worli in south Mumbai “at par with men”.
A Division Bench of Justices VM Kanade and Revati Mohite Dere ruled, “We hold that the ban imposed by Haji Ali Dargah Trust, prohibiting women from entering the sanctum sanctorum contravenes Articles 14, 15 and 25 of the Constitution, and as such restore status-quo ante i.e. women be permitted to enter the sanctum sanctorum at par with men”.
In its ruling on a petition filed by Dr Noorjehan Safia Naiz and Zakia Soman of Bharatiya Muslim Mahila Andolan, the HC directed the Maharashtra Government and the shrine’s trust to take steps to ensure the safety of women at the shrine.
The HC’s verdict came in for wholesome praise from various quarters. Naiz said, “We welcome this historic judgment. It is a big step towards ensuring gender justice for Muslim women.”
However, the Bench stayed the implementation of the order for six weeks to enable the trust to move the Supreme Court.
Indicating that the trust would move the SC against the verdict, trustee Suhail Khandwani said, “We would have to sit down and study the order before we take any step”.
Friday’s was the second major verdict given by the Bombay HC in a matter relating to the entry of women into the sanctum sanctorum of a place of worship.
Earlier on April 1, 2016, the HC, while giving a ruling on a petition challenging the ban on entry of women in the Shani Shingnapur temple, had held that it was the fundamental right of women to enter temples and it was the State’s duty to protect it.
Rejecting outright the ban, the Bench observed, “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 Part III of the Constitution.”
“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,” said the HC.
Dismissing the Trust’s justification that the ban was imposed to ensure the safety of women and prevent sexual harassment, the Bench said, “It is stated that the ban is in keeping with the decision of the Apex Court, wherein stringent directions have been issued to ensure that there is no sexual harassment to women at places of worship. We may note that the said submission is completely misplaced and misconceived”.
The judges also observed that the Trust was at liberty to take measures to prevent sexual harassment of women at the shrine by making provisions for separate queues for men and women, as was done earlier.
“It is also the duty of the State to ensure the safety of 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 into the sanctum sanctorum of the Haji Ali Dargah is not denied to women,” the Bench noted.
It may be recalled that the management of Mumbai’s iconic Sufi shrine had in November 2012 stoked a controversy over its decision to ban women from entering the mazaar housing the tomb of a 15th century saint inside the shrine.
Alluding to the 2012 restriction the judges stated, “It is apparent that women were permitted to enter the sanctum sanctorum earlier and only after the Trustees were made to realise by some Muslim clergies, that allowing women in the dargah was a sin, that the Trustees decided to prevent women from entering the sanctum sanctorum and made parallel arrangements, from where women could offer prayers.”
During the course of the arguments in the case, the trustees had told the court that close proximity of women to the grave of a male Muslim saint was considered a grievous sin in Islam.
However, the petitioners have claimed that gender justice was inherent in Quran and the norm at the dargah contravened the Hadiths, which said that women were not prohibited from visiting tombs.
“The restriction comes from a very conservative and extremist Salafi ideology and in future there may be an order banning the entry of women and non-Muslims in the dargah complex wholly,” the petitioners against the ban argued.
Dismissing that the HC ruling had anything to do with religion, MIM MlA from Maharashtra Imtiaz Jaleel said, “This is not related to Islam. The trustees may have had some reason to impose ban There are several temples where women are not allowed....do we attach religion to itIJ....it is wrong to relate it with Islam.”
However, another MIM leader Haji Rafat said, “The HC should not have interfered in the matter. Since it has given a decision against us, we will approach Supreme Court.”