This Article is written by Samridhi Srivastava from Lloyd Law College, Greater Noida. It will give an insight into the restriction of the movement of women in Haji Ali Dargah by its trust.
Table of Contents
Introduction
Haji Ali Dargah which is located in Mumbai, Maharashtra is one of the most important Mosques where the remains of a Sufi Saint Pir Haji Ali Shah Bukhari from the 15th Century, is paid respect. It is a floating dargah and is visited by more than 50,000 people on a daily basis from different religious beliefs. The construction of the dargah is similar to Mughal architects. But just a few years back the trust of Haji Ali Dargah imposed an immediate ban on the entry of women by stating that Sharia Law finds it a sin for women to enter into a male’s Muslim saint.
However, this was not acceptable by the women who have paid a visit to the Dargah since its establishment. This article will give an insight into the battle of removing the ban on women’s movement in the Dargah.
Is Haji Ali Dargah Trust an authorized body?
The duty of Haji Ali Dargah Trust is to look after the management of the Dargah since 1916. It was founded by Abdul Karim Haji Essa Haji Fazla, Haji Jan Mohamed Haji Mohamed & others. The High Court of Mumbai granted permission to the trust through a management and administration scheme. They undertake various duties and they are as followings:
- Trust is authorized to act and preserve.
- They can invest all the occurring and mandatory expenses towards the Dargah and Masjid properties management.
- They can provide scholarships to credible underprivileged children irrespective of their caste, creed, or religion.
- They can provide medical assistance to a vulnerable class of society.
- They can even institute, support, and develop clinics and hospitals without any discretion.
- Giving financial assistance to trusts who have the same objective.
- At the time of natural calamity, they can also collect endowments or gratuity for the relief purpose.
- They can also work towards the welfare of widows, orphans, remand homes, etc.
- They are authorized to even advance money to needy people by way of the loan with security.
Why were women not allowed in the dargah
In 2012, there was a ban imposed by the Haji Ali Dargah trust on women’s entry by using the umbrella of Shariat Law and the reason for their immediate was the following:
- When bowing down to pay respect in the Mazaar their body parts get revealed because of their blouse.
- The Ban on women’s entry was necessary for safety and security purposes.
- The trust was unaware of the Sharia Law and they mistook it earlier so they restricted the movement of women in the Dargah.
Haji Ali for all movement
The restriction of movement of women in the Haji Ali Dargah gave rise to Haji Ali for all movements where more than 50,000 women from different states stood in support of the movement. It was started by the social activist Feroze Mithiborewala who was a member of Bhartiya Muslim Mahila Andolan (BMMA) and they demanded the removal of the ban on women. Through this movement, they sought support from society and even from the Ajmer Dargah.
The BMMA moved the High Court of Mumbai under Article 226 of the Indian Constitution and challenged the Trust for the unreasonable discriminatory ban by filing a writ petition. They have exhausted every possible authority before making an appeal in the Court where their stand on the removal of the ban has gone unheard.
Dr Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra
In Dr Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra case, the petitioner contended in their appeal to the court that they have visited the shrine since they were children but when the petitioner paid a visit to the Haji Ali dargah there was a barricade installed before the entrance of the sanctum. They also wrote a letter to the Solicitor of the Trust explaining their stand in the matter but when the reply came from the Minorities Development Department by stating that the Dargah is open for all despite any discriminatory factory i.e., gender, caste, faith, etc. and for maintaining peace and decorum they now even have installed separate entrances for both men and women. But it was not true the petitioner claimed that there is still no entry for women in the Holy Shrine.
However, the petitioner also mentioned that the Dargah trust was formed under the court’s scheme and as per the scheme there was no power of the trust to impose a ban on women’s movement. And it also infringes the constitutional right of the female devotees under Article 14 and Article 15 of the Indian constitution. And also, under Article 26 Trust is only entrusted to manage and maintain affairs of the dargah, it has no authority to impose any kind of restriction. The petitioner also stated that the land of the Haji Ali Dargah is a government property that is on lease and hence they can only act as per the terms of the deed.
The other contentions of the petitioner involved that under Article 25 of the Indian Constitution the trust has a right to manage it but they cannot regulate it because Article 26 cannot set aside Article 25 where every citizen of India has an equal right to practice their religious belief. The reasoning of imposing the ban on women’s entry is unreasonable and it is violating their fundamental right under Article 14 and 15 and it is hence important to imply the doctrine of harmonious constructions i.e. when there is a conflict between two provisions they both need to be interpreted distinctly. The learned counsel stated the judgment of the Supreme Court in Syedna Taher Saifuddin Saheb v. the State of Bombay, Tilkayat Shri Govindlalji Maharaj v. the State of Rajasthan, Dr Subramanium Swamy v. State of Tamil Nadu and other cases in support of his contention.
Further, the learned counsel stated Shri Anandi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. Rudani & Ors and other cases for approval of the said PIL in the Court filed for the removal of the ban by the Haji Ali Dargah Trust.
After noting the contentions of the petitioner the court moved further and stated Article 13 of the Indian Constitution where it is the responsibility of the state to make sure that no one’s fundamental right gets violated and even if any act or provision is inconsistent with the provisions of the Constitution such acts or provisions become void.
However, the only demarcation of making a change in the act or provision is given under Article 13(3) where it is stated that on the basis of the constitutional necessity of law the state is required to enforce it but the defendant failed to prove their stand on the necessity of imposing restriction on women’s entry.
Hence, the High court said that the state cannot compromise anyone’s right under Article 14 and 15 and they are obliged to ensure that everyone is treated equally without any discrimination based on gender, caste, religion, race, and place of birth. But there was no contention made under article 13(3) so the court cannot decide the case in its umbrella.
The High court of Mumbai asked the trust to rethink regarding the ban of women’s entry in the dargah and on this, the trust issued an anonymous resolution where they stated four following pointers. They are:
- As per Islam the women’s entry in a male Muslim’s Saint is considered a dreadful transgression.
- The Haji Dargah Trust has a fundamental right to take care of its religious affair under Article 26 of the Constitution of India.
- The motive of imposing a ban on women’s entry in the sanctum was to ensure their safety and security.
The trust also claimed that before also women were never allowed near the tomb.
The ruling of the Court
The High Court on listening to both the side of the petitioners and the trust took the following decisions:
- For explaining the essential and integral part of any religion and what are not essential elements, the court maintains a proper balance between Article 25 and Article 26. The essential and non-essential practices of religion are based on history, dogma, principles, etc. and the Constitution of India protects these essential practices. The basis of any religious foundation is based on its key belief and practices which are rudimentary to it. And only such practices are protected under the Constitution which are essential to the religious foundation and if any change is brought to it the very crucial nature also will be altered. The ban imposed on women’s entry in the Muslim male’s Saint as per Quran is not an essential practice and hence it cannot be justified as it does not affect the very fundamentals of Islam. The petitioner also contended that women were permitted to enter the sanctum and this is a fact which was also accepted by the trust.
- The Haji Ali Dargah Trust is a charitable trust which is governed under the Scheme and its objective is to provide facilities like scholarships, loan to the needy people, medical assistance, repairing the Dargah monument, constructing hospitals, etc. and irrespective of caste, creed, sex, religion, etc. it is open for all. Article 14, Article 15, and Article 25 automatically get attached to public space. The trust cannot take the shield for Article 26 and cannot justify the ban on women’s entry for managing their religious affair. Hence, the state has to protect the fundamental right of the citizens of India and the trust cannot override the principles of Article 25.
- The trust for justifying their restriction also contended that for ensuring women’s safety and security they have imposed a ban. So on this, the High Court said that the trust cannot justify the ban by taking the parameter of protecting women from eve tease and restrict the women’s entry. However, the Haji Ali Dargah Trust has the freedom to take effective measures for women’s but it has no authority to ban women in the Dargah because it is a public place and the State also has to ensure women’s security at the holy place. Hence, the High Court passed the PIL in favour of the women and held that the ban which is imposed on the women’s movement in the Dargah infringes the fundamental right of them under article 14 i.e. the right to equality, Article 15 i.e. access to public property without any discrimination based on sex, creed, caste, religion, and place of birth, and Article 25 that is their freedom to profess their religious belief and practice. The trust however unhappy with the decision of the High Court of Bombay appealed in the Supreme Court but the appeal was denied and the trust was asked to make proper arrangements within 4 months for women’s entry in the Dargah.
Conclusion
The Haji Ali Dargah since its erection has not imposed any restriction on the women to pay respect in the Dargah but the trust who is not authorized to impose such restrictions on women as per their lease deed and the Scheme imposed the ban on the women’s movement in the Dargah. The property on which dargah is constructed was given on lease by the state government and it qualifies the dargah for the public.
The ban violated the fundamental right of the women under Article 14, 15, and 25 and the state has to ensure that no one’s right infringes because of any act or provisions. The court after observing the ban on women’s entry gave the verdict in favour of the petitioners because they failed to justify the ban as an essential part of the fundamental of Islam.
References
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