This article is written by Naina Sharma.
Table of Contents
Introduction
The description and precise significance of natural law are not unanimous. In Jurisprudence, the word “Natural Law” refers to laws and values that could have come from a supreme source rather than some political or global jurisdiction.
Natural law is a philosophy founded on the premise of ‘right’ and ‘wrong’ which are universally accepted ideas, because humankind sees some objects as beneficial and positive and some as negative, harmful, or inhuman. The concept of natural law teaches one to be moral and expects one to behave ethically.
There are various jurists who have contributed their understanding of natural law and have given many related theories. Many scholars believed the existence of God to influence one’s behaviour and recognised that there are various rights provided by the law of nature that are not inalienable and cannot be altered. While there were other scholars who thought that the natural law or the law dictated by God is not superior to the positive law that is the law made by government and legislation and emphasised the idea of human rights and its connection to natural rights.
Natural rights are rights that are granted to a human for the virtue of being a human. Whereas human rights are man-made laws that are formulated for the common good of the society and individual.
In India, the concept and understanding of natural law have not been so impressive. Various foreign invasions and governmental instability failed to develop the study in this field. However, the Hindu laws link the laws to the existence of God and state that these laws were given in ‘Smritis’ and ‘Shrutis’ which are found by man and the government or legislation makes laws to protect these already derived rights of humans.
In the research paper, the case of Haji Ali Dargah settled in the year 2016, would be studied. The case mainly talks about the priority of fundamental rights over a mere custom or tradition followed blindly in the name of religion. Women were not allowed in the inner sanctum sanctorum of the Dargah violating various fundamental rights given in the Indian constitution.
The case would be analysed deeply in regards to the concept of natural law and the paper would draw a link between the positive laws violated herein with the natural laws.
To make the study more reliable and understanding, the next section ‘Review of Literature’ would first build a strong base teaching the natural law concepts by various jurists and then particularly focusing on the Islamic law as the case is of a Dargah that is governed under the Islamic law. Moving forward the paper mentions the writings of the Qur’an and Prophet Mohammed that were the main reference used by both parties in the case and then the paper recognises the universally accepted human rights that are protected via plenty of international agreements or treaties.
Review of literature
Natural law theories
“History of Natural Law and Human Rights”
The notion of equal treatment for all human beings by birth is based on a historical past that is synonymous with the resistance of people against oppression. It is the beginning of the history of human civilization. The notion that an individual has fundamental, inalienable rights against a sovereign State has its roots in natural and human rights concepts, while the word ‘human rights’ is comparatively new (Cranston, 1962).
Around the fourth century B.C., Greek philosophers introduced the idea of Natural Law. Heraclitus was the first Greek philosopher to identify (i) fate, (ii) order, and (iii) reason as the three main characteristics of the Law of Nature.
Aristotle further developed many theories about liberty, freedom, justice, and law originally outlined by ancient Greek thinkers such as Socrates and Plato (384-322 BC). Aristotle believes that only free and fair people will exercise democratic justice. Aristotle proposes a notion of natural law or “truth of nature,” which does not include legislation, rules, and agreements. Both human beings are naturally dependent on the development of moral principles according to Aristotle.
In an interpretation of the work of Aristotle, justice appears in two forms: natural justice and social justice. The essence of the matter is natural justice and there is positive justice as a connection between persons or between the resident and the state.
Just like Aristotle, Thomas Aquinas a theological scholar said that nature is well-organized. But Aquinas, unlike Aristotle, continued to state that through “divine reason,” God created nature, and governs the universe. Aquinas bifurcated law into 4 categories. Eternal law, Divine law, Natural law, and Human law.
Aquinas has written on Natural law more widely. He said that “by necessity [and thus by God] the light of reason is set upon every person to direct him in his actions.” Human beings thus use justification to lead their lives, alone among God’s creations. This is the law of nature. “The master principle of natural law, wrote Aquinas, was that “good is to be done and pursued and evil avoided.”
While the natural law remained unchanging and applicable to all human beings, human law would differ with time and place. The last form of legislation in Aquinas was described by regulation or government as “an ordinance of cause for the common good.” However, he cautioned that citizens were not obliged to follow human rules that contradicted natural legislation.
Natural law and natural rights
In the age of renaissance humanism in the early modern era, the idea of natural rights arose from the natural law, which brought the attention from government to the person, until natural law was all about the connection between the state and the society. Thomas Hobbes (1588 – 1679), John Locke (1632 – 1704), and Jean-Jacques Rousseau (1712 – 1778) conceptualised the philosophy of natural rights in the 18th century, the ‘Age of the Enlightenment’. Thomas Hobbes was the first who proposed the principle of ‘natural rights’. He embraces Aristotle’s stance on the issue of equality between people, arguing that: ‘The question who is the better man has no place in the state of mere existence, where all men are equal. The injustice is now brought on by the civil laws. (From Law teacher Article cited above).
The paper titled, “A law Professor’s Guide to Natural law and Natural Rights” penned by Randy E. Barnett further explains that Natural law ethics teaches one to practice the freedom that natural rights describe and defend. Though common-law ethics guide our acts, natural rights describe a moral space or freedom rather than a licence under which we are able to behave without the intervention of other people. Albeit principles of natural law ethics can be used for guiding individual behaviour, if they violate the moral space or freedom established by natural rights, they can not be imposed by human law with coercion. And human rules that breach natural rights are not conscientious to people.
Natural law in Islam
“Natural law and Natural Rights in Islamic Law is authored by Anver M. Emont” with a plethora of views that vary between the Mu’tazilite jurist- theologians against positivist theologian jurists, many of whom were Ash’arite theologians. It’s exigent to draw a concluding line. On one hand, Al- Jassas concerns, some acts can be uniformly mandatory (wajib) and unchangeable in the absence of scripture. Wajib, as described by reason, refers to actions that are universally recognised as obligatory, such as believing in God (iman), thanking one’s benefactor (shukral-mun-‘im), and seeking justice (insaf). These actions are often needed and have a constant value. Similarly, certain things can be considered universally forbidden. Actions such as disbelief and injustice are examples of acts that are universally and irreversibly evil.
Whereas, the Andalusian jurist Ibn Hazro contended that God induces in People passions that lead to misdeeds including lewd behaviour with pretty women and attractive young men, the drinking of alcohol, sacrificing the battle against unbelievers, and sleeping during prayers.
However, all that God forbids by scripture for human beings.
Nevertheless-
- Respected Islamicists such as Patricia Crone and the late George Makdisi have stated that there is no natural law in Islam. Presumably what they mean by this claim is that there is no ‘orthodox’ tradition whereby premodern Muslims allowed humans to speak on behalf of the divine without recourse to scripture.
- According to Usul-al-faq, where there is no epistemically coherent way to determine the divine law of that matter, no one is in a sufficient epistemic position to attribute to God a ruling of any ontological force.
- Fundamentally, Islamic law is strict scriptural positivism.
Women’s status in Islam
In the book, “The rights of Muslim Women in Islam: an Authentic Approach by Haifaa A. Jawad” it is clearly mentioned that Islam elevated women with the status of a worthy human being similar to men. Both men and women are regarded as equal in Islam. The prophet has said that every human being is equal regardless of their religion, colour, or gender. God makes no difference between a male and a female.
Islam supports women’s equality by stating that they should be given all the opportunities that would develop their natural abilities.
Therefore, from the genuine Islamic point of view, women are dignified and respectful individuals, socially, legally accountable and a servant of God. In all spheres of human activities, they have access to basic fundamental rights to exercise their ability.
In the book, “Essential Islam: a comprehensive guide to beliefs and practice by Diane Morgan”, he states in chapter 4 that there is no authority for human beings to decide what should and should not be permitted. As provided in the Qur’an they must trust the rule of Allah.
The authors also claim that law and religion are equal to the divine law which comes directly from Allah. Moreover, nowhere in the book, it is mentioned that women share unequal relations against men.
Writings from Qur’an and prophet Mohammed
In support of the above-mentioned contentions by various authors, the writings from Qur’an are referenced.
Quran does not discriminate between men and women, in the below-mentioned Quranic verses, Allah has referred to human beings as a single soul not bifurcating the species into male and women. The rights granted by Allah are the same and equivalent to both males and females.
Quran (4:1)—“O humanity! Be mindful of your Lord Who created you from a single soul, and from it, he created its mate,1 and through both He spread countless men and women. And be mindful of Allah—in Whose Name you appeal to one another—and ˹honour˺ family ties.
Surely Allah is ever Watchful over you.”
The Quran has mentioned clearly that all people are welcomed in the mosques.
“In the Quranic Verse (7:31) it is stated,” Children of Adam, take your pleasantness to every Mosque.” A Mosque is a sacred space dedicated to the One Creator of both males and females. Under the ownership of Allah, His house gives all His servants the right to refuge and prayer whether they be white or black, tall or short, young or old, male or female.
“In Quranic verse (22:25) it’s given, As to those who have rejected, and would keep back (people) from the Way of Allah, and from the Sacred Mosque, which We have made (open) for all people (An-Nas” – men and women) – equal is the dweller there and the visitor. Any whose purpose therein is profanity or wrong-doing – We make them taste a painful punishment”.
Prophet Mohammed had the view that visiting graves should be encouraged as it is an act to remember loved ones. The below-mentioned writings are in support of the contention. “The fact is that the Holy Prophet (S) has permitted the men and the women to go for ziyarat. If some of the traditions mention it to be makruh it is because of restlessness and impatience near the grave or because of not observing proper hijab.” Bukhari tells of Anas that the Holy Prophet (S) saw a woman crying out for her beloved, reassuring her that she had hope and had patience. She went from the grave to the house of the Holy Prophet and asked forgiveness not to recognise it because she was told he was the Holy Prophet (S). “Patience is recommended in the moment of misfortune,” the Holy Prophet (S), answered. If Ziyarat was forbidden, the Holy Prophet (S) would have prohibited her from this action while he only asked her to adopt patience.
Al-Qurtubi 19 says that the Holy Prophet (S) did not prohibit any lady from going for ziyarat. Instead, he cursed those ladies who were going for ziyarat very often.
Right to religious beliefs in India
The research paper “ Freedom of religion with special reference to the right of Propagation” authored by Falak Naaz highlights how India perceives the idea of freedom of religion. The right to worship and religion is not a right, but a natural right. Law does not provide it to a human being, it must be affirmed, secured, and guaranteed by law. Religious rights and freedom of faith have been recognised under both federal and international law. In that respect, religious equality and the freedom of conscience are constitutionally as well as conventionally basic rights. The freedom of faith as a fundamental right is well recognised for its “Unity of diversity as in the Indian Constitution”.
International recognition of Human rights on religion
There are various international bodies that recognise the right of freedom to practice the religion of beliefs and to worship.
“Art.18(1) of ICCPR: Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom […] either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice, and teaching.
Art. 18 (3)of ICCPR: Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
1981 Declaration of the General Assembly
Art. 6 (a): The right to freedom of thought, conscience, religion or belief includes the freedom, To worship or assemble in connection with a religion or belief […].
Human Rights Committee general comment 22
Para. 4: The concept of worship extends to ritual and ceremonial acts giving direct expression to belief, as well as various practices integral to such acts, including […] the use of ritual formulae, and objects […].”
Facts of the case
The petition entertained by the court in the year 2016 for the case was the final judgment. The petitioners exploited their right under “Article 226 of the Indian constitution” and approached the high court of the jurisdiction, the Bombay High Court by filing a PIL, for seeking protection of women in terms of equality that had been harmed arbitrarily by the respondents.
The 2 petitioners, Noorjehan Safia Niaz and Zakia Soman were social activities members of the ‘Bharatiya Muslim Mahila Andolan’. This is an organisation specifically empowering the Muslim women in India, they try to protect them and fight for their equal recognition in the society similar to men.
The petitioners had a habit of visiting the Haji Ali Dargah. “Haji Ali Dargah is an iconic landmark in Mumbai, floating in the middle of the sea like a revered mirage. This Indo-Islamic pilgrim site is a welcome yet striking sight located on an island near the Worli coast in Mumbai.
The mosque was built in the 19th century and houses the tomb of Saint Pir Haji Ali Shah Bukhari. Legend has it that Saint Haji Ali died when he went on a pilgrimage to Mecca, but miraculously, his casket floated across the sea and ended up on the shores of Mumbai. This is how this iconic mosque in Mumbai came into existence.”
It was stated by the petitioners that they weren’t denied entry in the inner sanctum sanctorum of the Dargah since their childhood whenever they visited the place. The petitioners drew out the recent visit with their mates in the year 2011 and stated that even then the same fashion was followed, that is, they were allowed inside the inner sanctum sanctorum of the Dargah.
But something unusual happened when the petitioners revisited the place in the year 2012. As soon as they headed towards the main area of the dargah, the sanctum sanctorum, a steel barricade was constructed so as to prevent the women from entering that particular area of the Dargah.
After learning from this new fashion, the petitioners went straight to respondent No. 2, the Haji Ali Dargah Trust to seek reasons for such prevention.
The reasons stated by the trust were that it was done because the dress worn by the women showed their breasts. Adding to which they stated that it was done to provide protection to the women devotees and that they were trying to undo the mistake, because of the lack of information about the Shariyat which does not allow the entry of women.
Listening to the reasons provided, the petitioners approached various government agencies and commissions for asking to interfere with the issue and handle it.
The petitioners were not able to get help from any government bodies and responses from the respondents and therefore, decided to file a PIL in the court stating that barring women to enter the inner sanctum sanctorum is a clear violation of Articles 14, 15, and 25 of the constitution of India.
Respondent No. 1 – State of Maharashtra
Respondent No. 2 – The Haji Ali Dargah Trust
Respondent No. 3- Charity Commissioner of Mumbai, Maharashtra
The court after learning about the PIL formulated some 8 questions about the maintainability of the litigation. But later that year, the court understood that as the issue was pertaining to the entry of women, the questions formed were not that necessary. Furthermore, no criticism from the respondents regarding the maintainability of the PIL made the court decide that the issue would be heard.
In order to understand the judgment of the case, let’s first go through various arguments put forward by both, the petitioner’s counsel and the respondent’s counsel.
Arguments of petitioner’s counsel
Mr. Raju Morey, the counsel highlighted the fact that such imposition was not seen prior to 2011, such a new fashion of offering prayer was made out between 2011-2012. He indicates to the court that the ban is a clear violation of the fundamental rights of Articles 14 and 15 that are guaranteed to an individual in India. Moreover, he points out that the respondent failed to prove that the banning of women is essential for the religion’s beliefs.
Also adding Article 26 to the argument, he states that though Article 26 of the Constitution provides rights for the religious institution to manage their affairs it does not allow the organisation to form new rules and regulation that contradicts the constitution, which was the case here.
He further stated that Islam does not support discrimination between men and women, and allows everyone to offer prayer.
Arguments of defendant’s counsel
Mr. Shoaib Memon appearing as a counsel from the respondent side indicated that the said PIL is filed for attention. He points out the writings of Quran and Hadith and states that Islam does not allow men and women to blend addition to which he highlighted the idea of Prophet Mohammed to construct different entry points for men and women therefore, the separate entry is justified.
Mr. Memon stated that there were plenty of complaints collected by the trust wherein the chief problem was that some men were indulging with women in an inappropriate way. So the trust’s decision was mainly to protect the women devotees.
He also highlights the writings of Islam and stated that if a woman is menstruating, she is considered to be impure at that time, therefore, entering a worshipping place in such an impure condition is not right. He further says that Islam does not allow women to enter a graveyard and the Dargah is one of them, therefore barred entry of women devotees should be allowed.
Judgment
The Haji Ali Dargah Trust is a non-independent Muslim public charitable trust. No culture, tradition, or practice affected the goals, objects, and activities of the Haji Ali Dargah trust as specified in the government-formulated scheme. Haji Ali Dargah Trust’s objects are strictly non-religious practices relating to secular and property-related activities. None of the subjects or the Scheme have the power to decide questions of faith in trustees, on the grounds of which women’s entry is limited. Although mere land administration is not subject to faith, security is therefore not provided pursuant to Article 26(b).
The right to manage the Trust (Article 26) cannot circumvent the right to exercise religion (Article 25) itself.
Trust has no right, in the cover of ‘managing religious relations,’ to discriminate against women in their public worship, and the State as such shall ensure the security of the rights of all its people, enshrined in Part III of the Constitution, including Articles 14, 15 and 25, to protect against gender discrimination and to protect them against religious discrimination.
The case put forward by the respondents justifying a ban on the defence of women from sexual assault is not justified as the trust must instead take appropriate actions to make arrangements on their security and welfare. The trust cannot place a ban on women’s protection.
The petition must then be effective and permitted. The prohibition on women accessing the sanctum sanctorum of Haji Ali Dargah levied by the respondent’s No. 2 trust is in contravention of Articles 14, 15, and 25 of the Constitution and as such, we believe that women should be allowed to join the sanctuary Sanctorum at a level equivalent to men.
Timeline
March 2011: Noorjehan (Petitioner 1) visited Haji Ali Dargah along with her social activist friend and was allowed to enter the inner sanctum sanctorum of the Dargah.
June 2012: revisited Dargah but found a stell barricade, barring women to enter the inner part of the Dargah.
14th March 2014: Received a letter from states minority development authority steeping back to interfere in the matter stating the reason that they don’t have any jurisdiction over the case when asked for help.
5th April 2014: Again Visited Dargah to see if any changes occurred or not but nothing was done against the unjustified banning of women devotees.
14th August 2014: Dr. Noorjehan Safia Niaz has applied for a PIL for prohibiting the entrance of women into Haji Ali dargah’s inner sanctorum after exhausting all the other alternatives as no authority came to interfere in the said matter.
11th February 2015: The bench of Justice VM Kanade was appointed to the PIL.
21st July 2015: The Court gives Haji Ali dargah trust oral suggestions that woman entry is allowed from a different entrance within the sanctorum as was done before 2012.
19th October 2015: The Trust submits a ruling to the court that it was a grievous sin to bring women into the nearby vicinity of the male saint. The case is then retained for the last hearing.
9th February 2016: Former Advocate general states that the ban should only be allowed if it is explicitly mentioned in the Qur’an.
21st April 2016: A nonviolent campaign called ‘Haji Ali Sabke Liye’ is being launched by NGOs, Muslim scholars, and leftist parties.
26th August 2016: The High Court of Bombay removed the prohibition on the violation of a person’s human rights. Six weeks after an appeal by Haji Ali Dargah Trust, who wants to contest it at the Supreme Court, the Court nevertheless remains in its order.
17th October 2016: Supreme court prolonged its stay till October 24, 2016, on been requested by the trust.
24th October 2016: the trust conceded in the Supreme court to allow women inside the mazaar of the Dargah but asked time for the preparation and removal of the steel barricade. The court gave 4 months for the preparations.
Issues
Is prohibiting women devotees to worship in the inner sanctum sanctorum of the dargah violating her natural right? Has the Court upheld the natural right of religion in the above case?
Articles and Acts used
Articles –
“Article 14 of the Indian Constitution”
This article says that everyone is equal in front of the law. No one is superior to law. Law provides equal protection to every person in India from discrimination done on the basis of religion, caste, sex, etc.
“Article 15 of the Indian constitution”
This article forbids the state from discriminating against a person or a group on grounds of religion, caste, gender, or place of birth. The state shall not restrict citizens on these grounds to access public places, shops, wells, etc. the article does not however prohibit the state from making special provisions for women, children, and minority or backward groups.
In the present case, barring women from entering the inner sanctum sanctorum of the Haji Ali Dargah was a violation of Articles 14 and 15 as women were being discriminated against on the ground of gender.
“Article 25 of the Indian Constitution”
This article provides freedom of conscience and free profession, practice, and propagation of religion. However, this right can be regulated if it harms public order, morality, or health and if it affects any already existing law or order.
Barring women was restricting them to freely profess their religion and practice their beliefs.
“Article 26 of the Indian constitution”
“Freedom to manage religious affairs Subject to public order, morality, and health, every religious denomination or any section thereof shall have the right to establish and maintain institutions for religious and charitable purposes;
- to manage its own affairs in matters of religion;
- to own and acquire movable and immovable property; and
- to administer such property in accordance with law”
This article has been brought to light by the respondents alleging their right to regulate religious institutions.
Laws –
Shariya/ Islamic law
“In its Islamic context, Sharia may be defined as the totality of God’s commands and exhortations”. It is meant to govern and direct believers along the way of everlasting salvation in all facets of human behaviour. Muslims commonly believe that God has chosen to send His messengers, the prophets, to announce Sharia to all peoples of this world at different periods in human history and that Prophet Mohammed is the ultimate Messenger by whom God has delivered the most perfect and full Sharia version.
“The original sources of Sharia are the Quran and the Hadith. The Koran is the collection of the utterances believed by Muslims to be the literal words of God transmitted to the prophet Mohammed through the Angel Gabriel.21”
Analysis of the case
The State’s interference in religious affairs is crucial for the defence of a person’s not only constitutional but also natural rights.
In this situation, the Haji Ali dargah trust prevented women from entering into the inner sanctum sanctorum with many grounds to validate the prohibition. Instead, the petitioners, with the reference to Quran and the prophet Muhammad, have countered their claim.
Let us analyse the decision and the reasons in relation to natural law.
Plenty of natural law jurists have believed in the existence of God. Natural law accordingly advises us to have morally behaved and to do the best for the basic good. They claim that these higher fundamental rights guaranteed under the Rule of Nature are effectively protected by constructive legislation.
Natural law scholars have shown that all are equal and should be considered as equal. According to them, the natural law cannot be altered in any way and if any law is altered, then it’s not a natural law.
As the present case deals with the religious institution, natural law theory on religion would be presented.
The Haji Ali Dargah follows the Islamic law and rules mentioned in it. The Islamic law is derived from the writings of the Quran and Prophet Mohammed. Islamic law states that there is definitely an existence of God. The jurists believe that there are some obligatory practices that are done like remembering God, giving charities, etc for the basic good whereas on the other hand, doing injustice and performing immorally or evil acts are strictly forbidden by God.
Respondents argued that barring of women is justified as Sharia law does not allow women to enter the inner sanctum of the Dargah/Mosques.
When one looks at Sharia or Islamic law, every individual is considered to be equal. No portion of humanity is partial to God. Let’s delve into Quran’s and Prophet Mohammed’s writings which had inspired Islamic law in order to grasp this dispute clearly.
In Section 2 of the text, a number of verses of the Quran were already highlighted. Quran says that every person is made from one soul and no one is superior to others. Every individual shall have the right, without prejudice, to the natural rights of God.
Many books by Islamic scholars have been published that show that Islam does not distinguish between a male and a woman based on their interpretation and on writings from the Quran. Islam handles them equally and all parts of Islamic law have equal status. The role of women in Islam is clearly misunderstood. It’s a fallacy, but people believe Islam is unfair to women.
Islam makes it clear that women have the same opportunities as men. Women are considered to be dignified by the constitution. Allah and the Prophet Mohammed did not distinguish the gender, faith, caste, etc. among the people rather strongly believes in gender equality.
They also regarded women as religious, active politicians, and a truly faithful man of God.
In the Quranic verse (7:31) Allah says “Adam’s children” go to every mosque to pray. Adam’s children are males and females. It’s not written that only men should go into the mosques.
In addition, it is clearly stated in Quranic verse 22:25 that anyone who tries thus to stop everyone from going to the mosques which Allah makes available to all should face severe penalties from Allah. ‘Anyone’ represents women and men in this section, too.
Therefore, it is obvious from the debate above that Islamic law does not distinguish a male from a woman. Allah opened the mosque to everyone.
The respondent also argued that the admission of women into the nearby Muslim male sepulchre was a severe sin in line with Islam.
It’s faulty too. Prophet Mohammed’s writings are analysed to confirm this point.
No one from Ziyarat was ever forbidden by Prophet Mohammed ( visiting graves). He saw a lady weeping over her beloved, and the Prophet consoled her, never telling the woman she should not go to the tomb.
The Prophet writes that God is unhappy only with those women who excessively visit graveyards. It is not mentioned that Allah is unhappy or disallows the whole idea of women coming near to graves.
This proves that this argument is not true. Women can go near the grave of a Muslim saint and offer to pray.
The Court is still going through a ‘critical practice exam’ to figure out whether or not any orders passed by a religious organisation can be permitted. A fundamental practice evaluation is essentially carried out to examine whether the order is proposed to preserve the fundamental character of religion and if it is not allowed then the principle notion of the religion is disturbed.
From the debate above, the Quranic texts have shown that no sexism exists in Islam against a woman, which forbids her from having a natural right to believe in faith and practice.
In addition, Islam states that an individual does not have the power to change the law of God and decides what has been done. Everything must act according to the laws that Allah dictates. This means the Haji Ali Dargah Trust cannot make rules and regulations controversial to the laws of Allah and the defendant is thus threatened by the principle of natural law as laid down in Islam in order to maintain the religious institute under Article 26.
Within Common Law, human rights originate from nature and cannot either be accorded or delegated by the ruling powers. The fundamental principle of Nature is a moral law, making it closely associated with law and morals.
Therefore, if barring women is not an essential practice, which it is not, no individual or organisation should make those laws for they will not only break the law of nature but refute God’s thoughts.
Natural law jurists have argued that beneficial legislation or legislative acts should necessarily comply with and promote the common good of society, according to human natural rights.
These are, after all, just the side effects that do not even have to do with the Quran’s contents and finally with Allah.
There are people who have no good interpretation of Islam and on the other hand, there are countries that have sought to beautifully uphold women’s religious rights.
In China, “Beijing’s first women-only mosque was built in 1921 in Xicheng’s Shouliu Hutong. The mosque was destroyed in 1997 amid a wave of demolitions of buildings considered dilapidated by the local government. In 2005, the government rebuilt the new Niujie Women’s Mosque, near its old location and the Niujie Mosque.
The emergence of women-only mosques was a result of the intermixture of Chinese and Islamic traditions. Chinese Islam has been influenced by the dominant culture of the nation which has not traditionally barred women from public life, he said. Beijing’s female-only mosque attracts more and more young women.”
In LA as well, the new women’s mosque was opened in the year 2015. “Originally built as a synagogue, Pico-Union is now the home of the non-profit Women’s Mosque as well as several Jewish and Christian groups. The mosque is open for all women regardless of their religion and nationality. Various ladies from Arab and other countries visit the women’s mosque. There is no requirement that worshipers wear headscarves, welcoming women “in the type and style of clothing in which they feel comfortable.”
Constructing other mosques specifically for women has not only presented that women are actually allowed in Islam and should not be barred from entering the mosque as done traditionally but have also ensured the safety of women devotees from all forms of sexual harassment.
The emerging interest in human rights laws and activism has actually revived the growth of natural law concepts that was slowed down during the 18th and the 19th century.
Thomas Aquinas has mentioned that human rights have a huge influence on natural laws in their formation.
The relation between natural laws and human rights has been clearly mentioned by many jurists. Natural law being a universal law, unchanging and ever-lasting rules have been protected by various important international bodies.
These international bodies recognise the natural right of religion and the freedom to practice one’s belief and have incorporated the same in their charters or declarations.
Few of these international bodies along with their rules are already specified in section 2 of the paper. Bodies like ICCPR, General Assembly Declaration, Human Rights Committee have not only said that one’s freedom of religion must be protected globally but have also alleged that to practice their beliefs and religion, many institutions can also be constructed for the same purpose.
India being a signatory of ICCPR, UDHR and other global agreements should adhere to international human rights.
The judgment passed to allow women into the inner sanctum sanctorum have not only ensured their fundamental rights of equality (Article 14) and free from discrimination (Article 15) that were violated in the above case but have also protected their natural rights that are granted to every citizen by the virtue of being a human.
References
- https://books.google.co.in/books?hl=en&lr=&id=sk99DAAAQBAJ&oi=fnd&pg=PP1&dq=THE+RIGHTS+OF+MUSLIM+WOMEN+IN+ISLAM+AN+AUTHENTIC+APPROACH.+HAIFAA+A.++JAWAD++&ots=fMiw4aHYBv&sig=HcquvWE0Ug8Fa-SyYMQdEQ71wfo
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