Why is Mumbai’s famous Haji Ali Dargah being discussed in Bombay High Court?
In June 2012, activists of the Bharatiya Muslim Mahila Andolan (BMMA), a group that works for the empowerment of Muslim women, decided to pray at the shrine of Sayyed Peer Haji Ali Shah Bukhari before beginning a campaign to press for the implementation of the Sachar Committee report. They, however, realised that women, who earlier had access to the asthana, the spot where the saint is buried, were no longer being allowed to go inside and touch the tomb. They could only offer prayers from far.
After a discussion with the trustees of the shrine failed, the BMMA approached the Maharashtra State Minorities Commission and the State Minorities Welfare Department, which expressed their inability to intervene in a religious matter. Finally, the BMMA filed a public interest lawsuit in Bombay High Court in August 2014 against the “blatant discrimination on the ground of gender alone”, saying it impinged upon their fundamental rights, and reflected “the failure of the state to eliminate inequalities”. It asked for restoration of access to the inner sanctum of the shrine.
So, what does Islam say about women visiting graves?
There is no explicit direction in the Qur’an or Hadith against women visiting the burial places of holy men, as long as they do not indulge in actions that are contrary to the Sharia. Both men and women visit the final resting place of the Prophet in Medina. At the Dargah at Ajmer, women have access to the inner sanctum. Of the 19 Dargahs surveyed by the BMMA in Mumbai, 12 allow unfettered access to women. There is a school of thought that claims there are sayings of the Prophet that object to women visiting graves; however, opponents of this school say the Prophet had not objected to women visiting graveyards.
What are the defendants arguing?
The Haji Ali Dargah is governed by the Haji Ali Dargah Trust, which is a public charitable trust registered under the Maharashtra Public Trusts Act. The Trust has claimed that finding themselves in close proximity to members of the opposite gender in an enclosed place around the tomb causes discomfort to both men and women, and that the decision to stop women from entering inside was taken to avoid this inconvenience. The trustees have claimed that the intermingling of genders “disturbs men mentally and women are disturbed physically”.
They have also claimed that the decision corrects the allegedly un-Islamic practice of allowing women to touch the actual grave. “There is no discrimination, but only females are not allowed to touch the tomb of the male saint. The Qur’an is very clear on that,” Shoaib Memon, the lawyer representing the Haji Ali Trust, told the Bombay High Court.
What has the government told the court?
Advocate General Shrihari Aney has said that women cannot be barred from entering the Dargah’s inner sanctum unless the practice is an integral part of the Islamic faith. “Artificial discrimination based on sex could run afoul of Article 15 of the Constitution,” Aney told the court. The state has said that the essential part of a religion cannot be interfered with — however, customs and traditions will have to give way to the Fundamental Right to Freedom of Religion.
Does the same position on equality then apply to other places of worship in Maharashtra — such as Shani Shingnapur — and elsewhere in the country?
Technically, yes. However religious trusts claim that the Freedom of Religion allows them to decide who gets access to places of worship. In several places, non-Hindus are denied entry, while some Trusts have dress codes. The protection to Trusts is currently limited to rituals, observances and modes of worship that are integral parts of religion. The judiciary may have to decide whether traditions of excluding women from certain parts of a shrine constitute an integral and essential part of religion.