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The genesis of the Haji Ali Dargah conflict lies in a campaign launched by the Bharatiya Muslim Mahila Andolan (BMMA), which works for empowerment of Muslim women, in the implementation of the Sachar Committee report. Before starting the campaign, activists of the group decided in June 2012 to offer prayers at the Haji Ali Dargah, a 585-year old shrine of Sayyed Peer Haji Ali Shah Bukhari, located on an islet off the Mumbai coast.
Activists realized that women who earlier had access to the Asthana — the actual spot where the saint is buried — were now not being allowed to go inside and touch the tomb.
The Haji Ali Dargah is governed by the Haji Ali Dargah Trust which is a public charitable trust registered under the Maharashtra Public Trust Act. The trustees of the Dargah had decided to deny women access to the grave in 2011, calling the practice un-Islamic. It had stated that it was rectifying its earlier mistake of allowing women to touch the actual grave.
Entry to the main hall of the Dargah is segregated for men and women: men enter through the south, women through the east. At present, separate arrangements have been made for women. They are allowed to proceed to a certain point which is an area of approximately 275 sq feet — three feet away from the tomb — from where they can pray.
After the trustees’ decision to deny women access to the grave and failed discussions, the BMMA took their case to the Maharashtra State Minority Commission and the State Minority Welfare Department which expressed their inability to intervene in a religious matter.
The BMMA finally filed a Public Interest Litigation in the Bombay High Court in August 2014 against the “blatant discrimination on the ground of gender alone” saying it impinges on their fundamental rights and also “the failure of the state to eliminate inequalities”. It asked the state to ensure that access to the inner sanctum was restored.
What does Islam say about women visiting graves?
Shrines are technically the burial places of holy men. There is no explicit direction in either the Quran or theHadees restraining women from visiting graves provided they do not indulge in actions which are contrary to the Sharia.
Men as well as women visit the final resting place of the Prophet Mohammed in Medina. In the Dargah at Ajmer, women have access to the inner sanctum. The BMMA which did a survey of 19 Dargahs in Mumbai found that 12 of these provided unfettered access to women.
There are claims that in the sayings of the Prophet, there are objections to the visitation of graves by women, however opponents of this school of thought say that these claims are weak.
What is the defendants’ case?
The Trust has claimed that the intermingling of men and women in an enclosed place around the tomb causes discomfort to both the sexes and the decision to stop women from entering is to avoid this inconvenience. The trustees have claimed that the intermingling “disturbs men mentally and women are disturbed physically.”
“There is no discrimination but only females are not allowed to touch the tomb of male saint. The Quran is very clear on that,” Shoaib Memon lawyer representing the Haji Ali Trust told the Bombay High Court.
What is the state government’s stand in the High Court?
The Maharashtra Government had said that women cannot be banned from entering the inner sanctum of Haji Ali Dargah unless this is an integral part of the Islamic faith. The state has claimed that religious practices cannot be interfered with, but customs and traditions will have to give way to the Fundamental Right to freedom of religion.
Since the issue cropped up in 2012, the state has refrained from directly intervening in the issue. At the Court hearing, the Advocate General stated that if there are difficulties in implementing constitutional rights, the court must step in. “Artificial discrimination based on sex could run foul of Article 15 of the Constitution,” the then Attorney General Shrihari Aney had told the Bombay High Court.