Updated: August 27, 2016 3:29:18 am
FOUR YEARS after the Haji Ali Dargah Trust barred women from entering the sanctum sanctorum, the Bombay High Court lifted the ban on Friday, saying it contravenes the Constitution and women should be allowed entry “at par with men”.
“The ban imposed by the dargah trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah, contravenes Articles 14 (equality before law), 15 (prohibition of discrimination on grounds of religion, race, caste, sex or place of birth) and 25 (free profession and practice and propagation of religion) of the Constitution… Women should be permitted to enter the sanctum sanctorum at par with men,” said a division bench of Justices V M Kanade and Revati Mohite Dere.
The court, however, stayed its order for six weeks, allowing the trust the liberty to appeal in the Supreme Court.
The trust had cited verses from the Quran and Prophet Mohammed to claim that Islam does not permit women to enter dargahs/ mosques. “There is nothing in any of the aforesaid verses which shows that Islam does not permit entry of women at all into a dargah/ mosque, and that their entry is sinful in Islam,” said the court.
“It cannot be said that the prohibition is an essential and integral part of Islam and fundamental to follow the religious belief; and taking away that part of the practice would result in a fundamental change in the character of that religion or its belief…
What cannot be ignored is the fact that women were permitted entry in the sanctum sanctorum till about 2011-2012,” said the court.
The trust had claimed the fundamental right “to manage its own affairs” under Article 26 of the Constitution. The court, however, said the right cannot “override the right to practice religion itself”, as Article 26 cannot be seen to overrule the right to practice one’s religion as guaranteed under the Constitution of India.
“The Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world, irrespective of their caste, creed or sex, etc. Once a public character is attached to a place of worship, all the rigors of Articles 14, 15 and 25 would come into play and the trust cannot justify its decision solely based on a misreading of Article 26,” said the bench.
“It is stated that the said 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,” said the court.
“The trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in the sanctum sanctorum, but by taking effective steps and making provisions for their safety and security, like by having separate queues for men and women, as was done earlier,” it said.
The court issued the order on a PIL filed by Noorjehan Naiz and Zakia Soman, who are office bearers of the Bharatiya Muslim Mahila Andolan. Earlier, their counsel, Raju Moray, said women were allowed entry into the sanctum sanctorum prior to 2011-2012, when the trustees imposed the restriction without any justification.
He said the ban is clearly contrary to Articles 14 and 15 of the Constitution. He said the case was peculiar and distinct from the Sabarimala and Shani Shingnapur cases, as women were permitted entry into the Haji Ali Dargah sanctum sanctorum earlier.
Advocate Shoaib Memon, appearing for the trust, argued that Islam discourages free mixing between men and women and that the intention of the restriction is to keep this interaction at a modest level. He said menstruating women were considered unclean and impure in Islam and hence, could not offer prayers or visit the dargah/ mosque.
This is not the first time that the high court has ruled in favour of women’s right to enter a place of worship. In April, the Shani Shingnapur temple, which had barred women from entering its core area for over 400 years, allowed women activists to pray inside the temple following the court’s orders.
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