Bombay High Court reopens Haji Ali doors to women

In a landmark judgment, the Bombay High Court on Friday directed the Haji Ali dargah trust to allow entry of women inside the sanctum sanctorum, which was banned by the trust in 2012. The court held that the ban, imposed by the trust claiming that it was sinful in Islam, was in violative of Articles 14, 15 and 25 of the Constitution.

A division bench of justice VM Kanade and justice Revati Mohite Dhere, in their 56-page judgment, mainly dealt with three main arguments put forth by the trust in not allowing the entry of women. The court, however, stayed its order for six weeks to allow the trust to challenge it in a higher court.

Firstly, the trust had argued that entry of women in close proximity to the grave of a male Muslim saint was considered a sin in Islam. The dargah is of saint Pir Haji Ali Shah Bukhari.

The trust relied on several verses from Quran and Hadith to show that entry of women inside the dargah/mosque was prohibited.

However, after going through the material relied upon, the bench said, “Simply quoting verses is not sufficient, more particularly, when women were permitted there till 2011-2012. There is nothing in any of the aforesaid verses which shows that Islam does not permit entry of women at all in a dargah/mosque and that their entry was sinful in Islam.”

The trust argued that it had received complaints of eve-teasing inside the dargah and it is because of women's safety concerns that the ban has been imposed.

The court then observed that under the guise of ensuring safety, women cannot be barred from entering the place. “The trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry but by making provisions for their safety and security.”

The court suggested steps which the trust can take like having separate queues. It also said that it was the duty of the state to ensure the safety and security of the women at such places. The state is equally under an obligation to ensure that the fundamental rights guaranteed under Articles 14, 15 and 25 of the Constitution are protected.

The third argument put forth by the trust was that it was at liberty to manage the affairs of religion or to ban entry under Article 26 of the Constitution. The court strongly objected to this and held that trust has misread Article 26.

It said, “The aims, objectives and activities of the Haji Ali Dargah trust are not governed by any custom or tradition. The objects of the trust are in respect of purely secular activities of a non-religious nature, such as giving loans, education, medical facilities, etc. Neither the objects nor the scheme vest any power in the trustees to determine matters of religion, on the basis of which entry of woman is being restricted,” the court said.

The court held that the trust was a public charitable trust and hence open to people all over the world irrespective of their caste, creed or gender.

Former advocate general Shrihari Aney, who had argued on behalf of the state, and asked the court to draw a distinction on whether, 'if the religion (Islam) is going to fall by allowing women the entry, then the ban should prevail over fundamental rights', said: “It is immensely satisfactory that the court made the distinction between essential practices and peripheral ones. The judgment would have universal applicability and to many practices which are followed.”

Advocate Raju Moray, appearing for petitioners Noorjehan Niaz and Zakia Soman said, “We welcome the judgment. It's a step forward to curb gender discrimination.”