Haji Ali dargah row: Maharashtra govt says fundamental rights prevail over traditions

The State Government on Tuesday informed the Bombay High Court that only if the ban on entry of women inside the inner sanctorum of the Haji Ali Dargah, is enshrined in the Quran or its tenements then it should be allowed, if the ban is because of a commentary by an expert who has inferred the quran then it cannot stand.

Advocate General Shrihari Aney, clarifying the stand of the government said, “The laws of tradition and customs have to give way for Fundamental rights, under Article 14 of the Constitution of India, which allows equal right before the law to every citizen. Thus the ban on entry of woman is not correct.”

On the aspect of whether the court can interfere in customs and traditions of a religion, Aney said, “The court will have to go to the root of it and see whether the ban on entry of woman is an integral part of religion. Whether if the entry is allowed, will it lead to the fall of the religion (Islam), if it does then ban will prevail over the Fundamental rights.”

Quoting the verse from Quran “La ilaha illallah, Muhammad-ur-Rasulullah,” (There is no god allah but Allah. Muhammad is the messenger of Allah) Aney said this is an integral part of Islam. But the commentary of an expert is of that present time and it will wary. It’s like my stand on a certain subject now will be different and ten years later it will be different.”

Aney also clarified whether a trust managing the affairs of the dargah can regulate the entry of a certain sex, he said, “A dargah committee cannot say that its inference of the religion is the law. If it wants to administer the property then it cannot be by way of banning a particular sex.”

Urging the court to weigh the aspects of customs and traditions on one side and rights of a citizen on the other through its judgment Aney said, “Taj Mahal is a place where a king and his queen are laid to rest but many people of either gender from different religions go there and offer prayers, similarly is the case with Ajmer Sharif dargah. Offering prayers is a right to practice religion, then how is it bad to the religion. Women not being allowed to pray cry’s foul of the Article 14 and 15 of the Constitution of India.”

However, the dargah trust defended its stand of not allowing women inside the inner sanctorum by saying that it is referred in quran that entry of women in close proximity to the dargah of a male saint is a grievous Sin as per Islam and as such entry of woman cannot be allowed.

Advocate Shoaib Memon said, “In mosques in Saudi Arabia woman are not allowed inside the mosque they are given a separate place to pray. We (trust) have not barred entry of woman; it is simply regulated for their safety. The trust is not only an administrator of the dargah but also managing the affairs of religion.”

Memon said banning entry of woman, was an integral part of religion and the court should not interfere in the practice. Moreover, the ban on entry of woman is a reasonable restriction with a view for peaceful co-existence. The trust also claimed that separate lines for woman are made at polling stations and at the Shirdi temples and the same is done here.

Defending its stand that touching of a male saint by a menstruating woman was a sin, the trust said “Even today in many Hindu households a menstruating woman are not allowed to enter kitchens. He equated the separate entry of woman at Haji ali dargah with that of separate railway compartments for woman, which was a facility given to them.”

Memon urged the court to visit the dargah and inspect the crowd on weekends to better understand the decision of the trust.

The court has now reserved its judgment on the plea filed by two women Zakia Soman and Noorjehan Niaz, challenging the ban on entry of women to the inner sanctum of the dargah. The PIL states that gender justice is inherent in the Quran and the decision contravenes the Hadiths, which proves that there is no prohibition on women visiting graves.judgment on the plea filed by two women Zakia Soman and Noorjehan Niaz, challenging the ban on entry of women to the inner sanctum of the dargah. The PIL states that gender justice is inherent in the Quran and the decision contravenes the Hadiths, which proves that there is no prohibition on women visiting graves.

It also says that restriction “emanates from a very conservative and extremist Salafi ideology”, which is against women's freedom and equality. “If such arbitrary actions of the trust are not restrained, it is not inconceivable that, in the future, there may be an order banning the entry of women in the dargah complex.