The Haji Ali verdict is significant    

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(L-R) Haji Ali Dargah; Bombay High Court
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In an important judgment, the Bombay High Court recently overturned a four-year ban on the entry of women to the Haji Ali Dargah, off the Worli coast in south Mumbai, much to the cheer of intellectuals and rights activists.

A division bench comprising Justices VM Kanade and Revati Mohite Dere held that the ban was violative of Articles 14, 15 and 21 of the constitution. It also directed the Maharashtra government to provide adequate protection to women visitors.

At the same time, the High Court agreed to suspend the verdict for six weeks, enabling the Dargah trust to challenge the ruling in the apex court.

The verdict was the outcome of a PIL filed by social activists Noorjehan Safia Niaz and Zakia Soman. It came in the wake of another, more generalized, ruling by the same court on March 30 which stated that women could not be stopped from entering places of worship.

Opponents of the Haji Ali ban included Bharatiya Muslim Mahila Andolan (BMMA) and Trupti Desai’s Bhumata Ranrangini Brigade.

According to the president of the Haji Ali Dargah Trust, the reasons for imposing a ban on women’s entry to the dargah were (i) women wearing blouses with wide neck bend on the mazaar, thus exposing parts of their body, (ii) the safety and security of women and (iii) earlier they were not aware of the provisions of Shariat and had made a mistake by allowing women.

However, Islamic scholars such as Zeenat Shaukat Ali have gone on record to say that Prophet Muhammad encouraged his companions, both men and women, to visit the graves and holy shrines with intent to purify the souls (tazkiyah), attain righteousness (taqwa) and remain mindful of the hereafter (aakhirah). They contend that the Prophet did not make any distinction between men and women while exhorting Muslims to visit graves and shrines in pursuit of these spiritual benefits.

As far as entry to mosques is concerned, the Shariat allows equal access to men and women vis-à-vis places of worship, say the scholars. Not only the Prophet, but also his wife Hazrat Aisha would visit the shrines of Islamic saints like Ameer Hamza. Throughout Islamic history, scores of women Muslim mystics have visited the shrines of holy saints.

There is nothing brought on record by the respondent no. 2 (Trust) to show that the banning of entry of women “is an essential and integral part of the religion” so as to come within the purview of Article 26, the petitioners had hence argued in the case. The advocate general for Bombay (respondent no. 1) had thereafter submitted “that unless the impugned ban is shown to be an essential or integral practice of Islam, it cannot be set up as permissible abridgment of Article 14 & 15″.

In this regard, the judgment delivered by the bench said: “In the facts, we find that the respondent no. 2 has not been able to justify the ban legally or otherwise. The verses cited by the respondent no. 2 Trust do not, in any way, show that Islam does not permit entry of women at all in dargahs/mosques. It cannot, therefore, be said that the said prohibition ‘is an essential and integral part of Islam’.” Regarding the right to managing the affairs of religion invoked by the trust under the same Article 26, it goes on to say: “The right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the constitution.” The court has thus upheld the petitioners’ argument and conclusively dealt with the challenge of Article 26 posed by the respondents to their demand.

Iranian saint Pir Haji Ali Shah Bukhari lived in the 15th century. The legend of his dargah, which is a gem of Indo-Islamic architecture, revolves around a miracle that he had performed to deliver a woman who had spilled her cooking oil on the ground from its immediate consequence of a thrashing by her husband. The pir pushed a finger into the soil on the spot where the oil had fallen and out sprang a fountain of the liquid. The devotees of the pir are thus chiefly women, observers have felt.

—By Sucheta Dasgupta

 Lead Picture: (L-R) Haji Ali Dargah; Bombay High Court

 

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