On Friday, 26.08.2016, a Bombay High Court Bench comprising of Justice V.M. Kanade and Justice Revati Mohite Dere held that restricting the entry of women in the inner sanctum of the famous Haji Ali shrine at Mumbai violates the fundamental rights of women.
The high court held that the ban imposed by the Haji Ali 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, and due to this reason, the high court directed that women be permitted to enter the sanctum sanctorum at par with men. The high court further directed the State Government and the said Trust to take effective steps to ensure the safety and security of women at the said place of worship. The court has given six weeks’ time to the trust for the implementation of its order and also for filing an appeal in the Supreme Court.
A justification given for supporting the ban by the said Trist was on the basis of the fundamental right of the Trust “to manage its own affairs” as conferred under Article 26 of the Constitution. However, the high court held that the question is whether the protection sought by the Trust under Article 26 of the Constitution can withstand the rigors of Articles 14, 15 and 25.
The high court, after referring to various judgments on this issue, held that whenever a claim is made on behalf of a denomination, that the fundamental right guaranteed to it, to manage its own affairs in matters of religion is contravened, it would be necessary to consider whether the practice in question, is religious or whether the affairs in respect of which the right of management is alleged to have been contravened, are affairs in matters of religion.
Relying upon Supreme Court judgments, the high court held that the rights of religious denomination under Article 26 of the Constitution is subject to public order, morality and health and other rights under Chapter III of the Constitution, and that the State has the power to “regulate” the affairs if the same affect the fundamental rights of any person guaranteed under Chapter III of the Constitution. The State has the power to regulate secular activities without interfering with the religious activities. It was also held that non-essential religious practices do not have protection under Articles 25 and 26 and the same can be considered secular in nature and can be “regulated” by the State. Article 26(b) relates to affairs in matters of religion such as the performance of religious rites and ceremonies, observance of religious festivals and the like and it does not refer to the administration of the property at all. Relying upon an Apex Court judgment, it was also held that if the clause “affairs in matters of religion” were to include affairs in regard to all matters, whether religious or not, the provisions under Article 26(d) for legislative regulation of the administration of the denomination property would be rendered illusory. The language of Article 26(b) and Article 26(d) brings out the difference between the two. With regard to affairs in matters of religion, the right of management given to a religious body is a guaranteed fundamental right which no legislation can take away. But, on the other hand, as regards administration of property which a religious denomination is entitled to own and acquire, it undoubtedly has the right to administer such property only in accordance with law.
The high court said the right under Article 26 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.
Zakia Soman, a petitioner in the case, is reported to have said that “this is a great step towards justice for Muslim women,”. However, Haji Rafat of MIM is also reported to have said that as the verdict of high court is against them and that they would approach the Supreme Court.
Today’s court order is in favour of the nationwide campaign to allow entry of women to all religious places of worship. Earlier this year, women won the right to entry in the temple of Maharashtra’s famous Shani Shingnapur.
Haji Ali Dargah is governed by Haji Ali Dargah trust which is registered under the Maharashtra Public Trust Act. The trustees of this fifteenth century shrine are of the belief that permitting the entry of women devotees near the tomb of the Sufi saint housed within the mosque is a grievous sin. “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.
But the court said that, “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.”
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