Breaking: Bombay High Court strikes down ban on women in #HajiAli [Read judgment]

The Bombay High Court today struck down the ban on entry of women inside the inner sanctorum of the Haji Ali dargah. The judgment comes more than six months after it was reserved..A Division bench of Justices VM Kanade and Revati Mohite Dere delivered the judgement in a packed courtroom today, holding that the ban was violative of Articles 14, 15 and 25 of the Constitution of India. The court also directed the state to ensure the safety and security of women entering the dargah..However, the judgment has been stayed by six weeks to allow for an appeal to the Supreme Court of India..The PIL which was first mentioned by the petitioner’s advocate Raju Moray on 7 November 2014 before the then Chief Justice Mohit Shah, was filed by the Bhartiya Muslim Mahila Andolan against restrictions imposed in 2012 on the entry of women inside the inner sanctorum (mazaar) of the dargah..During the course of the hearings, a suggestion was made by the bench headed by Justice VM Kanade for an amicable solution; the Trust was asked to consider (read order) allowing women to enter the mazaar. In October of 2015, the court was informed that no amicable solution would be possible. The trust had unanimously held that the “entry of women in the close vicinity of a male saint was a grievous sin”..When the State was asked to give its opinion, the then Advocate General Shreehari Aney took a very categorical stand..“The role of the State is defined by its duty to make sure that law is equally applied. If we look at Article 26, the Dargah committee cannot say that according to our interpretation of our religion, preventing entry of women inside the sanctum sanctorum is tantamount to law.”.When Justice Kanade inquired whether the court should take a view in this matter, Aney replied,.“If something is there in the Constitution that is difficult to apply then which court but this, can take a view. It will be avoiding an issue if you do not take a view.”.The matter was listed for directions on June 9, on which date the bench sought information on the Sabrimala case that is being heard in the Supreme Court. Raju Moray also submitted a copy of the order passed by the bench headed by former Chief Justice DH Waghela on the embargo on entry of women in the Shani Shingnapur temple in Ahmednagar district. Subsequently, the court said that judgment would be announced on June 28. However, on that day, the matter was not listed..In its judgment, the High Court has examined the four grounds raised by the Haji Ali Dargah Trust justifying the ban, namely:.that the entry of women in close proximity to the grave of male Muslim Saint was a grievous SIN, as per Islam; that Article 26 of the Constitution of India confers upon the Trust a fundamental right to manage its own affairs in the matters of religion; that it is in the interest of safety and security of women; and at no point of time women were allowed to enter the close proximity of the Tomb..Examining the fourth contention first, the court held that there was clear evidence of women being allowed to enter the sanctum sanctorum of the dargah prior to 2011..On the first contention, the High Court examined the Qur’anic verses relied upon by the trust, and held that,.“Infact, some of the verses run contrary to what is being contended. Simply making the aforesaid statement and quoting verses is not sufficient, more particularly, when women were being permitted to enter the sanctum sanctorum upto 2011-2012. 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 was sinful in Islam.”.When it came to arguments over Article 25 and 26, the court first examined whether the ban on women passed the “essential functions” test ie.“[A] test to determine whether a part or a practice is essential to the religion, in this case, Islam, to find out whether the nature of religion will change, without that part or practice; and whether the alteration, will change the very essence of Islam and its fundamental character.”.Relying on the fact that women were in fact, allowed into the sanctum sanctorum prior to 2011, the court held that the ban did not pass the “essential functions” test..The court also observed that,.“The respondent No. 2 Trust has no right to discriminate entry of women into a public place of worship under the guise of `managing the affairs of religion’ under Article 26 and as such, the State will have to ensure protection of rights of all its citizens guaranteed under Part III of the Constitution, including Articles 14 and 15, to protect against discrimination based on gender.”.(Last edited at 12:39 IST on August 29, 2016).You can read the 56-page judgment below.

Breaking: Bombay High Court strikes down ban on women in #HajiAli [Read judgment]

Nitish Kashyap

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