•  •  Dark Mode

Your Interests & Preferences

I am a...

law firm lawyer
in-house company lawyer
litigation lawyer
law student
aspiring student

Website Look & Feel

 •  •  Dark Mode
Blog Layout

Save preferences

Legally Explained: Why the HC allowed women into Haji Ali and what this means for religion and equality

Why did the sun set on Haji Ali's briefly sexist period?
Why did the sun set on Haji Ali's briefly sexist period?

A Bombay high court bench of justices VM Kanade and Revati Mohite Dere had held on Friday (26 August) that the ban on women entering the sanctum sanctorum of the Haji Ali Dargah of Mumbai, contravened Articles 14, 15 and 25 of the Constitution.

Women will now be permitted to enter the holiest of holy places inside the Dargah, just like men. But the decision did not come easily.

We try to make sense of this judgment, and its implications.

A triumph for gender justice, surely! Whom can I congratulate?

The lead petitioner is Dr. Noorjehan Safia Niaz, a 46-year old social activist from Mumbai, together with Zakia Soman, a 50-year old social activist from Ahmedabad.

They are office bearers of Bharatiya Muslim Mahila Andolan, which describes itself as a national secular autonomous mass movement of Muslim women with over 50,000 members in 15 states.

Niaz and Soman’s lawyers were Raju Z Moray with Sagar Rane and Dhishan Kukreja.

And commiserations are due to?

The State of Maharashtra, through its secretary of the Minority Development Department was the lead respondent, though it wasn’t too sorry that it technically lost the case.

However, the Haji Ali Dargah Trust, Mumbai was the main respondent, represented through five of its trustees, and it lost against the petitioners wholesale.

So what did the petitioners allege?

They alleged gender discrimination and arbitrary denial of access to women to the inner sanctum of the Haji Ali Dargah.

But wasn’t the ban on women worshipping at the Dargah tradition?

No. The ban was apparently not there in 2011.

But when Dr Niaz visited the Dargah in June 2012, she said she noticed a steel barricade put up at the entry of the sanctum sanctorum, preventing the entry of women devotees.

Earlier, women had been allowed to enter the sanctum sanctorum through a separate entry earmarked only for women.

So what is in this sanctum sanctorum anyway that everyone wants to see / restrict access to? I thought Haji Ali was basically a Mumbai tourist trap?

Yes, it is one of the most popular tourist destinations and famous landmarks in Mumbai, situated about 500 yards from the Mumbai shoreline in the middle of the Arabian Sea.

But it’s also an important site of religious pilgrimage and worship.

The inner sanctum is the place where Pir Haji Ali Shah Bukhari (RA), the Dargah’s patron saint, lies buried.

So presumably the petitioners asked the Trust why they weren’t allowed to see it, before they went to the court?


Apparently the president of the Trust disclosed three reasons for the ban to the petitioners, which didn’t satisfy them.

And in fairness, those reasons were pretty bizarre.

What were the Dargah’s reasons for banning women?

1. Women wearing blouses with wide necks bend on the Mazaar, thus showing their breasts.

2. To ensure the safety and security of women.

3. Earlier, the trust was not aware of the provisions of Shariat and had made a mistake, and therefore, had in 2012 taken steps to rectify that error.

Hmm, those sound a bit strange. But don’t all dargahs impose similar bans?

No. In fact, the petitioners surveyed several dargahs that allowed the entry of women to the inner holy chamber and had annexed to the petition, a list of those.

What did the petitioners do then?

They tried to convince the Dargah. First, the State Minorities Development Department facilitated this dialogue but the Trust did not participate in it.

The petitioners then approached the State Minority Commission which felt the matter was beyond its jurisdiction.

They also approached the Charities Commissioner to intervene because, they argued, the Trust’s ban was contrary to the Constitution.

The Charities Commissioner refused to intervene, and was the third respondent, in the case.

After the petitioners ran out of remedies available, they then approached the Bombay high court.

So how did the Trust defend itself before the high court?

Their main argument was that Islam discourages free mixing between men and women and that the intention is to keep interaction between the two sexes at a modest level.

The trust also claimed to have received complaints of sexual harassment of female devotees by men.

Not sure, but curiously the trust invoked the Supreme Court judgment on prevention of sexual harassment of women as justification to segregate the women from men.

What about the arguments advanced to justify the ban on women devotees at Sabarimala?

Yes, the Dargah also used two similar arguments.

For one, the trust told the high court that menstruating women were unclean and impure in Islam and therefore could not offer prayers or visit the Dargah / mosque.

Another common ground cited by both the Sabarimala and the Haji Ali trusts is that they enjoy the protection under Article 26, and therefore, as religious bodies have a right to manage their own affairs.

Are there any other arguments the Trust made?

Well, the trust argued that Islam also forbids women from entering a graveyard and therefore the ban was justified.

What did the Maharashtra Government say in the case?

Maharashtra’s then Advocate General, Shrihari Aney, supported the stand of the petitioners, and submitted that the protection of Article 26 was not available to the Trust as it violated Article 25, guaranteeing the freedom to practice religion.

But isn’t the Sabarimala case, which raises a similar issue of a ban on women entering the temple, being heard by the Apex Court? How can the high court give a judgment?

Yes, the high court thought about that issue.

But the petitioners told the court that the factual matrix of the two cases was different because the ban in the dargah was introduced only in 2011-12, whereas the Sabarimala ban is traced to antiquity.

Therefore, there was no need to wait for the apex court’s decision in the Sabarimala case, the high court was told.

Legally, what is the key constitutional provision that tilted the scales against the Trust?

Article 26(b). This states that subject to public order, morality and health, every religious denomination or any section thereof, shall have the right to manage its own affairs in matters of religion.

But that provision reads like it could also help the Trust to justify the ban, right? So, how did the court find against it?

The high court examined how that article was interpreted by the apex court previously.

In The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954), the Supreme Court had laid down the so-called essential function test (EFT).

According to the EFT only those practices integral to a faith can get exemption from state intervention.

The Article 26 words “its own affairs in matters of religion” were interpreted to suggest that there could be other affairs of a religious denomination, which are not strictly matters of religion, to which the protections of Article 26(b) would not apply.

So what kind of things are EFT and what aren’t?

Courts have been giving various interpretations depending on the facts of the cases before them.

In one case, the Supreme Court held that exclusion of a certain class of people from entering a temple cannot satisfy EFT. But in the same case, the court held that on some special days, the temple management could do so, claiming Article 26(b) protection.

In another case, the Supreme Court held that Anandmargis members cannot claim the protection of Article 26(b) to perform the thandava dance in public, as it is not an essential function of their religion.

The EFT seems like an elegant test our apex court came up with. How did the HC apply this test to the facts of the Haji Ali controversy?

The test to determine whether the ban qualifies as an essential function, is to find out:

  1. whether the nature of a religion would change without the ban, and

  2. whether the absence of a ban would change the very essence of a religion and its fundamental character.

In this case, if the lifting of the ban would have altered the very essence of Islam, then the ban is justified, the high court reasoned.

While the Trust cited several verses in support of its contention that the ban was consistent with the EFT, the high court disagreed that the verses showed that Islam more generally prohibits the entry of women in dargahs and mosques.

Therefore, the high court held that the Trust could not invoke Article 26 to discriminate against women in public places of worship.

Are there any observations the high court made that could be relevant for the SC to decide the Sabarimala case?

The high court reasoned that the state has the responsibility to protect the rights of all its citizens guaranteed under Part III of the Constitution, including Article 14 and 15, to protect against discrimination based on gender.

Another observation was that Article 26 (the freedom for religion to manage their own affairs) could not be seen to curtail the right to worship and practice religion, guaranteed under Article 25 of the Constitution.

This means that even if the Trust had actually seriously argued and succeeded in convincing the Court that it had a right to impose such a ban under Article 26, it still could not have used that right to undo the right guaranteed under Article 25.

What about the argument that the ban on women prevented sexual harassment?

This was the easiest ground for the high court to dismiss.

The high court directed the trust as well as the Government to ensure effective measures to protect women from harassment at the place of worship, without restricting their right to enter the sanctum sanctorum of the dargah.

What if the Trust decides to appeal against the high court verdict in the Supreme Court?

Well, they can.

If they do, then the court is unlikely to stay the high court verdict but likely to tag it with the pending Sabarimala case, which the another bench of the court will start rehearing from November.

What is the current status of the Sabarimala case?

The bench of justices Dipak Misra, Kurian Joseph and Gopal Gowda had made substantial progress in hearing the case.

They had heard all the important parties to the case, the petitioners, the intervenors, the Amicus curiae, appointed by it (senior counsel Raju Ramachandran), the Travancore Devaswom Board, which administers the temple, and the Kerala Government.

But in July, the bench’s composition changed, when justices C Nagappan and R Banumathi replaced justices Kurian Joseph and Gopal Gowda on the bench; Justice Dipak Misra continued as the presiding judge.

When it was last heard by the new bench, Justice Misra wondered aloud whether a reference to a five-judge Constitution bench would be justified, and adjourned the case to November.

What’s the crux of the Sabarimala case?

The petitioner is a group of lawyers, Indian Young Lawyers’ Association, who filed the case in 2006. The intervenor is a group of activists, called ‘Happy to Bleed’, whose senior counsel is Indira Jaising.

The Kerala Government first made submissions against the ban on the entry of women when the Left Front was in power during the early hearings in the case.

When the Congress Government was formed subsequently, it then supported the ban.

But when the Left Front came back into power in Kerala recently, it decided to stick to the stand of the previous Congress Government, surprising observers.

So we now have a paradoxical situation of the BJP Government in Maharashtra opposing a similar ban at the Dargah, while the Left Front Government in Kerala supporting such a ban at Sabarimala.

But the issue at Sabarimala is more complicated than the one at the Dargah, right?

Yes, of course.

In Sabarimala, the practice of banning women from entering dates back to antiquity, and therefore, it is possible to argue that the essential function test (EFT) could apply here in favour of the ban by the board.

The Trust in the Dargah case, however, did not have this advantage.

What is the key contribution of the Haji Ali judgment to the legal debate on the right to equality?

Article 15(2) states that no citizen shall, on grounds only of religion, race, caste, sex, place of birth, or any of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and places of public entertainment, or

(b) the use of wells, tanks, bathing, ghats, roads and places of public resort, maintained wholly or partly out of State funds or dedicated to the use of general public.

During the hearings in the Sabarimala case, the counsel for the Travancore Devaswom Board, K Venugopal, drew attention to this provision, and said its silence on place of worship was eloquent and intentional, and the framers clearly did not want anti-discrimination provisions to apply to places of worship.

But the Bombay high court, by holding that the ban was violative of Article 15 of the Constitution, seems to have rebutted Venugopal's assertion in the SC that Article 15(2) could not apply to a place of worship.

Photo by Humayunn Peerzaada

No comments yet: share your views