Why those challenging the Haji Ali Dargah Trusts ban on w...

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OPINION

Why those challenging the Haji

Ali Dargah Trusts ban on
women have a good legal case
The protesting women have a fundamental right to access the tomb
and the inner sanctum of the dargah. The Trust has no equivalent
right to exclude them.
Gautam Bhatia
Yesterday 09:15 am

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Photo Credit: Nick Gray/Wikimedia Commons

The iconic Haji Ali Dargah, which houses the tomb of the Muslim Pir
Haji Ali, is one of Mumbais most famous and widely visited
religious shrines. In 2012, the Dargah Trust, which administers the

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the saint.

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The decision was controversial, and the trustees invoked Sharia law to
justify it. In November 2014, however, the Bharatiya Muslim Mahila
Andolan filed a public interest litigation before the Bombay High
Court, challenging the ban. They argued that their exclusion from the
tomb amounted to gender discrimination, and that sharia law could
not prevail over the Constitution.
The hearings are ongoing, and the Court is expected to issue directions
on April 1.
In oral arguments, the Trusts lawyers have asked the Court to follow
well-settled principles of Indian religious freedom jurisprudence, and
refrain from interfering in matters of religion. The constitutional
position, however, is more complex, and in this essay I will set out
some of the arguments that might assist the petitioners to prevail
before the Bombay High Court.
Constitutional rights

Article 25 of the Indian Constitution guarantees to all persons the right

to freely profess, practice, and propagate religion. In a number of
judgments, the Supreme Court has held that the right to worship, as
well as modes of worship, are protected under Article 25.
Admittedly, it has also held that the right to worship does not extend
to any and every place. However, in Ismail Faruqui vs Union of India,
while holding that a mosque was not an essential and integral part of

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purposes of worship would be protected under Article 25.

It is fairly well-understood that within the sufi tradition, the dargah of
a pir, and a practice of offering prayers over the grave, does hold
special significance. Accordingly, if the petitioners can demonstrate to
the satisfaction of the Court the religious significance of visiting and
offering prayers at the shrine, they will be able to establish an Article
25 right.
Civil rights
But even if the petitioners cannot prove a constitutional right, the
Supreme Court has held that, at the very least, the right to worship is a
civil right under ordinary law, which can be enforced by a regular
lawsuit. For instance, in Sardar Saifuddin vs State of Bombay, Das
Gupta J. pointed out that
a right to office or property or to worship in any religious place or
a right to burial or cremation is included as a right legally
enforceable by suit.

In a separate case in the context of Hindu denominational temples

the Court noted, in general terms, that if it is found that
all persons are freely worshipping in the temple without let or
hindrance, it would be a proper inference to make that they do so
as a matter of right.

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duty upon all other persons to refrain from obstructing the exercise of
that right.
The Trust's rights
What of the claim, however, that the freedom of religion allows the
Trust to determine who gets access to the shrine, in accordance with
the tenets of Islam? What of the Trusts own religious rights?
In fact, Article 26 of the Constitution expressly grants to religious
denominations the right to manage their own affairs in matters of
religion, and to establish and maintain institutions for religious and
charitable purposes. Here, however, it is important to note that
insofar as Articles 25 and 26 protect not just matters of doctrine or
belief, but also acts done in pursuance of religion (such as, allegedly,
the act of excluding women from the shrine), the Supreme Court has
held that such protection is restricted to
rituals and observances, ceremonies and modes of worship which
are integral [or essential] parts of religion.

The logic of this argument was explained by Dr. Ambedkar in the

Constituent Assembly Debates. He pointed out that in India, the
influence of religion was so great, that unless constitutional protection
was limited to essentially religious practices, it would retain an
unconscionably large hold upon peoples lives from cradle to the
grave. The distinction, in turn, was explained by Justice Sinha, in his
dissenting opinion (although not on this point) in Sardar Saifuddin vs
State of Bombay. He noted:
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particular kind of worship, which is the tenet of the religious

community, and practices in other matters which may touch the
religious institutions at several points, but which are not
intimately concerned with rites and ceremonies the performance of
which is an essential part of the religion.

Essential religious practice

Consequently, strength or force of the Dargah Trusts right to exclude
women from the inner sanctum would depend upon whether
controlling access to the sanctum amounts to an essential religious
practice. According to the Supreme Court, what constitutes the
essential part of a religion is primarily to be ascertained with reference
to the doctrines of that religion, and is to be determined, in the last
instance, by the courts.
To answer this question, courts have examined the foundational texts
of a religion, as well as customary practices. For instance, in Ram
Prasad Seth vs State of UP, the Allahabad High Court analysed extracts
from the Manusmriti, the Dattak Mimamsa etc., in order to find that
polygamy was not an essential part of Hindu religion. In cases
involving Islam, the Courts have consulted the Quran and its suras.
For example, in Mohd. Hanif Qureshi vs State of Bihar, the Supreme
Court relied upon the Quran to hold that sacrificing a cow on Bakrid
was not an essential part of the Islamic religion.
Crucial facts
In this case, there are two crucial facts that indicate that the exclusion
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The petitioners have pointed out that the Quran and the Hadith,
which list the core of the practices and beliefs that constitute Islam
(that is, according to the Supreme Court), do not prescribe the
exclusion of women from places of worship in fact, quite the
contrary.
And secondly, as the petitioners have also demonstrated, a significant
number of the dargahs surveyed by them across the city of Bombay,
do not restrict womens access to the inner sanctum.
This argument is buttressed by the fact that the Trust has made three
arguments to support its exclusion of women from the inner sanctum.
Apart from the argument that it is required by Islam (which has been
rebutted above), it has also been argued that because women
are inappropriately dressed; and that this step is being taken for
their safety and security (and their chastity). It is clear that neither
of these two reasons are essentially religious in nature.
Consequently, it may be argued that the exclusion of women from the
inner sanctum is neither sanctioned by the judicially-sanctioned
authoritative sources of Islamic religious doctrine, nor by the present
practices of a majority of dargah administrations.
On the other hand, there seems to be enough evidence to establish
that the petitioners have a fundamental right (or, at least, a legal, civil
right) to offer prayers at the dargah tomb.
Now, once the petitioners right is established, the Supreme Court has
held that in such cases, the onus lies upon the State officials to

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Therefore, on legal and constitutional grounds, there are good

arguments that the PIL should succeed. The petitioners have a
fundamental right to access the tomb and the inner sanctum of the
dargah. The respondents have no equivalent right to exclude them.
Contrary to their claims, under the existing position of law, the Court
would not be interfering in a religious matter if it was to order
access. Consequently, the Court ought to direct the relevant state
authorities to ensure that the petitioners are allowed to exercise their
fundamental rights, including the right of access and prayer.
Gautam Bhatia @gautambhatia88 on Twitter is a 2011 graduate of
the National Law School of India University, who presently works at the
Delhi High Court. He blogs about the Indian Constitution
at http://indconlawphil. wordpress.com
We welcome your comments at letters@scroll.in.

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