» WOMEN EMPOWERMENT (HAJI ALI CASE)
WOMEN EMPOWERMENT (HAJI ALI CASE)
ACHIEVERS IAS ACADEMY
Women Empowerment (Haji Ali Case)
- The genesis of the Haji Ali Dargah conflict lies in a campaign launched by the Bharatiya Muslim Mahila Andolan (BMMA), which works for empowerment of Muslim women, in the implementation of the Sachar Committee report. Before starting the campaign, activists of the group decided in June 2012 to offer prayers at the Haji Ali Dargah, a 585-year old shrine of Sayyed Peer Haji Ali Shah Bukhari, located on an islet off the Mumbai coast.
- Activists realized that women who earlier had access to the Asthana — the actual spot where the saint is buried — were now not being allowed to go inside and touch the tomb.
- The Haji Ali Dargah is governed by the Haji Ali Dargah Trust which is a public charitable trust registered under the Maharashtra Public Trust Act.
- The trustees of the Dargah had decided to deny women access to the grave in 2011, calling the practice un-Islamic. It had stated that it was rectifying its earlier mistake of allowing women to touch the actual grave.
- Entry to the main hall of the Dargah is segregated for men and women: men enter through the south, women through the east.
- At present, separate arrangements have been made for women. They are allowed to proceed to a certain point which is an area of approximately 275 sq feet — three feet away from the tomb — from where they can pray.
- After the trustees’ decision to deny women access to the grave and failed discussions, the BMMA took their case to the Maharashtra State Minority Commission and the State Minority Welfare Department which expressed their inability to intervene in a religious matter.
- The BMMA finally filed a Public Interest Litigation in the Bombay High Court in August 2014 against the “blatant discrimination on the ground of gender alone” saying it impinges on their fundamental rights and also “the failure of the state to eliminate inequalities”. It asked the state to ensure that access to the inner sanctum was restored.
What does Islam say about women visiting graves?
- Shrines are technically the burial places of holy men. There is no explicit direction in either the Quran or the Hadees restraining women from visiting graves provided they do not indulge in actions which are contrary to the Sharia.
- Men as well as women visit the final resting place of the Prophet Mohammed in Medina.
- In the Dargah at Ajmer, women have access to the inner sanctum.
- The BMMA which did a survey of 19 Dargahs in Mumbai found that 12 of these provided unfettered access to women.
There are claims that in the sayings of the Prophet, there are objections to the visitation of graves by women, however opponents of this school of thought say that these claims are weak.
What is the defendants’ case?
- The Trust has claimed that the intermingling of men and women in an enclosed place around the tomb causes discomfort to both the sexes and the decision to stop women from entering is to avoid this inconvenience.
- The trustees have claimed that the intermingling “disturbs men mentally and women are disturbed physically.”
“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.
What is the state government’s stand in the High Court?
- The Maharashtra Government had said that women cannot be banned from entering the inner sanctum of Haji Ali Dargah unless this is an integral part of the Islamic faith.
- The state has claimed that religious practices cannot be interfered with, but customs and traditions will have to give way to the Fundamental Right to freedom of religion.
Since the issue cropped up in 2012, the state has refrained from directly intervening in the issue. At the Court hearing, the Advocate General stated that if there are difficulties in implementing constitutional rights, the court must step in. “Artificial discrimination based on sex could run foul of Article 15 of the Constitution,” the then Attorney General Shrihari Aney had told the Bombay High Court.
- The High Court on August 26 had held that the ban imposed by the Dargah Trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah, contravened Articles 14, 15 and 25 of the Constitution and said women should be permitted to enter the sanctum sanctorum like men.
- The High Court had allowed a PIL filed by a NGO Bharatiya Muslim Mahila Andolan, challenging the ban on women's entry into the sanctum sanctorum of the dargah from 2012.
- It had held that the trust had no power to alter or modify the mode or manner of religious practices of any individual or any group.
- The High Court in its 56 page-judgement had also noted that “the right to manage the Trust cannot override the right to practice religion itself".
- It had said the trust has not been able to justify the ban legally or otherwise, and hence it cannot be said that the prohibition is an essential and integral part of Islam and whether taking away that part of the practice would result in a fundamental change in the character of the religion or belief.
- The court had also refused to accept the justification of the trust that the ban was imposed for safety and security of the women, in particular, to prevent sexual harassment of women at places of worship.
- The trust had claimed that the ban was in keeping with an order of the Supreme Court wherein stringent directions have been issued to ensure that there is no sexual harassment to women at places of worship.
- The court noted that the aims, objectives and activities of the Haji Ali Dargah Trust are not governed by any custom or tradition and held that it was a public charitable trust and hence open to people all over the world, irrespective of their caste, creed or gender.
- The Maharashtra government had earlier told the court that women should be barred from entering the inner sanctorum of Haji Ali Dargah only if it is so enshrined in the Quran.
Article 14: Equality before law
The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.
(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
Article 25: Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law.
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation 1: The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation 2: In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly