Why Those Challenging the Haji Ali Dargah Trust’s Ban on Women Have a Good Legal Case

OPINION

Why those challenging the HajiAli Dargah Trust’s ban onwomen have a good legal caseThe protesting women have a fundamental right to access the tombThe protesting women have a fundamental right to access the tomband the inner sanctum of the dargah. The Trust has no equivalentand the inner sanctum of the dargah. The Trust has no equivalentright to exclude them.right to exclude them.

The iconic Haji Ali Dargah, which houses the tomb of the Muslim Pir

Haji Ali, is one of Mumbai’s most famous – and widely visited –

religious shrines. In 2012, the Dargah Trust, which administers the

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the saint.

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 Trust’s 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

Monday, March 23rd 2015


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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 Trust’s 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 Trust’s 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 Qur’an 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 Bakr’id

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 Qur’an 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 women’s 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 [email protected].

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Why Those Challenging the Haji Ali Dargah Trust’s Ban on Women Have a Good Legal Case