The trustees asked for two weeks time to act on the verdict. Take four weeks, the apex court ruled while warning that failure to implement the order after that will amount to contempt of court.

It may be recalled that Noorjehan Safia Niaz and Zakia Soman of the Bharatiya Muslim Mahila Andolan (BMMA) had petitioned the Bombay High Court after all BMMA’s efforts to persuade the dargah’s trustees to roll back their regressive decision in 2011-12. Overnight, they restricted women’s access to the dargah compound, stopped them from going up to the mazaar (sanctum sanctorum) of the Sufi saint.

Following an earlier order of the Bombay High in early April, directing the Maharashtra government and police to ensure women were not restricted from entering the sanctum sanctorum of the Shani Shingnapur and all other temples in the state, secular-minded individuals and groups among Muslims and others from Mumbai had launched the ‘Haji Ali Sab ke liye’ forum in support of the right of women to equal access on par with men to all sacred space.
 

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The judiciary in secular India is restoring to Muslim women the rights which Islam gave them over 1,400 years ago, but which its male custodians have denied to them through the centuries.

A delicious irony underlies yesterday’s verdict of the Bombay High Court upholding women’s right to enter the sanctum sanctorum (mazaar) at the iconic Haji Ali dargah in Worli, Mumbai. What’s more, the court has ruled that both the trustees of the dargah and the state administration were duty bound to ensure women’s exercise of their constitutional right without any hurdles, or fear of sexual harassment.

The irony, not for the first time, lies in this: the judiciary in secular India is restoring to Muslim women the rights which Islam gave them over 1,400 hundred years ago, but which its male custodians have denied to women through the centuries.

The judgement is to stay suspended for six weeks to enable the trustees to appeal in the Supreme Court. Given the solid grounds on which the verdict rests, it is doubtful if they have much of a chance and it’s safe to predict that today’s verdict will have a cascading effect. What holds true for the Haji Ali dargah must also be so for other dargahs which similarly restrict women’s access to the sanctum sanctorum.

Sooner than later, Muslim women are going to assert their right to pray inside mosques. Women did so during the lifetime of Prophet Mohammed. If to this day millions of women do pray inside the grand mosques at Mecca and Medina, which Shariah law will the ulema rely on to keep women out of mosques in India?

More significantly, sooner than later, Muslim women are going to assert their right to pray inside mosques. Women did so during the lifetime of Prophet Mohammed. If to this day millions of women do pray inside the grand mosques at Mecca and Medina, which Shariah law will the ulema rely on to keep women out of mosques in India?

Sometime during 2011-12 the trustees of the Haji Ali Dargah Trust unilaterally decided to restrict women’s entry into the sanctum sanctorum of the Sufi saint. (There is no such restriction on women of any religion at the dargah of the most revered saint in the Indian sub-continent: ‘Gharib Nawaz’ Khwaja Moinuddin Chisti in Ajmer and numerous other shrines). The co-convenors of the Bhartiya Muslim Mahila Andolan (BMMA) – Noorjehan Safia Niaz and Zakia Soman — filed a PIL in the Bombay High Court in 2015 after the trustees refused to see reason.

In court, the trustees cited four main reasons in defense of their decision to restrict women’s entry. One, they had recently learnt that women’s proximity to the sanctum sanctorum was a “grave sin” according to the Shariah. Two, Article 26 of the Indian Constitution confers on the Trust a fundamental right to manage its own affairs in the matter of religion. Three, the restrictions were in the interest of safety and security of women. Four, at no point of time in the past were women permitted “to enter the close proximity of the tomb”.   

The fourth argument ended in a self-goal. An affidavit filed by the trustees had admitted that restrictions were imposed after they were “made to realize through various Muslim clergy’s (sic) and teachers that the act of allowing the women inside the sanctum of the dargah is a sin”. As to the third plea, the court observed that ban is no way of ensuring the safety and security of women. Instead, the trust and the state are obliged to take effective measures and ensure the same.

The court noted that none of the Quranic verses and Ahadith (sayings of the Prophet) relied upon by the trustees supported the trustees’ “grave sin” thesis. If anything, some of them actually endorsed the petitioners’ contentions and the court therefore saw no need to refer to the many Quranic verses which the petitioners had cited in support of their plea.

Effectively then, petitioners’ invocation of their fundamental rights under Article 14 (Equality before law, equal protection of law), Article 15 (Prohibition of discrimination between citizens) and Article 25 (Right to freedom of religion) was pitted against the trustees’ claim of their fundamental right under Article 26 (Freedom to manage religious affairs). 

Citing a series of Supreme Court judgments, the Bombay High Court pointed out that only “essential and integral parts of a religion” enjoy the protection of Article 26. Noting that the Haji Ali Dargah Trust was a public charitable trust, the court concluded: “Once a public character is attached to a place of worship, all the rigours of Articles 14, 15 and 25 would come into play and the Trust cannot justify its decision solely based on a misreading of Article 26. The 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… In fact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution”.
 
It’s a great day for all Indians who subscribe to the view that women of all religions have the right to equal access to sacred space, and that culture and tradition cannot be invoked to override the constitutional principle of non-discrimination and gender parity.

This article was first published on The Quint.
 

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"Admittedly, the Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world, irrespective of their caste, creed or sex, etc. Once a public character is attached to a place of worship, all the rigors of Articles 14, 15 and 25 would come into play and the respondent No. 2 Trust cannot justify its decision solely based on a misreading of Article 26. 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. Infact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution." Excerpts from the Judgement of the Bombay High Court, August 26, 2016

The Bombay High Court has today ruled that women have the right to enter the core or inner sanctum of Mumbai's famous Haji Ali shrine, the Bombay High Court has ruled.  

However, the verdict has been put on hold or suspended for six weeks to allow the trustees of the dargah to appeal the decision in the Supreme Court.

The Bhartiya Muslim Mahila Andolan (BMMA) had petitioned the Bombay High Court challenging the decision of the trustees of Haji Ali dargah to restrict women's access to the shrine. BMMA's demand was supported by the 'Haji Ali Sab Ke Liye' forum comprising of secular-democratic minded individuals and organisations.

Full text of the Bombay High Court order may be accessed here.

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Before and after: How access to the mazaar has been blocked for women. Sketches by BMMA. 

“Beyond our ideas of right-doing and wrong-doing,
there is a field. I’ll meet you there.
When the soul lies down in that grass,
the world is too full to talk about.
Ideas, language, even the phrase ‘each other’
doesn’t make sense any more.”

~ Rumi the Mystic

A new phase has arisen in the struggle for women’s emancipation, whereby women of faith are asserting their right to equal access to sacred space, be it a temple, masjid, church or a dargah (tomb). Even as they assert their constitutional rights as equal citizens of India, women are simultaneously challenging the patriarchal hegemony, male-centric interpretation of scripture and tradition.

In 2012 women were overnight barred from going close to or touching the mazaar (elevated grave) of Haji Ali, which is an iconic part of Bombay’s syncretic, secular landscape. Women questioned this “innovation” for which no reason or logic was offered by the dargah’s trustees.

Refusing to be pushed back, Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan (BMMA) challenged the arbitrary manner in which the trustees had relegated women to second class believers. For two years they knocked on the doors of the Maharashtra government, but to no avail. The all-male trustees of the dargah refused to even meet them. They finally filed a petition in the Bombay High Court in 2014.
The case lingered on in the court, till on January 26 this year, when the Shani Shingnapur movement emerged, with a valiant group of women of the Bhumata Brigade led by Trupti Desai attempted to enter the sanctum sanctorum of the Shani temple in Ahmednagar. 

This acted as a catalyst for women across all religions who no longer accept their relegation to an inferior status. For believing women it’s a question of spiritual equality.

They scoff at the laughable and irrational illogical arguments hurled at them including the notion of purity-impurity, challenge male-supremacist interpretation of religious scriptures, argue that tradition and culture be tested against constitutional principles of justice and parity. In debate after debate in the print and electronic media, women and progressive men have demolished the rationale offered by the religious orthodoxy.

Dharna organised by 'Haji Ali sab ke liye forum near Haji Ali dargah on April 28. Photo credit: PTI

Within days of the Shani Shingnapur agitation, at BMMA’s initiative, we held a cross-community protest demonstration at Azad Maidan, Mumbai to express our solidarity with the demand of women for equal access at Shani Shingnapur temple (Ahmednagar, Maharashtra), Sabarimala temple (Kerala) and elsewhere. The participants included BMMA activists led by Noorjehan, Khatoon Apa and, Zeenat Shaukat Ali (Islamic scholar), Jyoti Badekar (Vaghini), Javed Anand (Muslims for Secular Democracy), Salim Saboowala, Jatin Desai, this writer.

Some of our friends from within the secular fraternity were ambivalent or indifferent. A few even questioned the wisdom of secularists getting associated with women of faith demanding for gender parity in religious rituals and practices.  

However a large majority among the progressives felt differently. Firstly, they argued that all of religion cannot be reduced to superstitious beliefs and blind faith. Secondly, being secular is not synonymous with being an atheist. Thirdly, the issue is not whether I believe or not, but the right of believing women to equality in the domain of religion. In other words, it was essentially a matter of right to equal access to sacred space. It was about democratising religious, social, cultural spaces and structures of beliefs and power.

The assertions and demands continued to grow encompassing the Sabarimala temple, the Trimbakeshwar temple (Nasik, Maharashtra), Haji Ali dargah, Mumbai. Soon the issue was being debated and discussed among sections of the Muslim community. Many Muslim women and men spoke out about the right of women to pray inside masjids (mosques).

On March 8, International Women’s Day, we organised a major programme at the Azad Maidan around the central theme: “Women from all religions have an equal right to worship and sacred space”. A separate march organised by various leftist, feminist organisations had also included this demand within their larger programme. Thus the assertion by women of faith was crossing new boundaries.

Azad Maidan solidarity demo in support of women's right to equal access to temples/dargahs  at ; Photo credit: DNA

After the historic verdict of the Bombay High Court (March 31, 2016) in favour of women’s access to the sanctum sanctorum of temples across Maharashtra, some of us decided to take the struggle for women’s equal access to the Haji Ali dargah to the next level.

On April 20, a cross-community forum, ‘Haji Ali sab ke liye’ was launched jointly at a press conference by prominent Muslim intellectuals, activists and artists (men and women), supported by over a dozen secular-democratic mass organisations. The name of the forum had a simple but powerful inclusive message. It was a message that the Haji Ali trustees and their supporters found very difficult to counter.

At the press conference it was announced that a peaceful dharna will be held near Haji Ali Dargah on April 28. Trupti Desai who had shown interest in the forum’s initiative was invited to the press conference where she declared that she too would participate in the dharna along with other organisations and individuals.

The struggle for equality at Haji Ali dargah has raised some key questions that are now being widely debated within the Muslim community. It is also leading to a new assertion of Muslim women, who cannot see any logic in being treated as second class believers in masjids and some dargahs, even as they stride forward in the fields of education and employment.

Sanatani Hindutva organisations who had vehemently opposed Trupti’s temple entry agitation had earlier challenged her to enter Haji Ali dargah. It is to be noted that at the joint press conference she made no mention of her plans to enter the dargah on the day of the dharna.

In the backdrop of the Bombay High Court’s order on women’s right to enter the sanctum sanctorum of all temples throughout the state, some of the remarks from Supreme Court judges during the ongoing hearing in the Sabarimala temple case, and with the Bombay High Court’s ruling in the Haji Ali dargah case pending, all that the forum planned was a peaceful gathering of progressive Muslim women and men, along with leading secular organisations and activists. The objective was to create public awareness about the right of women to equal access, on par with men, to sacred spaces.

Before the proposed dharna, several TV news channels carried heated debates where several forum members were pitched against the Muslim clergy and other conservatives. The latter’s premise was that the Quran, Hadiths and Sharia prohibited women from getting close to the mazaar. Forum members and other progressive individuals participating in the debates asserted that this was not an issue concerning religion but custom and tradition which could not override constitutional principles.

Satyen Bordoloi

The conservatives claimed that the Indian constitution gives them the right to freedom of religion under Article 25 & 26, which is more important that the right of equality guaranteed under article 14. There were some who made the outrageous proposition that to the Sufi saints (men) buried in the dargah, women appear naked and that is why they must not be allowed up to the mazaar. Asked to explain the logic, if any, all they would say was: “It’s in the Sharia”.

It’s the very same non-logic that is applied by some for barring Muslim women from entering a cemetery, where the souls of the dead and buried, it is claimed, were hovering around and they too could see women naked. On being told that the same logic should apply to the souls of dead and buried women who could also see man as naked, they were speechless.

The fact is that Sharia appears to mean different things at different dargahs. Women are barred from getting close to Haji Ali’s mazaar since 2012, whilst at the Mahim dargah of Makhdoom Baba just a few kilometers away and at Ajmer Sharif (the dargah of the most revered Sufi saint in South Asia) there is no such restriction or gender segregation.

Yes, the constitution does grant minorities the right to religious freedom but not the right to discriminate and oppress women in the name of religion. Women are now asserting their right to interpret scriptures and personal laws, which is no longer the exclusive domain and monopoly of the male clergy.

As the day of our protest approached, the cacophony of our opponents also grew. Haji Arafat (Shiv Sena), Abu Asim Azmi (Samajwadi Party), Shamsher Khan Pathan (Awami Vikas Party), the Indian Muslim League, Owaisi’s MIM, all turned out in large number to prevent Trupti from entering the dargah premise.

Here both Trupti and the coalition against her erred. In yet again projecting an anti-women perspective, those arraigned against her provided ballast for the media. In unilaterally over-stepping the commonly agreed programme of the forum, Trupti herself created confusion and chaos.

In any case, the struggle for equality at Haji Ali dargah has raised some key questions that are now being widely debated within the Muslim community. It is also leading to a new assertion of Muslim women, who cannot see any logic in being treated as second class believers in masjids and some dargahs, even as they stride forward in the fields of education and employment.

It is also compelling the Muslim conservatives to take a fresh look at the many uncomfortable questions being raised at every TV debate. The Urdu press in Mumbai has also been supportive of the push for gender equality and this too is a welcome development.

The reality of the situation is that Muslim conservatives, fanatics and extremists stand exposed the world over, even as the edifice of extremist political Islam continues to implode.

The onus now lies on progressive, liberal Muslims. There is a need for Muslim intellectuals, scholars, lawyers, artists and activists within and outside secular democratic mass movements and political parties with broader agenda to join the struggle for long overdue reform.

The progressive Muslim women’s movement is already leading the struggle for equality and emancipation, reinterpreting the scriptures, asserting their constitutional rights, challenging the citadels of patriarchy. It’s time for progressive Muslim men to come out in large numbers, organise themselves and stand in solidarity with the struggle of Muslim women.

Today women have been relegated to an inferior status at the Haji Ali dargah. Tomorrow it could be other dargahs. Who knows, next they may demand that only those Muslim women wearing a burqa would be allowed. Then they might pronounce that music is haram so Qawalis are a no-no.

Where does this plague of patriarchy and fanaticism stop?

Which is the next dargah they will target?

Could it be the Ajmer dargah itself?

This is a battle we must not lose.

(The writer is among the initiators of the ‘Haji Ali Sab Ke Liye’ forum).

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