A battle half won

Bombay High Court has ruled that any restriction on women at the dargah is a violation of the fundamental right to equality

It is being hailed as a verdict that is a victory of the Constitution over religion. Of course the Indian Courts were on the side of right. When they delivered the landmark judgment, it was to deliver justice rather than flag a sense of bravado. 

 In a landmark judgment, the Bombay High Court allowed access to women to enter the mazar of the Haji Ali Dargah: “Women”, the Court ruled, “be permitted to enter the sanctum sanctorum of the Haji Ali Dargah at par with men”. The land mark verdict finally put a lid on a legal battle that followed public interest litigation petition filed by Dr. Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan, way back  in November 2014.
 It was in June 2012 that the Haji Ali Dargah Trust banned entry of women in the mazar. Two years on a PIL was filed. Last year in July the High Court suggested to the Trust to allow women to enter the sanctum sanctorum. Same year in October, the Trust told the Court that allowing women in close vicinity of a male saint is a “grievous sin”. Bibi Khatoon, in the forefront fighting the ban had then said: "Aren't sufi saints born to women?".
 The Court suggested that the warring groups settle the matter outside court. Earlier this week, it pronounced the pro-women judgment sending cheers across the board.  Legal terminology apart, the Court invoked the equality clause while pronouncing the landmark judgment. 
 Simply put, the Court has granted access to women to enter the core or inner sanctum of Mumbai's famous Haji Ali shrine, the Bombay High Court has ruled. It said that any restriction on women at the dargah is violative of the fundamental right to equality.
 However, on the request of the Dargah Trust, the the Division Bench granted a six-week stay on the order. This was done to enable an appeal before the Supreme Court.
 The trustees of the 15th century shrine had imposed the ban five years ago. Subsequently they were pulled to Court by women’s rights group. The State government has also backed them. State Chief Minister Devendra Fadnavis had then said that tradition must accommodate change. The Maharashtra government had supported women’s demand, stating that unless the Dargah Trust proves that ban is endorsed by their religious scriptures, women should be allowed to enter the sanctum sanctorum of Haji Ali.
 The landmark verdict read: “The Trust has no power to alter or modify the mode or manner of religious practices of any individual or any group. 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.
 “It is also the duty of the State to ensure the safety and security of the women at such places. The State is equally under an obligation to ensure that the fundamental rights are protected and that the right of access into the sanctum sanctorum of the Haji Ali Dargah is not denied to women.”
 Haji Ali is a revered Sufi dargah in south central Mumbai in the state of Maharashtra in India. Built on an islet about 500 metres from the coast, it can only be reached at low tide. It draws tens of thousands of worshippers not only from the state where it stands but from all over. It is also popular among non Muslims. 
 This dargah order has come at a time when many Muslim women have approached the Supreme Court against the arbitrary triple talaq custom and other discriminatory practices – such as gender bias in maintenance and inheritance in their community – invoking their fundamental and non-discrimination. The Muslim Personal Law Board has claimed that the Muslim law is made by God, and the Supreme Court cannot interfere 
with it.
 In the past three decades, the apex court has reminded the government several times of its constitutional obligation of enacting the uniform civil code, ensuring equal rights to all. However, successive governments are caught napping. Also thy do not want to tread slippery ground on issues touching upon religious beliefs.
 Logically, religion is a personal thing and must operate within the personal sphere while law must be all pervading. In cases of conflict, it must be the law that should be all pervasive. 
 This was best summed up by the Supreme Court in 2014 when it said: “Religion cannot be allowed to be merciless... Faith cannot be used as a dehumanizing force.” Decoding this means that Islamic courts have no constitutional basis and Muslims cannot be forced to follow their fatwas.
 The recent battle follows a series of reform women across India are demanding. At a religious level, it is not only Muslim women who are demanding access and freedom towards religion but their counterparts in other religions as well. Hindu women under the banner of several organisations have launched movements for religious equality. Some months earlier, the court had allowed women to enter the sanctum sanctorum of the Shani Shingnapur temple in Maharashtra, putting an end to a 400-year-old custom. A similar case concerning the Sabarimala temple in Kerala is pending before the Supreme 
Court.
 Even though the Court verdict signals hope and is clearly reformative as far as gender equality goes, the issue at hand is its practicality. In other words, will the male chauvinists allow its implementation. Ofcourse an outward and public opposition would mean contempt of court and  more protests but a psychological pressure is what could do the trick for anti women lobbyists. It is enough for men to stand outside the mazar and prevent women from entering. They can do this by persuasion or by advocating that the move is anti religion. Given that in cases of blind faith, logic fails it is likely that women when they are dissuaded from entering the mazar give in and succumb to male and dogmatic pressure. In the  logic of “sinning” versus a legal right  chances are that fear of upsetting the Gods, as the chauvinists are likely to dub the entry, will supersede the legal right that women have been granted. 
 Therefore while activists are rejoicing over the verdict and hailing it as a gender-victory, the road ahead is full of challenges. For one, they must ensure that women are not stopped or “persuaded” not to enter the mazar. Two, they must be made aware of the verdict and injected enough strength to stand up to the men. 
Third, the blind faith and feeling of having sinned must be minimized by telling them that the ban is a retrograde step and one that establishes the supremacy of men and the weakness of women. Fourth they must be ready with counter-arguments in the face of the religious diktats that the mazar custodians will deftly furnish. 
Till women groups combat this and ensure accountability and implementation of the court order on the ground, the court verdict will be robbed of its spirit and remain one only in letter.

The writer is a senior Indian journalist, political commentator and columnist of The Independent. She can be reached at: ([email protected]) 

A battle half won

Bombay High Court has ruled that any restriction on women at the dargah is a violation of the fundamental right to equality

It is being hailed as a verdict that is a victory of the Constitution over religion. Of course the Indian Courts were on the side of right. When they delivered the landmark judgment, it was to deliver justice rather than flag a sense of bravado. In a landmark judgment, the Bombay High Court allowed access to women to enter the mazar of the Haji Ali Dargah: Women, the Court ruled, be permitted to enter the sanctum sanctorum of the Haji Ali Dargah at par with men. The land mark verdict finally put a lid on a legal battle that followed public interest litigation petition filed by Dr. Noorjehan Safia Niaz and Zakia Soman, co-founders of the Bharatiya Muslim Mahila Andolan, way back in November 2014. It was in June 2012 that the Haji Ali Dargah Trust banned entry of women in the mazar. Two years on a PIL was filed. Last year in July the High Court suggested to the Trust to allow women to enter the sanctum sanctorum. Same year in October, the Trust told the Court that allowing women in close vicinity of a male saint is a grievous sin. Bibi Khatoon, in the forefront fighting the ban had then said: Arent sufi saints born to women?. The Court suggested that the warring groups settle the matter outside court. Earlier this week, it pronounced the pro-women judgment sending cheers across the board. Legal terminology apart, the Court invoked the equality clause while pronouncing the landmark judgment. Simply put, the Court has granted access to women to enter the core or inner sanctum of Mumbais famous Haji Ali shrine, the Bombay High Court has ruled. It said that any restriction on women at the dargah is violative of the fundamental right to equality. However, on the request of the Dargah Trust, the the Division Bench granted a six-week stay on the order. This was done to enable an appeal before the Supreme Court. The trustees of the 15th century shrine had imposed the ban five years ago. Subsequently they were pulled to Court by womens rights group. The State government has also backed them. State Chief Minister Devendra Fadnavis had then said that tradition must accommodate change. The Maharashtra government had supported womens demand, stating that unless the Dargah Trust proves that ban is endorsed by their religious scriptures, women should be allowed to enter the sanctum sanctorum of Haji Ali. The landmark verdict read: The Trust has no power to alter or modify the mode or manner of religious practices of any individual or any group. 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. It is also the duty of the State to ensure the safety and security of the women at such places. The State is equally under an obligation to ensure that the fundamental rights are protected and that the right of access into the sanctum sanctorum of the Haji Ali Dargah is not denied to women. Haji Ali is a revered Sufi dargah in south central Mumbai in the state of Maharashtra in India. Built on an islet about 500 metres from the coast, it can only be reached at low tide. It draws tens of thousands of worshippers not only from the state where it stands but from all over. It is also popular among non Muslims. This dargah order has come at a time when many Muslim women have approached the Supreme Court against the arbitrary triple talaq custom and other discriminatory practices such as gender bias in maintenance and inheritance in their community invoking their fundamental and non-discrimination. The Muslim Personal Law Board has claimed that the Muslim law is made by God, and the Supreme Court cannot interfere with it. In the past three decades, the apex court has reminded the government several times of its constitutional obligation of enacting the uniform civil code, ensuring equal rights to all. However, successive governments are caught napping. Also thy do not want to tread slippery ground on issues touching upon religious beliefs. Logically, religion is a personal thing and must operate within the personal sphere while law must be all pervading. In cases of conflict, it must be the law that should be all pervasive. This was best summed up by the Supreme Court in 2014 when it said: Religion cannot be allowed to be merciless... Faith cannot be used as a dehumanizing force. Decoding this means that Islamic courts have no constitutional basis and Muslims cannot be forced to follow their fatwas. The recent battle follows a series of reform women across India are demanding. At a religious level, it is not only Muslim women who are demanding access and freedom towards religion but their counterparts in other religions as well. Hindu women under the banner of several organisations have launched movements for religious equality. Some months earlier, the court had allowed women to enter the sanctum sanctorum of the Shani Shingnapur temple in Maharashtra, putting an end to a 400-year-old custom. A similar case concerning the Sabarimala temple in Kerala is pending before the Supreme Court. Even though the Court verdict signals hope and is clearly reformative as far as gender equality goes, the issue at hand is its practicality. In other words, will the male chauvinists allow its implementation. Ofcourse an outward and public opposition would mean contempt of court and more protests but a psychological pressure is what could do the trick for anti women lobbyists. It is enough for men to stand outside the mazar and prevent women from entering. They can do this by persuasion or by advocating that the move is anti religion. Given that in cases of blind faith, logic fails it is likely that women when they are dissuaded from entering the mazar give in and succumb to male and dogmatic pressure. In the logic of sinning versus a legal right chances are that fear of upsetting the Gods, as the chauvinists are likely to dub the entry, will supersede the legal right that women have been granted. Therefore while activists are rejoicing over the verdict and hailing it as a gender-victory, the road ahead is full of challenges. For one, they must ensure that women are not stopped or persuaded not to enter the mazar. Two, they must be made aware of the verdict and injected enough strength to stand up to the men. Third, the blind faith and feeling of having sinned must be minimized by telling them that the ban is a retrograde step and one that establishes the supremacy of men and the weakness of women. Fourth they must be ready with counter-arguments in the face of the religious diktats that the mazar custodians will deftly furnish. Till women groups combat this and ensure accountability and implementation of the court order on the ground, the court verdict will be robbed of its spirit and remain one only in letter. The writer is a senior Indianjournalist, political commentator and columnist of The Independent. She can be reached at: ([email protected])