Haji Ali Dargah; Dr. Noorjehan Safia Niaz Vs. State of Maharashtra [Bombay High Court, 26-08-2016]

Constitution of India Art. 226 – Gender discrimination and arbitrary denial of access to women in the sanctum sanctorum at the Haji Ali Dargah – the ban imposed by the Trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah contravenes Articles 14, 15 and 25 of the Constitution, and as such restore status-quo ante i.e. women be permitted to enter the sanctum sanctorum at par with men. The State and the Trust to take effective steps to ensure the safety and security of women at the said place of worship.

Haji Ali Dargah


IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

CORAM : V. M. KANADE & REVATI MOHITE DERE, JJ.

PRONOUNCED ON : 26th AUGUST, 2016

PUBLIC INTEREST LITIGATION NO. 106 OF 2014

1. Dr. Noorjehan Safia Niaz, Age : 44 years, Occ: Social Activist, Father’s name : Niaz Ahmed Peerzada, Residing at 35-B, Royal Hill Society, NNP 1 & 2, New MHADA Colony, Goregaon (E), Mumbai – 400 063 Mobile No. 9833072690 Email id : [email protected] PAN No. AVFPS88689B 2. Zakia Soman, Age : 48 years; Occ.: Social Activist, Father’s name : Gulam Mohiuddin Nizami, Residing at D4 Shantinath Apts, behind Medilink Hospital, Shyamlal Char Rasta, Satellite, Ahmedabad 380 055 Mobile No. 9913333620 Email id : [email protected] PAN No. ABMPJ055A …Petitioners Versus 1. State of Maharashtra Through Secretary, Minority Development Department, Mantralaya, Mumbai – 400 032 2. Haji Ali Dargah Trust Having its office at Above Kinara Masjid, Haji Ali, Lala Lajpat Rai Marg, Mumbai 400 026. Tel : 022-23529082; Fax : 022-23524221 Email : [email protected] SQPathan 1/56 Through its BOARD OF TRUSTEES : Mr. Abdul Sattar Merchant,· Chairman & Managing Trustee Mr. Rafique A. Latif Dada, Trustee· Mr. Moinuddin T. Sony, Trustee· Mr. Usman Shakoor Vanjara, Trustee· Mr. Masood Hasham Dada, Trustee· Additional Trustees : Mr. Suhail Yacoob Khandwani, Trustee· Mr. Rizwan Merchant, Trustee· 3. Charity Commissioner, Maharashtra State, Worli, Mumbai – 400 050 …Respondents Mr. Raju Z. Moray with Mr. Sagar Rane and Mr. Dhishan Kukreja for the Petitioners Mr. Shrihari Aney, Advocate General with Mr. Milind More, A.G.P for the Respondent Nos. 1 and 3 – State Mr. Shoaib I. Memon for the Respondent No. 2 Mr. S. M. Gorwadkar with Ms. Sana Yusuf Baugwala for the Intervener

JUDGMENT

(Per Revati Mohite Dere, J. ) :

1. Heard learned Counsel for the parties.

2. Rule. Rule made returnable forthwith, by consent. Learned Counsel waive notice for the respective respondents.

3. Petition is taken up for final disposal forthwith, by consent.

4. By this PIL, filed under Article 226 of the Constitution of India, the petitioners, who are social activists, have alleged gender discrimination and arbitrary denial of access to women in the sanctum sanctorum at the Haji Ali Dargah.

5. The petitioners state that they are the office bearers of `Bharatiya Muslim Mahila Andolan’ – a national secular autonomous mass movement of Muslim Women with over 50,000 members in 15 States.

According to the petitioners, since their childhood, they were visiting the Haji Ali Dargah, the Dargah of Pir Haji Ali Shah Bukhari (R.A.), the patron saint and during their visits, were permitted to enter the sanctum sanctorum where the saint lied buried, through a separate entry earmarked only for women to enable them to offer prayers. They have stated that in March, 2011, when the petitioner No. 1 along with other activists, visited the Haji Ali Dargah, they were permitted to enter the sanctum sanctorum to offer prayers. According to the petitioners, in June, 2012 when the petitioner No. 1 revisited the Dargah to offer prayers, she discovered a steel barricade put up at the entry of the sanctum sanctorum, thus preventing the entry of women devotees in the sanctum sanctorum of the Haji Ali Dargah.

Pursuant to the said restriction imposed on women devotees, the petitioners approached the authorities of the respondent No. 2 Trust and sought answers for imposing such a ban/rule. It is stated that the President of the Haji Ali Dargah Trust disclosed that the reasons for imposing such a ban/rule were – (i) women wearing blouses with wide necks bend on the Mazaar, thus showing their breasts; (ii) for the safety and security of women; and (iii) that earlier they were not aware of the provisions of Shariat and had made a mistake and therefore had taken steps to rectify the same.

6. Pursuant to the aforesaid, the petitioners approached various State Authorities including, the State Minority Commission and requested them to intervene in the said matter. The petitioners also sent letters to several Authorities registering their protest and seeking their support and intervention in the matter of prevention of entry of women in the inner sanctum sanctorum of the Haji Ali Dargah. Letters were sent to the State Minority Commission, National Commission for Women, State Commission for Women, Chief Minister of Maharashtra, Trustee of Makhdoom Shah Baba Trust and a few Ministers. It is stated that the State Minorities Development Department arranged a joint meeting of the petitioners and the Haji Ali Dargah Trustees along with Islamic Scholar Dr. Zeenat Shaukatali and other Government Officers, with a view to discuss and resolve the matter amicably. However, the Trustees of the respondent No. 2 Trust, did not turn up for the said meeting. Thereafter, the petitioners again made several representations to various authorities but the said representations went unheard. According to the petitioners, in January, 2013, a letter was sent by the Solicitors of the Haji Ali Dargah Trust to the said Minorities Development Department explaining their position in the said matter. In the said letter, it was stated that the Holy Shrine was open to all persons regardless of gender, caste, creed, etc. It was also stated that to maintain sanctity, discipline, decorum, peace and to avoid chaos, they had earmarked separate entries for men and women devotees and visitors.

According to the petitioners, the said letter was clearly contrary to the issue raised and the actual realities faced by the petitioners i.e. women were not being allowed in the sanctum sanctorum of the Haji Ali Dargah. The petitioners thereafter, again requested the respondent No. 2 Trust to discuss the issue and come to a consensus and also requested the then State Minister of Women and Child and the State Minority Commission to facilitate a dialogue and to amicably resolve the said issue. The petitioners surveyed several dargahs which allowed entry of women in the sanctum sanctorum and have annexed to the petition, a list of the said dargahs. The petitioners have stated that they had received a letter from the State Minority Commission on 14th March, 2014 wherein, the Commission stated that the matter was beyond its jurisdiction. The petitioners again visited the dargah on 5th April, 2014 and noticed that nothing was done pursuant to the protest and representation and that the women continued to be barred from entering the sanctum sanctorum of the Dargah. The petitioners also filed a complaint in the office of the respondent No. 3, Charity Commissioner, against the respondent No. 2 Trust stating, that the activities of the Trust violated the Constitution of India. Aggrieved by the fact, that their representations were not considered, the petitioners filed the aforesaid PIL seeking, amongst other reliefs, an appropriate writ, order or direction in the nature of writ of mandamus and to declare that female devotees have an equal right of entry and access to all parts including the sanctum sanctorum (mazaar) of the Haji Ali Dargah on par with the male devotees. They have also prayed for an order directing the respondent No. 2-Trust, to restore status quo ante, by permitting female devotees to enter the sanctum sanctorum of the Haji Ali Dargah on par with the male devotees.

7. The respondent No. 1 is the State of Maharashtra; the respondent No. 2 is the Haji Ali Dargah Trust, a public charitable Trust registered under the provisions of the Bombay Public Trusts Act, 1950 and the respondent No. 3 is the Charity Commissioner, Maharashtra State, Mumbai.

8. When the aforesaid petition came up before this Court on 28 th January, 2015, this Court had formulated eights questions. However, subsequently, vide order dated 10th July, 2015, this Court observed in para 4 that since the principal issue urged by the petitioners in this case was regarding access of women to the sanctum sanctorum (mazaar), it was not necessary to go into the issues which were framed earlier by the Division Bench. It was also observed in para 7 of the said order dated 10 th July, 2015 as under :

“……………. Similarly we have also made observations by our order dated 1st April, 2015 that the Respondents have not contested the question of maintainability of the petition and we have fixed the main petition for hearing on the main issue.”

Pursuant to which, this Court took up the aforesaid PIL for hearing at the stage of admission itself, with the consent of the parties.

9. Learned Advocate General for the State of Maharashtra was called upon to address this Court on the issue raised in the PIL i.e. of entry of women in the sanctum sanctorum of the Dargah in the light of the constitutional provisions relevant in the facts of this case. The respondent No. 2 Trust also filed its affidavit-in-reply contesting the reliefs sought for by the petitioner.

10. Mr. Raju Moray, learned Counsel for the petitioners submitted that the petitioners have filed the aforesaid petition after exhausting all the alternate remedies available to them, which fact, is not seriously disputed by any of the parties. He further submitted that the Haji Ali Dargah Trust is governed by a Scheme framed by this Court vide order dated 6 th June, 1934 passed in Suit No. 1337 of 1916. According to Mr. Raju Moray, learned Counsel for the petitioners, the Scheme framed nowhere authorizes the Trustees to impose a ban on the entry of women in the sanctum sanctorum of the Haji Ali Dargah. According to him, the acts of the Trustees banning the entry of the women in the sanctum sanctorum is ex-facie contrary to the Scheme framed by this Court and contrary to the Constitution of India. He submitted that the land on which the Haji Ali Dargah is situated has been leased out by the Government (the then Secretary of the State for India) to the Trust vide a Lease Deed dated 28th November, 1931 and that the occupation of the said land by the Trust is subject to the terms and conditions specified in the said Lease Deed. He submitted that it is thus evident that the Government has control over the Haji Ali Dargah Trust. He further submitted that the Trustees of the Haji Ali Dargah are to be appointed only with the permission of the Advocate General, in terms of the Scheme, framed by this Court. According to the learned Counsel, this clearly indicates the absence of autonomy of Haji Ali Dargah Trust, in matters of selection of its Managing Trustees and shows that the Government had retained control over the said Trust, which is a public charitable Trust. He submitted that in view of the aforesaid, the respondent No. 2 Trust is amenable to the writ jurisdiction, under Article 226 of the Constitution of India and as such, the PIL is maintainable. Mr. Moray further submitted that the women devotees were permitted to enter the sanctum sanctorum (mazaar) prior to 2011-2012 and it is only some time in 2011-2012, that the said restriction came to be imposed by the Trustees, without any justification. He submitted that the said ban is clearly contrary to Articles 14 and 15 of the Constitution of India and as such the said ban ought to be lifted and status-quo ante be restored. He further submitted that under Article 26of the Constitution of India, the respondent No. 2 Trust can only manage the affairs of the Trust and cannot regulate the same by imposing conditions or rules contrary to the Constitution of India. He further submitted that there is nothing brought on record by the respondent No. 2 Trust to show that the banning of entry of women `is an essential and integral part of the religion’ so as to come within the purview of Article 26 of the Constitution of India. According to the learned Counsel, there is nothing in the Qur’an which prohibits the entry of women in mosques/dargahs. He submitted that Islam believes in gender equality and as such banning the women devotees from entering the sanctum sanctorum was uncalled for. Mr. Moray submitted that the facts in the present case are peculiar and distinct, from the facts in the case of Sabarimala and Shani Shingnapur, inasmuch as, in the present case, women were permitted entry in the sanctum sanctorum right upto 2011-2012 and that the entry was restricted only as recently i.e. in 2011-2012.

11. Mr. Shoaib Memon appearing for the respondent No. 2 Trust opposed the grant of any relief in the aforesaid PIL. Respondent No. 2 has also filed an affidavit in reply on behalf of the respondent No. 2 Trust. The respondent No. 2 Trust in their affidavit have not questioned the maintainability of the said PIL, however, have disputed the issues raised in the PIL. According to Mr. Memon, Islam discourages free mixing between men and women and that the intention of the said restriction is to keep interaction at a modest level between men and women. He relied on certain verses from Qur’an and Hadith in support of his submission. He further submitted that Prophet Mohammed had ordered that mosques should have separate doors for women and men, so that, the men and women, should not be obliged to go and come through the same door. He further submitted that respondent No. 2 Trust had received several complaints that men were indulging in eve teasing and that belongings of women were being stolen. He further submitted that it was also noticed that some perverted men would come close to women and touch them inappropriately and hence on the advise of Muslim Scholars and also acting under the directions of the Apex Court that sexual harassment of women should be prevented in places of worship, that the Trust thought it fit to segregate the women from men, in order to protect them. He also relied on the guidelines laid down by the Apex Court in the case ofThe Deputy General of Police & Anr. v. S. Samuthiam 1, for imposition of the said ban. He further submitted that the Trustees of the respondent No. 2 Trust, therefore thought it fit to protect the women from possible sexual acts, which is now being termed by the petitioners as gender discrimination. Mr. Memon submitted that menstruating women were unclean and impure in Islam and hence, could not offer prayers or visit the Dargah/mosque. Mr. Memon submitted in the course of arguments, that Islam forbids women 1 (2013) 1 SCC 598 (dated 30.11.2012) from entering a graveyard and hence, the ban was justified. He submitted that the ban is not an absolute ban, inasmuch as, women are permitted to enter the Dargah, but are stopped at a point. According to him, the ban imposed by them is well within the scope of their fundamental right guaranteed to them under Articles 25 and 26 of the Constitution of India.

According to him, the petitioners have adopted the said remedy only to gain publicity and that the present PIL has been filed for their own vested interest. He submitted that under Article 26, the respondent No. 2 Trust, has a right to manage its own affairs in matters of religion and hence prayed that the PIL being misconceived, ought to be dismissed with exemplary costs.

12. Mr. Aney, the learned Advocate General submitted that it is the duty of the State to uphold the Constitution of India, so far it extends to upholding the citizens fundamental right to equality under Articles 14 and 15 and right to practice religion under Article 25. He submitted that in the present case, what needs to be examined is, whether there is any conflict between Articles 14 and 15 on the one hand and Article 26 on the other.

He submitted that unless the impugned ban is shown to be an essential or integral practice of Islam, it cannot be set up as permissible abridgment of the fundamental rights guaranteed under Articles 14 and 15 of the Constitution. He further submitted that distinction must also be made between custom and usage that has been established as law within the meaning of Article 13, and that mere custom or usage cannot be considered as law nor can be considered an essential practice of religion. According to Mr. Aney, while determining whether something is essential or an integral part of Islam, it would be necessary to distinguish between such practice which is integral and other practices which are peripheral or merely matters of tradition or custom. He submitted that the test to be followed should be whether the practice is such that without it, the essential character of the religion would stand destroyed or its theology rendered irrelevant.

According to Mr. Aney, the respondent No. 2 Trust’s contention that they have a fundamental right under Article 26 to manage the religious affairs is restricted to management of the Trust and not to its regulation. In other words, he submitted that the right to manage cannot override the right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right underArticle 25 of the Constitution. He submitted that if the impugned practice is found not to be essential or integral part of Islam, then it cannot be permitted, as it would be in violation of not only Articles 14 and 15 but also of Article 25 of the Constitution, and then, the State would be under a Constitutional obligation to uphold the rights of the petitioners and of all those, whose fundamental rights are violated. He submitted that in interpreting the Constitution, it is necessary to adopt the doctrine of harmonious construction and that no part of the Constitution can be interpreted in such a manner, as would result in curtailing/destroying any part of the Constitution. The interpretation should be such as would uphold the fundamental rights of its citizens. He submitted that Courts have always leaned towards harmonious interpretation of the Constitutional provisions.

Mr. Aney relied on the following decisions of the Apex Court in support of his submissions;