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Haji Ali Dargah: HC order on women's entry raises troubling questions

Saurav Datta | Updated on: 10 February 2017, 1:47 IST

There's much euphoria and jubilation over the Bombay High Court's order against the ban on women entering the asthana, or sanctum sanctorum, of Haji Ali Dargah, one of the country's most popular shrines in Mumbai.

Noorjehan Safia Niwaz and Zakia Soman of the Bharatiya Muslim Mahila Andolan, which led the campaign against the ban, and their supporters have hailed the ruling as a progressive judgment and a victory for women's rights.

Also Read: Bombay HC allows women to enter Haji Ali Dargah. But battle isn't over yet

The reality, though,is more complicated. For one, the judgment makes only a cursory reference to women's rights, relying more heavily on other legal and constitutional arguments. It observes, for instance, that the trust managing the shrine is only empowered to carry out administrative functions, not frame religious customs. Moreover, it cannot claim exception as a religious sect.

In Vishwa Lochan Madan case, the SC laid down that no religious belief can trump basic human rights

The court further noted that the land for the dargah was leased to the trust by the government, which legally gives the latter control over matters regarding the dargah's trustees.

This argument follows from the principle settled by the Supreme Court in the case of Vishwa Lochan Madan: that no religious belief can trump basic human rights.

Also, the apex court has, in the Shringur Mutt case, made a distinction between customs essential to practising religion and those that aren't.

Also Read: It is 21st century, you should allow women to go to the inner sanctum: Trupti Desai on Haji Ali

Screen shot from 'Piya Haji Ali' song video

This basis of the Haji Ali ruling raises thorny questions. One, how judicious is it to give the state control over religious shrines in a multi-religious nation Two, how can the court arrogate the power to pick which practices are essential and integral to a religion and which aren't? Isn't it an arbitrary power, which can be used for, say, even barring women's from entering certain places of worship? Indeed, why should the judges act as pundits, padres and maulvis?

As per Article 13 of the Constitution, "custom" is part of our law. The high court's Haji Ali ruling appears to disregard this. The SC, which will hear an appeal against the ruling, may come to a different conclusion on the matter. In any case, though, the debate on such customs is unlikely to be settled.

Also Read: Cow slaughter: why Himachal High Court's ruling is troubling

First published: 29 August 2016, 12:12 IST
Saurav Datta @SauravDatta29

Saurav Datta works in the fields of media law and criminal justice reform in Mumbai and Delhi.