In 2012, the Haji Ali Dargah Trust, which administers the shrine of Saint Haji Ali, barred women from entering the the inner sanctum of the dargah, which houses the tomb of the saint. In November 2014, the Bharatiya Muslim Mahila Andolan filed a PIL before the Bombay High Court, challenging this decision. The hearings are ongoing, and the Court will issue directions on April 1. In this post, I will attempt to argue that the PIL should succeed, and that the Court ought to issue directions to the State authorities to ensure that women are not barred from offering prayers in the inner sanctum.
In order to succeed, the petitioners must prove the following propositions: first, that the right to offer prayers in the sanctum of the Haji Ali Dargah is protected under Article 25 of the Constitution (right to freedom of religion) or, at any rate, is a right at common law; secondly, this right is not overridden by any rights that the Dargah Trust might have under Article 25 or 26 (i.e., the freedom of religious denominations to manage their religious affairs); and thirdly, that the petitioners are entitled to enforce their rights against the State, by requiring the State to guarantee and facilitate their access to the inner sanctum of the dargah.
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On the first proposition: As the Supreme Court has held in a number of cases, such as The Commissioner, Hindu Religious Endowments vs Lakshmindra Swamiar, Jagannath Ramanuj Das vs State of Orissa and Sardar Saifuddin vs State of Bombay, the right to worship, and modes of worship, are protected under Article 25 of the Constitution. Admittedly, it has also been held that the right to worship doesn’t extend to any and every place. But in Ismail Faruqui vs Union of India, while holding that a mosque was not an essential and integral part of the practice of Islam, the Court also held that if a particular place had a “particular significance for that religion”, access to that place for the purposes of worship would be protected under Article 25. It is fairly well-established that the inner sanctum/tomb of a dargah does bear special significance for the followers of the saint in question. Consequently, the petitioners would have an Article 25 right to offer prayers at the tomb.
Even if the right to offer worship at a particular place does not have the status of a constitutional right under Article 25, it remains – at the very least – a civil right, enforceable by a suit. This was the stated position in Das Gupta J.’s judgment in Sardar Saifuddin vs State of Bombay (pointed out above). According to the learned judge, in construing the provisions of the Bombay excommunications legislation, “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 (Venkatramana Devaru vs State of Mysore), 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.” There is nothing in the logic of this proposition that limits it to temples. Consequently, the petitioners have a fundamental right under Article 25, to offer prayers in the inner sanctum of the Haji Ali dargah. Failing this, they have a common law right against obstruction of access to this place of worship by other private parties.
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On the second proposition: as stated above, in part, it is now a well-accepted position of law that insofar as Articles 25 and 26 protect not just matters of doctrine or belief, but also to acts done in pursuance of religion (such as, allegedly, the exclusion of women from the inner sanctum), such constitutional protection is limited to “rituals and observances, ceremonies and modes of worship which are integral parts of religion.” This has been upheld in the cases discussed above – Lakshmindra Swamiar, Mahant Jagannath Ramanuj Das, Venkataraman Devaru; Sardar Saifuddin, etc., and is a proposition of law, is beyond argument. The logic of this argument was explained by Dr. Ambedkar in the Constituent Assembly Debates. He pointed out that unless constitutional protection was limited to essentially religious practices, religion would end up covering an unconscionably vast range of the lived existence of most people..
The distinction has been explained by Justice Sinha, in his dissenting opinion (although not on this point) in Sardar Saifuddin vs State of Bombay. The learned judge noted: “We have therefore, to draw a line of demarcation between practices consisting of rites and ceremonies connected with the 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.”
Consequently, whether the Dargah Trust has an Article 26 (or 25) right to exclude women from the inner sanctum would depend upon whether controlling access to the sanctum amounts to an “essential religious practice”. I suggest that it does not. In Lakshmindra Swamiar, the Supreme Court noted that “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion” (paragraph 20) 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.
In this case, there are two crucial facts that indicate that the exclusion of women from the inner sanctum of the dargah is not an essential religious practice. As the petitioners have pointed out, 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. And secondly, as the petitioners have also demonstrated, 65% 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, and therefore, fall outside the ambit of Articles 25 and 26 altogether.
In sum, the exclusion of women from the inner sanctum is neither sanctioned by the authoritative sources of Islamic religious doctrine, and nor by the present practices of a majority of dargah administrations. Therefore, in accordance with the settled jurisprudence of the Supreme Court, it is not an “essential religious practice” that is protected under Article 25 or 26.
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As to the third proposition: once it has been established that the petitioners have a constitutional right to offer prayers in the inner sanctum of the Haji Ali Dargah, and that the administrators have no corresponding right to exclude them, the onus lies upon the State officials to effectuate that right by ensuring that its exercise is not obstructed by private parties (such as the Trust functionaries. This proposition was upheld by the Supreme Court in Vishakha vs State of Rajasthan, and subsequently in Medha Kotwal Lele vs Union of India.
Therefore, on legal and constitutional grounds, 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.
Constitutional Law and Philosophy 