Name-Neelvi Rai
SAP ID- 500084718
Course- Constitutional Law
CASE ANALYSIS
Name Of The - Dr Noorjehan Safia Niaz v.Haji Ali Dargah
Bench- V.M Kanade
Introduction :
One of the most important mosque of muslim community where the remains of a Sufi Saint Pir Haji Ali Shah Bhukhari is paid respect ie Haji Ali Dargah ,which is located in Mumbai Maharashtra .The dargah is visited by 50,000 people on daily basis,the whole dargah resembles Muslim Architectures and is a floating dargah .Years back in 2012 the trustee of Haji Ali Dargah imposed a sudden and natural ban on the entry of womens saying that under Sharia Law entry of women in a mosque is considered to be a sin as it is a entry to male’s muslim saint,after this the whole matter arosed where women was not accepting the ban who already visted Dargah since the time of its establisment .
In this,the case will be deeply analysed and will be giving an insight about the battle fought by the parties for removing ban on womens freedom of movement in the dargah .
Background:
Haji Ali Dargah was one of the most visisted daragh by the people,ever since it was established people visisted it in large numbers, but suddenly a turnover came upon where in2012 ,the trustee of Haji Ali Dargah imposed a ban on women and said that no women can enter the dargah fom now onwards because under the muslim sharia law ,enetry of women into male’s muslim saint is a sin , this provoked the womens of the community since its establishment they used to pay visit to dargah very often . The Fundamental Right of one section of society was being pitted against the Fundamental Rights of another Section.This basically talks about the priority of fundamental rights over a mere custom or say tradition followed blindly in the name of religion.
The reason for banning was basicaly covering the following points-
*during the time of offering mazaar they used to bow down due to which their body parts get revealed because of their blouse.
*this ban was basically impossed for the safety and security purpose of the women.
This case was filed in the form of a Public Interest Litiigation (PIL).
Facts:
In the referred case,the petitioner of the case,office bearers of the Bharatiya Muslim Mahila Andolan (BMMA) use to allow women of the community to eneter Dargah till 2011,but when they visisted Dargah during June 2012 they found that their entry is being banned and they were not allowed to enter the Dargah.The petitioner in contempted to this also stated that since their childhood which is during the time of the holy shrine establishment they are vissiting Dargah and suddenly their enteries have been barricated. This banning made the women activist move towards the court filling petitions .
Issues:
The following were the issues arrosed by the petitioners:
The BMMA moved towards the court under Artcle 226 of the indian constitution ,challanging the trustee of the shrine for the unreasonable discrimination ban for them by filling up a writ petition.After this,the petitioner also mentioned that the Dargah trut was formed under the courts scheme and as per the scheme the trust cannot impose any sort of bans ,thus this also infringes constitutional rights under Article 14 and Article 15 of the indian constitution.
*thus,the petitioner alleged gender discrimination and arbitary denial of access to women in the sanctrum at the Haji Ali Dargah as it violates the rights of petitioner under the Article 14 and 15 .
Statues:
*Article14 and Article 15 (Rights to equality and non discrimination)of indian constitution
This article states that everyone is equal in front of the law.law of india provide equal protection to every person in india from any sort of discrimination done on basis of caste,race,sex or gender.
*Article 25(1) (Rights to religious freedom)of indian constitution
This article provides freedom of conscience and free profession ,practice and propogation of religion.
*Article 26 (b) (to manage its own matter in affair of religion).
This article deals with freedom to manage religious affair subject to public order ,morality and health and therefore shall have rights to establish and maintain institution for religious and charitable purpose.
Proceedings:
In the following case ,
PETITIONER 1 -Dr. Noorjehan Fiaz
PETITIONER 2- Zakia Soman
RESPONDENT 1- State of Maharashtra
RESPONDENT 2-The Haji Ali Dargah Trust
RESPONDENT 3-Charity commissioner of Mumbai ,Maharashtra
*In the instant case,after the restriction of women for entering the holi shrine the Haji Ali Dargah became Haji Ali for all movements, more than 50,000 womens of different states stood up and came up in support of the movement.The first person who came up and from where it all started was by the social activist Feroze Mithiborewala ,who was the member of Bharitya Muslim Mahila Andolan (BMMA).
*The BMMA, then moved towards the High Court Of Mumbai under Article 226 of the indian constitution and made up a writ petition challanging the trustee for their unreassonable banning.
*The petitioner throughout the case kept on contempting that since childhood they were visiting Haji Ali Dargah and all of sudden their enteries got barricated.They also wrote letter to solicitors of the trust about the issues, to which the reply came from their end was Dargah is open for one and all and no sort of discrimination conditions wilol be interefering in this be it caste ,religion,sex etc.
*The other petitioner side stated that under Article 25 of the indian constitution the trust have right to manageit but they cannot regulate or amend it due to the Article 26 which cannot set aside Article 25 which says that every citizen of india has an equal right to practice their religion beliefs . the banning of entries of women completely violates the fundamental rights under Article 14 and Article 15.
*the BMMA filed a case in the bombay high court in 2014,against the discrimination based on genders.the court in order to this allowed women equal access .
*The learned counsels Syedna Tahar Saifuddin Saheb v the state of Bombay ,TilkayaShri Govindlaji Maharaj v stat of Rajasthan and other came upon in order to support the contentions.
*FURTHER,the learned counsel stated shri anandi mukta sadguru shree muktajee vandasjiswami suvarna jayanti smark v v rudani ors,and other cases were referred for approval of the PIL filled in order for the removing ban by the haji ali dargah.
*After pitching down contentions of the petitioner the court then move towards and stated Article 13of the Indian constitution ,where it is the responsibility of the stae to make sure that no ones fundamental rights get violated and even if any act is inconstitent with the provision then such act stands void
Hence,mentioning this article the court said that they cannot compromise with article 14 and article 15,which is ones equality without any sort of discrimination based on caste religion or sex.
*The court gave the Haji Ali Trust time to rethink over why they banned women enteries,to which the trust gave upon followings points:
-to ensure safety and security of women
-it is considered to be a dreadful transgression when a women enters a male muslim saints.
-under Article 26,the Haji Ali Dargah trust have full authority,to take care of religious affairs.
-the trust also mentioned that before the banning the womens were not allowed to come near the tomb
THE WHOLE PROCEEDINGS WAS DONE IN THIS ORDER:
MARCH 2011-Dr.Noorjehan visited haji where she was allowed to eneter the Dargah
MARCH 2012- Dr Noorjehan again visited Dargah where she was not allowed to enetered
MARCH 14th-State minority rejected her letter stating that they wont participate in this.
14th MARCH-plea was made against PIL by the petitioners.
11th FEBURARY- V.M Kanade was appointed as the bench of justice
21st JULY 2015: The Court gives Haji Ali dargah trust oral suggestions that woman entry is allowed from a different entrance within the sanctorum as was done before 2012.
19th OCTOBER 2015: The Trust submits a ruling to the court that it was a grievous sin to bring women into the nearby vicinity of the male saint. The case is then retained for the last hearing.
9th FEBURARY 2016: Former Advocate general states that the ban should only be allowed if it is mentioned in the Qur’an.
21st APRIL 2016: A nonviolent campaign called ‘Haji Ali Sabke Liye’ is being launched by NGOs, Muslim scholars, and leftist parties.
26th AUGUSTt 2016: The High Court of Bombay removed the prohibition on the violation of a person’s human rights. Six weeks after an appeal by Haji Ali Dargah Trust, who wants to contest it at the Supreme Court, the Court nevertheless remains in its order.
17th OCTOBER 2016: Supreme court prolonged its stay till October 24, 2016, on been requested by the trust.
24th OCTOBER 2016: the trust conceded in the Supreme court to allow women inside the mazaar of the Dargah but asked time for the preparation and removal of the steel barricade. The court gave 4 months for the preparations.
Now,on listening to both the parties the court came to a conclusion.
Judgement Of The Court:
For clarifying the fundamental and necessary piece of any religion and what are not fundamental components, the court keeps an appropriate harmony between Article 25 and Article 26. The fundamental and superfluous acts of religion depend on history, authoritative opinion, standards, and so forth and the Constitution of India secures these fundamental practices. The premise of any strict establishment depends on its critical conviction and practices which are simple to it. What's more, just such practices are secured under the Constitution which are fundamental for the strict establishment and if any change is brought to it the extremely critical nature likewise will be modified. The boycott forced on ladies' entrance in the Muslim male's Saint according to Quran is anything but a fundamental practice and subsequently it can't be advocated as it doesn't influence the actual basics of Islam. The solicitor likewise battled that ladies were allowed to enter the sanctum and this is a reality which was additionally acknowledged by the trust.
2. The Haji Ali Dargah Trust is an altruistic trust which is administered under the Scheme and its goal is to give offices like grants, credit to the penniless individuals, clinical help, fixing the Dargah landmark, building clinics, and so on and regardless of rank, statement of faith, sex, religion, and so on it is open for all. Article 14, Article 15, and Article 25 naturally get joined to public space. The trust can't take the safeguard for Article 26 and can't legitimize the prohibition on ladies' entrance for dealing with their strict issue. Henceforth, the state needs to ensure the basic right of the residents of India and the trust can't abrogate the standards of Article 25.
3. The trust for advocating their limitation additionally fought that for guaranteeing ladies' wellbeing and security they have forced a boycott. So on this, the High Court said that the trust can't legitimize the boycott by taking the boundary of shielding ladies from eve prod and confine the ladies' entrance. Be that as it may, the Haji Ali Dargah Trust has the opportunity to take viable measures for ladies' nevertheless it has no power to boycott ladies in the Dargah on the grounds that it is a public spot and the State likewise needs to guarantee ladies' security at the heavenly spot. Henceforth, the High Court passed the PIL for the ladies and held that the boycott which is forced on the ladies' development in the Dargah encroaches the principal right of them under article 14 for example the right to correspondence, Article 15 for example admittance to public property with no separation dependent on sex, statement of faith, standing, religion, and spot of birth, and Article 25 that is their opportunity to proclaim their strict conviction and practice. The trust anyway discontent with the choice of the High Court of Bombay pursued in the Supreme Court yet the allure was denied and the trust was approached to make legitimate courses of action inside 4 months for women entrance in the Dargah.
Case Analysis:
The Bombay High Court in the moment case has been effective in maintaining the Fundamental privileges of uniformity, non-segregation, and right to rehearse religion of the ladies. The judgment conveyed by the High Court had numerous viewpoints to it; basically including the precepts of sacred privileges of the ladies opposite the Dargah Trust. However, what has been admirable is the treatment of the issues without obstruction in the topic or translation of Islamic laws regarding the fairness of ladies. Ladies rights have been a bone of dispute since freedom and the limitation of section into the Sanctum Sanctorum or Mazar of the Dargah has been one more illustration of the male centric attitude of the networks particularly in the issue concerning religion. The reasons given by the trust as the misreading of the strict text; and the unexpected boycott when the section was permitted till 2012 further focuses to something very similar. One more significant truth dependent on the use of a spot is that the Dargah is likened to a 'Public Space' and subsequently access can be denied dependent on unfair grounds.
The Haji Ali since its erection has not imposed any sort of banning to the womens,to pay in sort of respect in Dargah,but the trust who was authorized in dargah banned the movement of womens in dargah and barricaded their entries .the property where the dargah was made was given on lease by the state government and it qualifies the dargah to be for the public interest.
The ban imposed by The Haji Ali came up violating Article 14 and Article 15 of Indian constitution,not only this but also Article 25 was violated.on the same hand it’s the state duty to see that no rights of anyone gets compromised by any act,the court both the parties equal chances that is respondent Haji Ali as well as the Petitioner Dr noorjehan ,but in this Haji Ali trust failed to justify the ban and at the end the case goes in the hand of petitioner and the banning was removed.
Suggestions and Conclusion:
The courts successfully dealt with the case and provided the judgement in regards to the equality of opportunity as well as social judgement, the suggestion from my side comes only in the regard of time,I feel the respondent parties must have gotten some more time to bring out the pointers for banning the women.
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