Ban prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah held unconstitutional

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Bombay High Court: While dealing with petition filed under Article 226 of the Constitution of India alleging gender discrimination and arbitrary denial of access to women in the sanctum sanctorum at the Haji Ali Dargah, the division bench comprising of V.M. Kanade and Revati Mohate Dere JJ., held the ban violative of Article 14, 15 and 25.

In the present petition, the petitioners stated 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, 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.

After perusal of the arguments advanced, the Court said that the respondent No. 2, under the guise of providing security and ensuring safety of women from sexual harassment, cannot justify the ban and prevent women from entering the sanctum sanctorum of the Haji Ali Dargah. The respondent No. 2 Trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in the sanctum sanctorum, but by taking effective steps and making provisions for their safety and security e.g. by having separate queues for men and women, as was done earlier. The Court further stated that 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 guaranteed under Articles 14, 15 and 25 of the Constitution are protected and that the right of access into the sanctum sanctorum of the Haji Ali Dargah is not denied to women. The Court held the ban imposed by the respondent No. 2 Trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah violative of Articles 14, 15 and 25 of the Constitution, and therefore restored status-quo ante i.e. women be permitted to enter the sanctum sanctorum at par with men. The State and the respondent No. 2 Trust directed to take effective steps to ensure the safety and security of women at the said place of worship. [Dr. Noorjehan Safia Niaz v. State of Maharashtra, 2016 SCC OnLine Bom 5394, decided on 26.08.2016]

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