Haji Ali row: Supreme Court extends stay on Bombay HC order on women entry

Supreme Court extended the stay on Monday granted by Bombay High Court to facilitate an appeal against its decision to lift the ban on entry of women near the sanctum sanctorum of the famous Haji Ali Dargah till October 24, when it will hear the matter.

As the case did not reach the board for hearing, the counsel for the Haji Ali Dargah Trust urged the bench comprising Chief Justice TS Thakur, Justice AM Khanwilkar and DY Chandrachud to extend the stay until the next date of the hearing. The bench accepted the oral plea of senior advocate Gopal Subramaniam in this regard. The apex court had on October 7 expressed hope that the Trust, which has challenged the high court judgement, "will take a stand which is progressive".

Subramaniam had also assured the bench that he was on a "progressive mission" and said all holy books and scriptures promoted equality and nothing which is regressive in character should be suggested. The bench had also remarked that "if you are not allowing both men and women to go beyond a point, there is no problem. But if you are allowing some to go beyond a point while others are not, it is a problem."

The bench, which recorded that an identical issue has been raised and was pending before the Supreme Court relating to the Sabarimala Temple in Kerala, said "the problem is not only among Muslims, but among the Hindus also".

The counsel, appearing for a women's group which has challenged the practice of the Trust not to allow women near the sanctum sanctorum, had submitted that the position was different before 2011 than what it is today. The Trust moved the apex court challenging the Bombay High Court order lifting the ban on women from entering the sanctum sanctorum of the renowned Muslim shrine in South Bombay. 

The High Court on August 26 had held that the ban imposed by the Trust on women from entering the sanctum sanctorum of the Haji Ali Dargah, contravened Articles 14, 15 and 25 of the Constitution and said women should be permitted to enter the sanctum sanctorum like men.

The High Court had allowed a PIL filed by two women, Zakia Soman and Noorjehan Niaz, from NGO Bharatiya Muslim Mahila Andolan, challenging the ban on women's entry into the sanctum sanctorum of the dargah from 2012. It had granted a six-week stay on the order on a request by the Dargah Trust to enable it to appeal before the Supreme Court.

The high court had held that the Trust had no power to alter or modify the mode or manner of religious practices of any individual or any group. The High Court in its 56-page judgement had also noted that the "right to manage the Trust cannot override the right to practice religion itself".

It had said the trust has not been able to justify the ban legally or otherwise. Hence it cannot be said that the prohibition was an essential and integral part of Islam and whether taking away that part of the practice would result in a fundamental change in the character of the religion or belief.

It had also refused to accept the Trust's justification that the ban was imposed for safety and security of women, in particular, to prevent sexual harassment at places of worship. The Trust had claimed that the ban was in keeping with an order of the Supreme Court wherein stringent directions have been issued to ensure that there is no sexual harassment to women at places of worship.

The court had noted that the aims, objectives and activities of the Haji Ali Dargah Trust were not governed by any custom or tradition and held that it was a public charitable trust and hence, open to people all over the world, irrespective of their caste, creed or gender. The Maharashtra government had earlier told the court that women should be barred from entering the inner sanctorum of Haji Ali Dargah only if it is so enshrined in the Quran.