High Court of Bombay

Dr. Noorjehan Safia Niaz v. State of Maharashtra

MANU/MH/1532/2016

26.08.2016

Constitution

Trust has no right to discriminate entry of women into a public place of worship under guise of `managing affairs of religion'

In instant case, issue involved is relating to entry of women in sanctum sanctorum of Dargah in light of the constitutional provisions. By this PIL, filed under Article 226 of the Constitution of India, Petitioners, who are social activists, have alleged gender discrimination and arbitrary denial of access to women in sanctum sanctorum at Haji Ali Dargah.

High Court held that, Trust, even under Scheme, cannot enforce a ban which is contrary to Part III of Constitution of India. Aims, objects and activities of Haji Ali Dargah Trust as set out in Scheme are not governed by any custom, tradition/usage. Objects of Haji Ali Dargah Trust are in respect of purely secular activities of a non-religious nature, such as giving loans, education, medical facilities, etc. Neither objects nor Scheme vest any power in trustees to determine matters of religion, on basis of which entry of woman is being restricted. The Trust has no power to alter or modify the mode or manner of religious practices of any individual or any group.

Admittedly, Haji Ali Dargah Trust is a public charitable trust. It is open to people all over world, irrespective of their caste, creed or sex, etc. Once a public character is attached to a place of worship, all rigors of Articles 14, 15 and 25 would come into play and respondent No. 2 Trust cannot justify its decision solely based on a misreading of Article 26. Trust has no right to discriminate entry of women into a public place of worship under the guise of `managing the affairs of religion' under Article 26 and as such, State will have to ensure protection of rights of all its citizens guaranteed under Part III of the Constitution, including Articles 14 and 15, to protect against discrimination based on gender. Infact, right to manage the Trust cannot override right to practice religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed under Article 25 of Constitution. Even considering said fact, protection claimed under Article 26 is clearly misconceived.

Respondent No. 2, under guise of providing security and ensuring safety of women from sexual harassment, cannot justify ban and prevent women from entering the sanctum sanctorum of the Haji Ali Dargah. Trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in 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. It is also duty of the State to ensure the safety and security of the women at such places. State is equally under an obligation to ensure that, 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.

High Court allowed the Petition holding that ban imposed by Respondent No. 2 Trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah contravenes Articles 14, 15 and 25 of Constitution, and as such restore status-quo ante i.e. women be permitted to enter the sanctum sanctorum at par with men.

Relevant

Articles 14, 15, 26 and 25 of Constitution of India

Tags : Fundamental rights Women Entry Haji Ali Dargah

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