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#GenderJustCourts - Reclaiming the right to pray: Dr. Noorjehan Safia Niaz & Anr. Vs. State of Maharashtra & Ors.

December 4, 2017

This post is part of a series that seeks to explore judgements relating to gender justice and equality in the Indian Courts. As a common law system, we know that it is the combination of legislation passed in parliament and interpretations made by judges that make up the laws that affect women and girls across India. We hope this series provides an insight into how past cases might impact future ones.

 

The Right to Pray case, 2016, is a landmark judgment towards furthering equal rights for women to pray and worship and ensuring that the State takes utmost care in providing security and protection from sexual harassment at the place of worship, filling in the legal void that had existed until then in this regard.

 

Background of the case

This case was filed in the form of a Public Interest Litigation (PIL) before the High Court of Bombay by the office bearers of the Bharatiya Muslim Mahila Andolan (BMMA). This case was filed as a result of gender discrimination and arbitrary denial of access to women in the sanctum sanctorum at the Haji Ali Dargah, after the Petitioners had exhausted all the alternative remedies available to them: including approaching the Charity Commissioner and attempting to reason with the Haji Ali Dargah Trust on multiple occasions. The petitioners are two women, they state that prior to the unprecedented and arbitrary ban they used to visit the Haji Ali Dargah without any restrictions. The Trust imposed the ban sometime in 2012.

 

Highlights of the case

While the case caught a lot of media traction as a religious debate, at its core was the issue of equality of rights amongst genders, here specifically on the right to pray. It is also interesting to note that the Petitioners had visited other Dargahs which allowed entry of women in the sanctum sanctorum and had attached a list of such Dargahs to their petition, this clearly shows that the ban was not one arising from religious scriptures but instead one enforced by religious leaders.

 

The Court studied the protections offered by the Constitution of India to individuals and religious bodies and it identified the correct teachings of the religion through the study of various religious texts and customs that have been followed for years and thereafter pronounced its judgment, wherein it held that the rules made by the Trust were unjust and self-made and were not found in religious texts or practices.

 

The Courts deemed the arguments put forth by the Trust as non persuasive or substantive. The Trusts argued that women were denied access to the inner sanctum of the mosque as this involved several risks: the visibility of their breasts when they offered prayers, permitting them entry when they were on their periods, and even opening room to forms of sexual harassment, these points were held to no merit by the Court. The Court held that the ban imposed by the Trust was in contravention of Articles 14, 15 and 25 guaranteed by the Constitution of India.

 

The judgement focuses on ‘Gender Equality’ as a fundamental right along with the ‘Right to Pray’, broadening the scope of fundamental rights and protections further. The judgment also looks at the protection offered to religious Trusts under Article 26 of the Constitution of India and brings out how the Trust in this case has misconceived its application. The judgment also establishes that the Trust or any other religious body cannot enforce non-essential religious practices and seek protection under Articles 25 and 26.

 

Towards Gender Justice? Definitely!

This judgment of the Court was definitely a step forward towards gender equality. The language of this judgment is unambiguous and has very craftily abstained from violating any religious doctrine, ensuring the focus remains on the issue of equality in terms of the right to pray. This judgment has also care taken in framing its reasoning in legal and constitutional terms to give a sound backing to this equal right to pray. This judgment shows a well balanced coexistence of gender rights and religious rights

 

Implications of the case

This judgment is a landmark precedent and has bridged the way for further liberation of woman. It puts an end to the deadlock of superstition and religious barriers in India. The judgment also holds the State accountable for providing adequate protection to women at places of worship and reiterates that the right to manage religious affairs cannot override the right to practice religion itself.

 

In addition, this judgment of the Court has opened doors for women to challenge other malpractices which may have been imposed under the guise of religion or tradition.

 

 

 

Sudarshan M. Mohta is a 25 year old Mumbai based lawyer practicing media and entertainment law. He actively engages in addressing issues pertaining to gender justice and women’s empowerment and contributes pro bono in this sphere.

 

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