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By this PIL, filed under Article 226 of the Constitution of India, the petitioners, who are
social activists, have alleged gender discrimination and arbitrary denial of access to women
in the sanctum sanctorum at the Haji Ali Dargah The petitioners state that they are the office
bearers of `Bharatiya Muslim MahilaAndolan' - a national secular autonomous mass
movement of Muslim Women with over 50,000 members in 15 StatesAccording to the
petitioners, since their childhood, they were visiting the Haji Ali Dargah, the Dargah of Pir
Haji Ali Shah Bukhari (R.A.), the patron SQPathan 3/56 pil.106.14.doc saint and during their
visits, were permitted to enter the sanctum sanctorum where the saint lied buried, through a
separate entry earmarked only for women to enable them to offer prayers. They have stated
that in March, 2011, when the petitioner No. 1 along with other activists, visited the Haji Ali
Dargah, they were permitted to enter the sanctum sanctorum to offer prayers. 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. According to
the petitioners, the said letter was clearly contrary to the issue raised and the actual realities
faced by the petitioners i.e. women were not being allowed in the sanctum sanctorum of the
Haji Ali Dargah. The petitioners thereafter, again requested the respondent No. 2 Trust to
discuss the issue and come to a consensus and also requested the then State Minister of
Women and Child and the State Minority Commission to facilitate a dialogue and to
amicably resolve the said issue. The petitioners surveyed several dargahs which allowed
entry of women in the sanctum sanctorum and have annexed to the petition, a list of the said
dargahs. The petitioners have stated that they had received a letter from the State Minority
Commission on 14th March, 2014 wherein, the Commission stated that the matter was
beyond its jurisdiction. The petitioners again visited the dargah on 5th April, 2014 and
noticed that nothing was done pursuant to the protest and representation and that the women
continued to be barred from entering the sanctum sanctorum of the Dargah. The petitioners
also filed a complaint in the office of the respondent No. 3, Charity Commissioner, against
the SQPathan 6/56pil.106.14.doc respondent No. 2 Trust stating, that the activities of the
Trust violated the Constitution of India. Aggrieved by the fact, that their representations were
not considered, the petitioners filed the aforesaid PIL seeking, amongst other reliefs, an
appropriate writ, order or direction in the nature of writ of mandamus and to declare that
female devotees have an equal right of entry and access to all parts including the sanctum
sanctorum (mazaar) of the Haji Ali Dargah on par with the male devotees. They have also
prayed for an order directing the respondent No. 2-Trust, to restore status quo ante, by
permitting female devotees to enter the sanctum sanctorum of the Haji Ali Dargah on par
with the male devotees. The other justification given by the respondent No. 2 Trust for
imposing the ban was the safety and security of the women, in particular, to prevent sexual
harassment of women at places of worship. It is stated that the said ban is in keeping with the
decision of the Apex Court, wherein stringent directions have been issued to ensure that there
is no sexual harassment to women at places of worship. We may note, that the said
submission is completely misplaced and misconceived and reliance placed on the judgment
of the Apex Court in the case of The Deputy General of Police &Anr. v. S.
Samuthiam(supra) (dated 30th November, 2012) is completely out of context, inasmuch as,
the directions were issued when the Protection of Women from Sexual Harassment at Work
Place Bill, 2010 was under consideration and as the provisions of that Bill were not sufficient
to curb eve-teasing. It is in these circumstances, certain directions were issued by the Apex
Court and directions were given to the State Governments to take effective and appropriate
measures to curb instances of eve-teasing. It is also pertinent to note, that at that time, there
were no suitable provisions SQPathan 54/56 pil.106.14.doc to curb eve-teasing. The said
judgment was also prior to the Criminal Law (Amendment) Act, 2013. Reliance placed on
this Judgment is clearly misconceived and cannot justify the ban imposed by the respondent
No. 2 Trust. 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. 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 Supreme Court laid down this judgment on August 22, 2017 in 3:2 majority holding the
practice of Triple Talaaq unconstitutional. The majority judgment was written by Justice
Nariman for himself and on the behalf of Justice Lalit, while Justice Joseph concurred by the
majority opinion Chief Justice Kehar for himself and on behalf of Justice Nazeer wrote the
minority opinion. While the majority upon lengthy discussion came to the conclusion that Triple
Talaq is not an essential religious practice but minority bench found this practice to be an
essential religious practice.
Under Article 25 of the Constitution the state cannot take away the essential religious practice of
a person. Therefore, if a practice which is arbitrary and not an essential religious practice it will
be hit by the exception laid down u/a 25. Therefore, the whole issue was whether or not the
practice is an essential religious practice of Islam.
Therefore, as per majority it was held that the Triple Talaqor Talaq-e-biddatis not protected by
the exception laid down in Article 25 i.e. the court found the said practice not an essential
element of Islamic religion. The court justified its point of view in the sense that although it si
practiced by the Hanafi School but it is considered sinful in it. Triple Talaqis against the basic
tenets ofQuoran and whatever is against Quoranis contrary to Shariattherefore,what is bad in
theology cannot be good in law. The majority bench relied on its earlier
decision ShamimAra[1]which held that this practice of Triple Talaq is against both theology and
law and just because it is followed by a large number of people it cannot be validated. Therefore,
such practice is declared unconstitutional and set aside.
Article 25 in it carries the right of every person to freely practice and propagate any religion of
choice and such practice is only restricted in the context of the following exceptions:
1. Public Order
2. Health
3. Morality
4. Other Provisions of Part III of the Constitution
Although the said practice has no relevance to the first three exceptions but the said practice is
surely against other provisions of Part III namely Article 14. The said practice is in violation of
the Fundamental Right of equality since it is against the rights of women as they have no say in
the declaration of divorce unlike in other religions. Nariman& Lalit JJ. held that the impugned
practice is a tool by which marital tie can be broken on whims of Husband without any attempt
of reconciliation to save it. This form of Talaq therefore, is in violation of Article 14 and liable to
be struck down by the courts.
What is an essential religious practice? It depends on the background, history and tenets of the
religion. If some practice is not prohibited then it does not necessarily mean that such practice is
an essential religious practice. Essential religious practices are those on which the religion is
founded upon. Essential religious are those which are fundamental to the profession and
propagation of the religion. If taking away of a practice causes a substantial change in the
religion then such practice can be called as ‘an essential religious practice.’ Only such practices
are protected in Article 25(1). The usurpation of religious practices through state intervention
will result in violation in rights mentioned in Article 25(1) & not with the usurpation of
circumstantial and non-essential practices. The fact that majority of Islamic countries have done
away with the said practice also reflects that the said practice is not one which will be called as
an essential religious practice.
However, Justice Khehar, writing the minority opinion held that such practice is an essential
religious element of Islam. The Minority bench of the court justified this stance on the ground
that this practice is followed by a large population of people. Since this practice has the sanction
of religious denomination and followed by an overwhelming majority of Muslim population, the
said practice is declared to be constitutional and an essential religious practice.
Justice Kehar was, as far as the exceptions mentioned in Article 25(1) of the Constitution, of the
opinion that the impugned practice is not violative of any of these exceptions since Shariat or
Muslim Personal law is not based on any state legislative action.
Critical Analysis
The Triple Talaq judgment is widely appreciated throughout the jurisdictions as a protection
shield against the social evil such as this practice promoted. The majority bench on the face of it
criticized the government for not making relevant laws to prohibit such a regressive practice.
This act allowed the husband to end the marital tie on his whims and fancies, thereby making the
life of the women hell. The Muslim women have since many years demanding the protection
from such a regressive and bad practice and finally it was the apex court which gave them the
appropriate remedy Justice Nariman at the outset said that as soon as he would find any
violation of Fundamental Right, he will strike down the practice. There was no question that the
said practice was an essential religious practice or notsince majority of Islamic nations have
already banned the practice & in India only Hanafi School practices it. Therefore, it cannot be
said that the practice is one of religious importance. The majority finding the said practice in
violation of Article 14 as well as of the exceptions laid down in Article 25(1) struck down the
regressive act with 3:2 majority. The bench observed that merely because the practice is
widespread and continuing from time immemorial it cannot be held as an essential religious
practice. Hinduism also after finding Sati Pratharegressiveremovedit from the religion. Sati was
also practiced widespread and practiced since time immemorial. Therefore, the court arrived at a
very correct judgment.
The majority started its judgment by the phrase “what is bad in theology cannot be good in
law”. This statement makes it clear the stance of the majority bench on the impugned act. One
does not need to dwell down into the details and should understand that if Triple Talaqhad been
a essential religious practice of Islam then in that case it would not have been banned in almost
all Islamic nations. Further, the said practice is only practiced in Hanafi School who itself
considers it sinful. Therefore, the majority bench correctly held such practice as unconstitutional.
The nine judges of the Court gave six separate opinions, producing what must be a contender for
the longest reasoned judgment ever produced by a court. These judgments defy short summary
and only a few key themes can be picked out.
The leading judgment is a tour de force, given on behalf of four judges by Dr D Y Chandrachud
J in 266 pages. It deals, in detail, with the Indian domestic case law on privacy and the nature of
constitutional rights. It also considers Comparative Law on Privacy (from England, the US,
South Africa, Canada, the European Court of Human Rights and the Inter-American Court of
Human Rights). Various criticisms of the privacy doctrine – from Bork, Posner and feminist
critics – are addressed.
The problem for the Petitioners was that the Indian Constitution [pdf] does not contain an
explicit privacy right. Nevertheless, the Indian Constitution is a living instrument. The Courts
have sought to give effect to the “values” which the Constitution it contains by interpreting
express fundamental rights protections as containing a wide range of other rights. The crucial
provision for this purpose is Article 21 which provides that
“No person shall be deprived of his life or personal liberty except according to procedure
established by law”
Chandrachud J points out that this provision has been interpreted as containing, inter alia, the
rights to a speedy trial, legal aid, shelter, a healthy environment, frredom from torture, reputation
and to earn a livelihood (for a list see [150]). Privacy is an incident of fundamental freedom or
liberty.
In an important section of the joint judgment headed “Essential Nature of Privacy”, Chandrachud
J analyses the concept of privacy as being founded on autonomy and as an essential aspect of
dignity ([168] to [169]):
“Dignity cannot exist without privacy. Both reside within the inalienable values of life, liberty
and freedom which the Constitution has recognised. Privacy is the ultimate expression of the
sanctity of the individual. It is a constitutional value which straddles across the spectrum of
fundamental rights and protects for the individual a zone of choice and self-
determination” [169]