Legal luminary Shreehari Aney has criticised the Supreme Court’s verdict in the Haji Ali matter that “women will have to make do with incomplete right to equality”.
In an exclusive interview to The Sunday Guardian, mincing no words, Aney said, “This is a pronouncement which is adverse to the right to equality of women. Unfortunately, women will have to make do with incomplete right to equality.” A group of Muslim women from the Bharatiya Muslim Mahila Andolan (BMMA) entered Haji Ali dargah’s sanctum sanctorum this week, were not allowed to touch the tomb.
India already ranks an abysmal 110th among 149 nations in the Sustainable Development Index. An important Sustainable Development Goal is the achievement of gender equality and empowerment of all women and girls. The state and its mechanisms are expected to uphold this goal. But women still have a protracted battle to fight here even for their right to pray equally. Sadly, activists say the much publicised Haji Ali battle is another example of defeat, rather than victory.
“Though this march inside Haji Ali was portrayed as victory for women’s equal rights, it is, in fact, defeat of their rights. If anything, this is the victory of the patriarchal Haji Ali trust and its parochial mindset,” a lawyer associated with the case told The Sunday Guardian. Aney said that even the BMMA knows that the SC judgement is not a victory for women’s right to equality, but it may not be keen to carry the legal battle ahead.
“The Supreme Court’s final judgement takes women’s rights back. It seems to be a settlement. It doesn’t seem to have come to grips with the real injustice that was sought to have been corrected. It may have eased the situation, but it has certainly not delivered equality. It has only curtailed it. This kind of equality is against the idea enshrined in the Constitution,” Shreehari Aney said.
“The question is, can women have the exact status as men have, or not? If you curtail the rights of men to ensure that women don’t get it, it doesn’t mean you have given maximum rights to women. Her right to be what she needs to be, doesn’t depend on men’s rights. It is independent of that. Have you given it to them? No. You have failed to uphold their independent right to equality. In fact, you have taken it back. In that sense, it is regressive. And unfortunately, today, the matter stands concluded. Women will have to make do with incomplete right to equality,” he said.
It is pertinent to note that Aney was instrumental in shaping the Maharashtra government’s progressive stand in the Bombay High Court, supporting women’s equal right to pray. That stand had paved way for the petitioners’ success in the Bombay High Court, which had held in its 26 August order that the status quo ante should be restored. Before 2011, women devotees were not only allowed to enter the Haji Ali shrine, but were also allowed to touch the tomb of the saint. But the trust restricted women’s access to the sanctum sanctorum since 2012.
It is learnt from reliable sources that the advocate representing Bharatiya Muslim Mahila Andolan was himself not happy with the verdict. BMMA is the organisation of Muslim women who had petitioned the Bombay High Court against the Haji Ali Trust’s decision to disallow women from entering the sanctum sanctorum of the shrine. The women entered the sanctum sanctorum this week, but were not allowed to touch the tomb. Just hours before that, the BMMA held its national council meeting in Mumbai where the lawyer representing them was felicitated.
But sources present at the meeting said that he expressed his displeasure during his speech. “Today, as I stand in front of you here, I am not happy. This is not our victory. In fact, just to ensure that women don’t get their rights, even men have been denied the right now. To put it simply, if there is 10 kg sugar in one of the weighing scales, and 5 kg in the other, and if the court has ordered that both be made equal by adding 5 more kilos in the other weighing scale, they (the Haji Ali trust) have reduced 5 kg from the heavier weighing scale. Now, this means both the scales have 5 kg each, instead of 10 kg. Is this true victory?” advocate Raju Moray is learnt to have asked the national conclave of BMMA just hours before the group of women entered the Haji Ali dargah this week.
When contacted, he said, “Not allowing access to men in order to bring them on par with women is not the same as allowing access to women on par with men, and it certainly cannot be termed as ‘restoration of the status quo ante’ as directed by the High Court on 26 August. The High Court order is thus being bypassed rather than implemented.”
In a chat with this correspondent, Zakia Soman, co-founder of BMMA, admitted that the trust had succeeded in not giving equal rights to women. “As soon as the trust made their submission to the court (about constructing a mujawar area around the tomb to restrict the access of both men and women near the tomb), we said that they were twisting the meaning of right to equality. The patriarchal stand of the trust has not changed one bit even today. But we are already fighting on so many fronts. We are working against triple talaq. There are personal attacks on us. How much burden will you put on the shoulders of the women? We are hard-pressed to fight different battles. Now, there has to be a large scale social mobilisation around this. Different parts of society will have to participate,” she said.
When asked about the discussions on the issue in the national council, she said that they believed it was their legal and moral victory. “It would have been ideal if they would have restored the status quo. But now, there is no discrimination. Beyond this, the patriarchal mindset of the keepers of all the shrines has to be challenged at the societal level,” she said.