Grave issue: How an important technicality influenced the landmark Haji Ali ruling

As the lead counsel in Public Interest Litigation No. 106 of 2014, better known as the Haji Ali case, I am privy to the pleadings and proceedings on the record that led to the much-lauded 56-page judgment. Indeed, all these documents are now a part of the public record in case any researcher wishes to delve into them in future.

As everyone knows by now, the crux of the case was the ban on entry of women, some time after 2011, inside the sanctum sanctorum housing the mazaar or tomb supposed to contain the body of a saint known as Peer Haji Ali Shah Bukhari. This decision was taken after the trustees of the Dargah Trust “were made to realise through various Muslim Clergy’s and Teachers that the act of allowing the women inside the sanctum of the Dargah is a sin.” (sic). (This is quoted verbatim from paragraph five of the Trust’s affidavit in reply to the PIL).

Very little is in fact known about this saint Peer Haji Ali.

According to the official website of the Haji Ali Dargah Trust, “Whatever is known about Pir Haji Ali Shah Bukhari (R.A.) is learnt from the caretakers and trustees from generation to generation as the saint never married and has no descendants.”

The information provided on the website states that the Pir had travelled to India from his hometown with his brother. They finally reached the shores of Mumbai – near Worli or at some place opposite the present Dargah site. His brother went back to their native place. However, the Pir had decided to reside at that place permanently for the spread of Islam.

The Pia Haji Ali Dargah. Photo © Farah Mahbub

The Pia Haji Ali Dargah. Photo © Farah Mahbub

The official website further states that “Till his death, the Pir was praying and giving knowledge about Islam to the people and devotees regularly visiting him. Before his death he had advised his followers that they should not bury Him at any proper place or graveyard and should drop his shroud (‘kafan’) in the ocean, such that it should be buried by the people where it is found. His wish was obeyed by his followers. That is why the Dargah Sharief is built at the very site where his shroud came to rest in the middle of the sea where it was perched on a small mound of rocks rising above the sea.”

The official website then acknowledges that the “tomb and Dargah Sharief were built in the years to come”.

No particulars regarding the date (even approximate) of the demise of Peer Haji Ali Shah Bukhari are given, nor any information given on this website about the years in which the tomb and Dargah were constructed.

The most important aspect of this narrative is the acknowledgment of the fact that there never was any physical body in the tomb!

Yet, the religious justification for banning women predominantly included an argument about the embargo on women visiting ‘graves’, which is supposed to be a sin.

The Concise Oxford English Dictionary defines a ‘tomb’ as “an underground vault for the burial of the dead” or “an enclosure cut in the earth or in rock to receive a dead body”. Therefore, to call Haji Ali Dargah the ‘tomb’ of a dead saint knowing full well that there never was any body laid to rest in it seems to stretch the meaning of the word too far.

The official website does not deny that all the stories about miracles of the Peer are from “rivayat” (legends). So what are the historical facts?

According to a letter written by the Trust’s solicitors on 2 January 2013 to the principal secretary of the Minorities Development Department of the Government of Maharashtra, “the Haji Ali Dargah was constructed and came into existence in or about the year 1900” and “is managed and maintained by a charitable and religious trust which was formed in or about the year 1916 under a decree passed by the Hon’ble High Court of Judicature at Bombay.”

Thereafter, according to the Trust’s solicitors, “at the request of the then trustees of the Haji Ali Dargah, the Collector of Bombay in or about the year 1927 demised the present lands to the Haji Ali Dargah Trust on a lease of 999 years on a nominal rent” and the trustees “have been using these demised lands for the specific purposes for which the same have been let out. The pathways leading to the Dargah Complex were laid in or about the year 1944”.

During the course of the hearings of the PIL, the entire record and proceedings available with the Charity Commissioner were summoned and filed in the High Court. These vital documents contain the relevant proceedings of Suit No. 1337 of 1916 filed in the Bombay High Court by ‘The Honourable the Advocate General of Bombay (Plaintiff) versus 1. Abdul Karim Haji Essa Haji Fadla and 2. Haji Jan Mohamed Haji Mohamed (Defendants)". In that suit, by consent of parties and after calling for a Commissioner’s Report, a consent decree was passed by Justice Macleod of the Bombay High Court and a “Scheme for the Management and Administration of Haji Ali Durga and the properties appertaining thereto” was framed on 22 January 1919. For those with a penchant for history it would be of interest that at that time, King George V was the Emperor of India.

The scheme contained in the ‘consent decree’ has recorded that it is for “the Management of the Charitable Trusts created by Haji Essa Haji Fadla in or about the year One Thousand Eight Hundred and Sixty Five in respect of a Durga erected by him at Worli over the grave of Haji Ali, a Mahomedan Pir, known as Haji Ali Durga and the Mosque and other properties appertaining thereto.”

Thus it is clear that the High Court merely recorded what was agreed to in the consent terms in the suit based on the Commissioner’s Report. As a result, a record was created that the Dargah was erected over ‘the grave’.

Once again, if the definition of a ‘grave’ is taken into account, it is “a trench dug in the ground to receive a coffin on burial” or “the place where someone is buried, often marked by a mound or stone” (Concise Oxford Dictionary). When it is an admitted fact that there is no body buried beneath the Dargah, can such a place even be called a ‘grave’? Even assuming the ‘Legend of the Floating Shroud' (kafan) to be authentic, would burial of a piece of cloth be tantamount to clothing the monument in the garb of a ‘tomb’?

These are grave issues and we live in grave times. But when the better half of our populace is debarred from any place on the ground (among others) that to visit a ‘grave’ is a grave sin, is it not worth considering the fact that the whole basis of the ban on women is misconceived? Visiting a place where some piece of cloth lies buried can never be a sin… by any stretch of imagination.

The writer is an advocate practicing in the Bombay High Court

Updated Date: Sep 10, 2016 08:30 AM

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