As A Muslim Couple Uses Sabarimala Ruling To Open Mosques For Women, Here’s Why SC Faces A Tough Task

On Friday (25 October), the Supreme Court of India sought response of the union government on a PIL seeking entry of Muslim women in all mosques of the country.

The bench comprising of Chief Justice Ranjan Gogoi and justices S A Bobde, S A Nazeer issued a notice to the ministries of law and justice and minority affairs on the plea seeking entry of women in mosques.

Background

The petitioners Yasmeen Zuber Ahmad Peerzade and her husband Zuber Ahmad Nazir Ahmad Peerzade belong to Pune.

In October 2018, the couple wrote a letter to the Mohmdiya Jama Masjid, Bopodi, Pune seeking permission for Yasmeen to enter local mosques to offer namaz.

The mosque administration denied her the permission stating that women were not allowed in the mosques in Pune and other areas, but simultaneously, said that the matter had been referred to Daud Kajha and Daud Ullum Devvand.

The couple never heard back from the Daud, however, after a reminder letter in November 2018, the Imam of Jama Masjid, Bopodi, Pune reiterated his refusal to allow Yasmeen in the mosque and said that he will refer the matter to the higher authorities.

The couple said that the reasons cited by the Imam to not allow women in mosques were vague and approached the court for redressal of their grievances. The couple filed a Public Interest Litigation (PIL) on the matter in the Supreme Court on 26 March 2019.

The PIL

In their PIL, the couple argue that the practice of not allowing women to enter the mosques is in violation of the fundamental rights of equality, freedom of religion, life and liberty as enshrined in the Constitution of India.

The couple argues that the practice is in violation of Articles 14, 15, 21, 25 and 29, and relies substantially on the Sabarimala judgement of the Supreme Court given in September 2018. Based on the judgement, the petitioners argue that religious customs cannot be used to shield violation of women’s rights of worship and, further, their dignity.

Interestingly, the petition also refers to Article 44 - which encourages the State to secure a uniform civil code for all citizens, by eliminating discrepancies between various personal laws currently in force in the country.

The petitioners argue that the practice is also against the directive principle of state policy given by the constitution-makers in the said article.

Islam and gender segregation

Yasmeen and her husband have argued that the practice of not allowing women in mosques alongside men is not mandated by Quran and various Hadiths. However, this remains a controversial issue.

Many Islamic scholars speak against intermixing of women and men inside the mosques, and even in mosques where men and women both can enter, the men gather in the front while the women stand together at the back.

Recently, the debate over gender segregation in Islam received global attention as many developed countries with laws against gender segregation witnessed meetings etc organised by Muslim groups with explicit segregation.

In this year’s football world cup, an Iranian woman, now famous as the ‘blue girl’, burnt herself alive after she was not allowed to watch the match in the stadium under the Islamic law of gender segregation instituted by Iran.

In India, majority of the mosques do not allow women to pray. In some big mosques, there are separate prayer enclosures for women. Islamic scholars also mandate certain strict criteria for the women to go to mosques-like complete hijab from head to toe, no distracting adornments like perfume, and permission from the husband to visit the mosque.

Many Muslim women are speaking up against such customs.

Badar Sayed, a Chennai-based lawyer and chairwoman of Tamil Nadu's Waqf Board also said that it was extremely important for women to be a part of a mosque congregation.

"Sometimes the sermons relate to women. Women should be present, listening in and finding out what they are all about," she says, adding that the male-dominated jamaats were often biased against women.

Speaking against the male female segregation in the mosques, Asra Nomani said that the mosque was not just a prayer space, but a community hall. She said that the result of sequestering women into a corner is that they are excluded from the policy making in the mosques.

“And so, you allow these places to become safe houses for ideology that may not be peaceful always. And you don’t allow women to be a part of the policy of the congregation,” she says.

Nomani’s statement reveal the reason behind strong opposition to women’s demand for mixed mosques.

Mosques not only perform the function of a prayer hall, but also a political-educational centres. In fact, several scholars have pointed out the connection between Mosques, Madrassas and spread of radical Islam.

Therefore, inclusion of women on equal basis in the mosques might threaten the existing power-structures and the functions a mosque performs.

What the future holds

Given the precedent of Sabarimala judgement, it seems that the Supreme Court has no choice but to uphold the constitutional rights under Articles 14, 15, 21 and 25 over the customary practice.

However, the road isn’t that straightforward. For starters, the Islamic scholars may argue that the practice of separating men and women in the mosques has religious sanction, and Muslims, as the religious minority have the constitutional right to protect their religious practices.

The courts can then perform an ‘essential practice’ test, but religious scholars can quote different Hadiths etc, along with other similar well-established Islamic practices like Purdah, to prove that the segregation of women from men in mosques is indeed an essential practice of Islam.

In case of Sabarimala, barring women of menstruating age from the temple was a cultural practice prevalent in the particular shrine, and not the temples all over India.

Unlike Hindus and other Indic groups like Jains, Buddhists, Sikhs, etc, Muslims and Christians are exempted from the specific mandate given to state for social reform in Part III of the constitution.

However, allowing the entry of women in mosques is far more important than the Sabarimala case. As pointed out by the Muslim women activists, the mosques aren’t merely a site to pray, but also form community policies and discuss various political issues.

Therefore, women not being allowed to enter mosques has direct effect on their say in the community- including on those matters that effect them directly and deeply. Unlike mosques, Hindu temples don’t perform such functions and not allowing women in temples only affects their individual right to worship (Article 25).

The tough journey of Indian Muslim women to get Triple Talaq abolished in the country is telling of the challenges the court would face in figuring out a solution.

The Triple Talaq judgement, the majority was itself criticised for seeking religious sanction (‘what is bad in theology is bad in law’) instead of directly and confidently upholding the values of individual liberty and gender equality over discriminatory customs.

This pick and choose of different religious schools, scholars and their interpretations, looking for references to practices in Islamic nations by the court didn’t only weaken the ground of universal rights, but also gave an impression that the justice system is held hostage by factors other than justice in accordance with the law of the land.

A judgement on the lines of Triple Talaq will also raise accusations of appeasement. After Sabarimala and the police excesses that followed the judgement, public will have a keen eye on how the court deals with this petition which is already in the limelight.

It remains to be seen whether the court would show the same enthusiasm for protecting rights of women as it did in the case of Sabarimala. If not, the perception among the Hindus that they are punished for the decentralised and plural nature of their faith, while being rigid and monolithic is rewarded, will further strengthen.