Saji Koduvath, Advocate

Introduction

The petitioners in Yasmeen Zuber Ahmad Peerzade v. Union of  India, filed the Writ Petition under Article 32 of the Constitution of India before the Supreme Court, by way of a Public Interest Litigation, on March 26, 2019, seeking declaration that the practices of prohibition of entry of Muslim Women in Mosques in India is illegal and unconstitutional for being violative of the fundamental rights to equality, life and liberty and freedom of religion proclaimed under Articles 14, 15, 21, 25 and 29 of the Constitution and also to pass such further orders to provide a life of dignity to Muslim women. This case is tagged with Sabarimala temple-entry-matter and other cases in which rights of women are involved.

Sabarimala Decision

The Constitution Bench of the Supreme Court of India, on September 28, 2018, headed by the Chief Justice, held in 4:1 majority (Indian Young Lawyers Association Vs. Union of India: 2019-1 SCC 1), that the custom that prohibited women from entering the Sabarimala temple violated the rights to equality enshrined under Article 14, and freedom of religion guaranteed under Article 25 of the Constitution. It was also pointed out that the Preamble to the Constitution of India proclaimed the ‘liberty of thought, expression, belief, faith, and worship‘.

Prohibition of Entry of Muslim Women: Points Placed in Challenge

1. The prohibition is void and unconstitutional as such practices are repugnant to the basic dignity of a woman as an individual.
2. The arbitrary prohibition imposed on women is violate of Article 14 of the Constitution of India – to be treated equally – and Article 15 of the Constitution which clearly prohibits discrimination by the government on the basis of sex.
3. The prohibition imposed is violative of fundamental rights under Articles 25 and 29 also of the Constitution of India.
4. Preventing the females from entering mosque is violative of Article 44 of the Constitution of India which directs the State to endeavour to secure uniform civil code.
5. The exclusion of women is, nonetheless, not supported by reasons of  “public order”, “health”, “morality” (in Article 25), and, in any case, Article 25(1) will not take precedence over other articles.
6. A woman’s entry to a masjid or eidgah (a place where Muslims congregate for Eid-ul-Fitr and Eid-ul-Azha celebrations) does not create fitna (distress).
7. In the Hajj pilgrimage and Umrah (a lesser Hajj) thousands of Muslim women gather and perform Hajj rituals such as tawaf (walking around the Ka’ba) and sa’I (running between the hills of Safa and Marwa) and ramye zamrat (stoning of the devil ceremony) along with their male counterparts.
8. Religious bodies ask for and receive taxpayers’ money from the government are also subject to the conditions imposed by our Constitution.
9. The historical sources also show that Prophet Muhammad had himself encouraged women to actively participate in mosque congregations and prayer.
10. The most sacred mosque in the world for Muslims, Masjid-al-Haram in Mecca, embraces both men and women and there is complete unanimity in the Muslim community on the Masjid-al-Haram in Mecca – to all Muslims in the world.
11. The Apex Court, in Khursheed Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8 SCC 439, has taken the view that practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of the religion, since a practice does not acquire the sanction of religion merely because it is permitted.
12. The petitioners also argued that there is nothing in the Quran and the Hadith that ‘requires gender segregation’and that the Legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular.

Stance of the contesting respondents

The contesting  respondents have not filed their response in Court. Their stance, as appears from the counter affidavit filed by the All India Muslim Personal Law Board, would be, mainly, the following:

1. The issues do not pertain to any statute.
2. The alleged  rights cannot be enforced against non-state entities like Mosques.
3. Friday Namaz in congregation is not obligatory for women, though it is so, on Muslim men. As per doctrines of Islam, a woman is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home.
4. The matters involved are religious practices based upon beliefs of the religion; and not matters ‘merely concern’ the management of a religious place.
5. The matters involved are matters concern of Masjids, purely private bodies regulated by Muttawalis.
6. They are not the activities ‘only concern’ regulating the activities connected with religious practice, also.
7. It is not appropriate for the Court to enter into or interpret the religious principles/beliefs and tenets, invoking Articles 14, 15, 21, 25 and 29 of Constitution of India.
8. It is not appropriate for the Court to attempt to answer issues that are matters of faith alone, when there is no ‘threat to life and liberty’. 
9. It is not appropriate for the Court to interfere in religious beliefs and the practice of the essential features of any religion protected underArticle 26.
10. In the absence of any state action, it is not appropriate for the Court to judicially determine or interfere in, or to seek resolution of, various aspects on ‘faith and belief’, and essential religious practices of faith, through judicial process.  It should be left to be resolved through the processes of social transformation within the religious denomination itself.
11. During the pendency of the present petition, a five Judge Bench judgment in Kantaru Rajeevaru Vs. Indian Young Lawyers Association [Sabarimala-Case-Review from 2019-1 SCC 1]  has referred matters involving Articles 14, 25 and 26 to larger bench. The matters involved in that case are much relevant in this case also.

Present Status of the Case

This case, on prohibition of Muslim women to enter Mosque, is tagged on with Sabarimala Review-Reference matter [Kantaru Rajeevaru Vs. Indian Young Lawyers Association : Review from 2019-1 SCC 1] and pending consideration before a 9 Judge Bench.

Conclusion

The (i) right of entry of women in Sabarimala, (ii) right of entry of Muslim women in durgahs/mosques, (iii) right of entry of Parsi women, married to non-Parsis, into the holy fire place of Agyari and  (v) the challenge to the practice of female genital mutilation in Dawoodi Bohra Community are placed before the nine-judge-bench of the Supreme Court.

The result of the combined inquisitive analysis of all the aforesaid cases and the issues involved therein, in the constitutional ethos, by the nine-judge-bench, on every possibility, will not be against the so called ‘progressive view’ in favour of women. If the effect of answers of each segregated case and each separated issue is anatomically explored and blended together, the outcome may be diametrically opposite. The nine-judge-bench will analyse the matter, both ways; and, though it may appear that striking a balance between the divergent intransigence is impossible, the end-result will definitely be one which will be hailed ‘legitimate’, in future. It is the history of the Supreme Court of India, in similar matters.