Delhi: The Supreme Court (SC) issued a notice and sought response from the Centre, National Commission for Women, Central Waqf Council and All India Muslim Personal Law Board on a writ petition filed by a Pune-based Muslim couple, under Article 32 of the Constitution, seeking permission for Muslim women to enter the main prayer hall in the mosques stating that such a prohibition is unconstitutional and violates Articles 14, 15, 21 and 25.
The petitioners- Yasmeen Zuber Ahmad Peerzade and her husband Zuber Ahmad Nazir Ahmad Peerzade – in their petition said, “there is nothing in the Quran and the Hadith that requires gender segregation.” It further stated, “the act of prohibition of females from entering a Mosque is void and unconstitutional as such practices are not only repugnant to the basic dignity of a woman as an individual but also violative of the fundamental rights guaranteed under Articles 14, 15, 21 and 25 of the Constitution.”
The petitioners have claimed that they had written letters to the authorities of the Mohammadiya Jama Masjid, Bopodi, Pune seeking permission for women to enter, but the authorities refrained from giving permission citing no precedent. Aggrieved by this, they decided to approach the highest judicial authority. They mentioned in the SC that the State has failed to ensure the basic dignity and equality of women in general and Muslim women in particular especially in matters pertaining to women’s entry in to the mosque, wearing a burqa, etc.
They further said that currently women in the Sunni faction are barred from entering the mosque while the Jamaat-e-Islami and Mujahid factions do not have such barriers. However, there are separate entries and enclosures for worship for both men and women. This violates the fundamental right to equality. To this, a bench of Justices S A Bobde and S Abdul Nazeer enquired whether Article 14 can be applied against the individuals and can a mosque, temple or a church be treated as a state since Article 14 refers to the state action. The petitioner’s lawyer, Ashutosh Dubey, said that the mosques were receiving grants from the State and can thus be treated as a State actor. However, the bench wasn’t satisfied with this reply.
It further asked the advocate about other places where women are allowed entry in the mosques. To this, Dubey said, “..it is submitted that there is no such gender discrimination to offer worship in Mecca, the holy city. The faithful, both men and women, together circle the Kaaba.” It further added that women are allowed in mosques in Saudi Arabia, UAE, Egypt, US, UK and Singapore. The judges then enquired about similar cases in the Bombay and Kerala High Court to which the advocate replied that the women entry was permitted in to the Haji Ali Dargah in Mumbai while the Kerala High court had dismissed the petition on the grounds that the petitioners were Hindus and they will take up the case when the affected people (Muslims) approach them.
The petitioner’s counsel then cited the SC judgement in the Sabarimala case where four of the five judges had ruled that “religion cannot be used as cover to deny rights of worship to women” thereby allowing women of all ages to enter the sanctum sanctorum of the Sabarimala temple. He then prayed for relief on behalf of the petitioners.
Justice Bobde issued the notice saying, “We are only hearing you, and may be will hear you in the future, because of Sabarimala Judgment. But you are not giving any satisfactory answer. We’ll see..”
There are diverging opinions among experts in Islamic theology concerning gender segregation. Ahmad Kutty, an Islamic theologian in Canada has said that gender segregation isn’t required in Islam and there was no discrimination among the two sexes during the time of Prophet Muhammad. Contrarily, Abdul-Rahman al-Barrak, another Islamic theologian in Saudi Arabia has issued a death warrant through a fatwa against those who allow the mixing of the sexes.
It is to be seen whether the dissenting opinion of Justice Indu Malhotra in the Sabarimala case where she said, “..notions of rationality cannot be invoked in matters of religion by courts,” will influence the decision of the present case. Interestingly, the petition even mentioned the Uniform Civil Code, which is also a part of the BJP manifesto for the 2019 general elections. It said, “Despite the observations of this Hon’ble Court for the past few decades, Uniform Civil Code (UCC) remains an elusive Constitutional goal that the Courts have fairly refrained from enforcing through directions and the Legislature has dispassionately ignored except by way of paying some lip service.”
Time and again, citizens have knocked at the door of the judiciary seeking their intervention in unjust and unequal religious rules. Constitutional principles and the fundamental rights guaranteed by it have formed the basis for various pleas regarding religious matters, including those made by the Muslim community. Apart from the Haji Ali Dargah judgement, the Shayara Bano verdict (where Justice Abdul Nazeer was on this bench) is a case in point for Muslim women’s quest for equality.
With demands for gender-just laws increasing and the unsettling debate over the UCC, the decision of the Supreme Court will be awaited as it will shape the further course of action in the fight towards a just and equal society.