‘No ban on women praying in mosques’: What is the plea in SC, what exactly has AIMPLB said

Shaikh filed her petition in February 2020 through advocates Sandeep Tiwari and Rameshwar Goyal. It sought an order or direction declaring the practice of stopping Muslim women from entering mosques as “illegal” and “unconstitutional” on grounds that it violated Articles 14, 15, 21, 25 and 29 of the Constitution (dealing with equality, discrimination and the right to freely practise religion).

There are no records stating that the Quran or Prophet Muhammad opposed women from entering mosques, the plea pointed out. “There is no such gender discrimination to offer worship in Mecca, the holy city in Western Saudi Arabia and the birthplace of the Prophet Muhammad, where both men and women together circle the Kaaba,” the plea submitted.

The plea also prayed for a direction permitting women to pray in the “musalla” (prayer area) without being separated by a barrier, including in the front and mixed-gender congregational lines.

For this, reliance was placed on the Supreme Court’s 2018 ruling in Indian Young Lawyers’ Association v State of Kerala, also known as the Sabarimala case, where the court allowed entry of all Hindu pilgrims into the temple and said that disallowing entry of women between 10-50 years of age violated Article 25 of the Constitution.

In May 2020, a bench of Justices A S Bopanna and Hrishikesh Roy of the top court issued notices to 10 parties, including the Union government, Central Waqf Council, AIMPLB, Jamiat Ulama-i-Hind, and Darul Uloom Deoband.

What did the AIMPLB say?

In the affidavit filed by the AIMPLB through advocate MR Shamshad, it was submitted that Islam does allow women to enter and pray inside mosques, provided there is no intermixing of men and women and separate congregational spaces are provided for both.

The Board also labelled as “misleading” the petitioner’s argument that women are allowed to perform Hajj or Umrah rituals with their male counterparts in Mecca and Medina and consequently, should be allowed in mosques in general.

With respect to this, the affidavit said that “the holy sites and places of worship at Mecca and Medina (Saudi Arabia) i.e. Masjid Al-Haram (located in Mecca) is differently placed in Islam and has certain exceptions while offering prayers called tawaf. Naturally, this holy site has a detailed and defined historical background that cannot be carried out in an alternative site/place of worship.”

Placing reliance on the various “Hadiths” or the sayings and practices of Prophet Muhammad, the affidavit said that the etiquettes of prayer, particularly no free inter-mixing of both sexes, are adhered to “willingly, strictly, and sincerely” by all worshippers. In fact, in Mecca, there are scores of mosques besides the Masjid Al-Haram where, since the time of the Prophet, no intermingling of the sexes has been allowed.

Further, the plea said that separate spaces or chambers for ‘wudhu’ (ablution) for men and women have also been demarcated at the Masjid An-Nabawi in Medina.

The Board said the petition had contradictions concerning Islamic tradition and principles about the free inter-mixing of sexes, by adding that while the plea states that the Quran and the Hadith do not segregate on the basis of gender, it also admits the presence of diverging opinions among experts in Islamic theology on this.

“Islam accords equal importance to the participation of women in the Eid prayers. The only condition Islam lays down is a separate arrangement for women. In India, some mosques and organisations organize Eid prayers for women with adequate measures such as separate enclosure, separate waju (ablution) system, and separate entry and exit points,” the affidavit read.

It was further submitted that Islam has not made it obligatory for Muslim women to join daily prayers five times a day in the congregation, nor is it obligatory for women to offer weekly Friday Namaz in a congregation, though it is so for Muslim men. The Muslim woman is differently placed because, as per the doctrines of Islam, she is entitled to the same religious reward or “sawab” for praying either in a Masjid or at home.

Moreover, the Board contended that the plea raises questions “not in the background of state action”. “The practices of religion in the places of worship (which in the present matter are Mosques) are purely private bodies regulated by Muttawalis of the Mosques,” the Board highlighted, while adding that it could only issue an advisory opinion based on Islamic principles.

The Board went so far as to say that even the Court, for that matter, could not enter into the arena of detailed arrangements of a religious place, which is a “completely privately managed entity for religious practices of believers in religion.” The affidavit deemed the court’s interference in the matter as “not appropriate”, since the questions in the present plea relate to purely religious beliefs and principles. The Court should not examine or correct religious practices by invoking Articles 14, 15, 21, 25 and 29 of the Constitution, the affidavit said.

On the sanctity of fatwas disallowing the entry of women, which the plea sought to quash, the Board said it is merely an opinion based on religious texts and doctrines, and has no statutory force. However, it was quick to add that any Muslim can by choice, seek out such a fatwa, based upon interpretations of religious texts, and the same cannot be restrained by judicial orders as it “shall directly hit the right and freedom of religious belief of an individual.”

Referring to the case of Yasmeen Zuber Ahmad Peerzade v Union of India, which is currently pending before the Supreme Court, the Board highlighted that it pertained to the same subject matter i.e. entry of Muslim women in Mosques/Masjids.

What has the Court’s view been so far?

In 2019, a Pune-based couple sought directions from the Apex Court to allow women entry into mosques in the matter of Yasmeen Zuber Ahmad Peerzade v. Union of India.

The petition by Yasmeen Zuber Ahmad Peerzade and her husband Zuber Ahmad Nazir Ahmad Peerzade contended that “there is nothing in the Quran and the Hadith that requires gender segregation” and added that “the act of prohibition of females from entering 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”.

In response to this plea, the AIMPLB said that the entry of women into mosques to offer prayers is permitted. It also said any fatwa barring the entry of women “may be ignored”.

The matter was sent for consideration to a nine-judge Constitution bench headed by Chief Justice S A Bobde, who in February 2020, clubbed it with another similar plea titled Kantaru Rajeevaru v. Indian Young Lawyers Association, where the court dealt with legal and constitutional issues relating to discrimination against women in various religions and at religious places, including Kerala’s Sabarimala Temple.

In Kantaru Rajeevaru v. Indian Young Lawyers Association, the Court framed seven questions of law and referred them to a larger bench in a review petition. The questions dealt with the scope and ambit of the right to freedom of religion under Article 25 of the Constitution, and the interplay between the rights of persons under Article 25 and the rights of religious denominations under Article 26. The scope and extent of the word ‘morality’ under Articles 25 and 26, and whether it is meant to include constitutional morality, was also to be examined, along with the scope of judicial review for religious practices.

The matter is still pending before the Apex Court, as is a review petition against the 2018 Sabarimala judgment.