PIL in SC on entry of women in mosques: Judiciary must balance freedom of religion and right to equality

Radhika Agarwal
A public interest litigation (PIL) has been filed in the Supreme Court by a Muslim couple from Pune, praying that women be allowed to enter mosques.

Recently, a public interest litigation (PIL) has been filed in the Supreme Court by a Muslim couple from Pune, praying that women be allowed to enter mosques and offer namaz.

The petitioners reportedly contended that such a practice was violative of the basic dignity of a woman as well as their basic rights. They also stated that there was no evidence to show that the Quran or Prophet Muhammad endorsed the idea of women being barred from praying in mosques. The Bench, comprising Justice S Abdul Nazeer and Justice Sharad Arvind Bobde, has reportedly admitted the plea, stating that it is hearing the petition only due to the Sabarimala judgment.

The issue of gender-based discrimination in religious places was ruled upon in September last year by the Supreme Court of India in the Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors. case; the issue was related to the constitutionality of the ban imposed by the Travancore Devaswom Board (which manages the shrine at the Sabarimala temple) on the entry of women between 10 and 50 years of age in the shrine at the Sabarimala temple in Kerala.

The ban had already been challenged once in 1991 before the Kerala High Court in S. Mahendran v. The Secretary, Travancore. The high court had then ruled that the ban was constitutional. The five-judge bench of the Supreme Court, however, in the Sabarimala judgment ruled that the ban was violative of the right to equality and the right to worship. The court relied on the 'essential practices doctrine' to state that the practice of not allowing women to enter the Sabarimala temple is not an essential part of Hinduism.

The ban against women of a certain age was viewed by one of the judges as a form of untouchability which was already prohibited under Article 17 of the Constitution. A dissenting opinion was, however, given by Justice Indu Malhotra, who stated that "issues which are matters of deep religious faith and sentiment must not ordinarily be interfered with by courts." As of February 2019, the Supreme Court has reserved its order on the review petition against the Sabarimala judgment.

The Sabarimala temple issue is not one of its kind. A similar ban was also in place against the entry of women in the Shani Shinganapur temple in Maharashtra. The ban was challenged before the Bombay High Court as being unconstitutional, arbitrary and in violation of the fundamental right to equality of women. The court had ruled that women cannot be barred from entering the temple, and that they should be given an equal right to worship as men. It is important to note that courts in India have recognised that the right to freedom of religion which is guaranteed under the Constitution also includes the right to enter places of worship.

It is pertinent to note that cases involving challenges to gender-based discrimination in places of religious worship are not confined only to Hinduism or Islam. Recently, a petition was filed before the Delhi High Court against Delhi Parsi Anjuman (the trust of the Fire Temple in Delhi) against their practice of not allowing the entry of menstruating women as well as people belonging to religions other than Parsi Zoroastrians. The trust, however, refuted the allegation of gender discrimination and stated that even men who were bleeding due to any bodily injury were not allowed to enter the temple.

It further contended that since the temple was privately funded, with the beneficiaries being only Parsi Zoroastrians, people from other religions could not demand entry into the temple. The trust also stated that Zoroastrian women could not be ordained (as prayed for in the petition) because they are unable to fulfill the residency requirement of the temple where they are not to bleed or emit any discharge.

While the Fire temple dispute is similar to the Sabarimala temple dispute, there are some important distinctions. Firstly, unlike the Sabarimala temple ban which prohibited the entry of women of a certain age group at all times, the Fire temple ban prohibits the entry of women only for a certain period of time. Further, it does not set an arbitrary age criterion for disallowing the entry of women inside the temple.

The ban is also not exclusive to women; it is equally applicable to men who may bleed as a result of injury. While the matter is yet to be decided, it would be interesting to see how the Indian judiciary will resolve issues of discrimination in this case, and whether it would take an essential practices test approach similar to the one in the Sabarimala temple dispute.

Interestingly, there are similar movements for the right of entry of women in mosques in other parts of the world, including developed countries like the United States. The Islamic Bill of Rights for Women in the Mosque was penned down by Asra Nomani (American writer and former reporter for The Wall Street Journal). The Bill comprises 10 principles aimed at equality for women in mosques which include the right of women to enter mosques through the main entrance and pray in the musalla without any barrier. Nomani faced severe criticism from her community in Morgantown, West Virginia when she started the Muslim Women's Freedom Tour where she encouraged women to offer prayers in male-only halls in mosques.

Issues involving gender-based discrimination in religious places become highly controversial both in India and elsewhere due to clashes between right against discrimination (on the basis of caste, gender etcetera) and right to religious freedom (which involves the right of religious institutions to govern themselves). The approach of the judiciary to decide on the constitutionality of seemingly discriminatory practices has also been criticised as being judicial overreach in religious matters. The current petitions are important from the purview of deciding whether courts can indeed intervene in matters involving discrimination in religious practices or such matters are best left to the communities themselves to decide.

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