The Supreme Court on Tuesday admitted for consideration a plea by a couple to lift the ban on Muslim women's entry into mosques across the country.
“The only reason we may hear you is because of our judgment in Sabarimala temple ,” a Bench of Justices S.A. Bobde and S. Abdul Nazeer remarked orally. The court issued notice to the government and various bodies, including the National Commission for Women.
In September last, a Constitution Bench of the court lifted the age-old ban on women of menstrual age, between 10 and 50 years, entering the famed Sabarimala temple in Kerala. The decision created an uproar. Multiple review petitions were filed, heard and reserved for judgment. The court had held that the Sabarimala ban amounted to discrimination and even the practice of untouchability. Women had equal right to worship in a “public” temple.
The court had also played a key role in facilitating the entry of women into the sanctum of the Haji Ali dargah in Mumbai.
Justice Bobde asked whether a petition seeking right to equality can be filed against individuals and non-State actors like people who pray in and manage mosques. The fundamental right to equality under Article 14 of the Constitution was available only against the State, he observed.
“Is a mosque a ‘State’? Is a church a ‘State’? Is a temple a ‘State’? We are not talking about the cement and mortar that make mosques but the people in them. Can the fundamental right of equality be imposed on another human being,” he asked.
When the lawyer in the case raised objections, the Bench asked him to read out Article 14. “You must be referring to a different Article 14 that we do not know about... The Article 14 starts with the words ‘State shall not deny...’ The relief is against the State only,” Justice Bobde addressed the lawyer.
At one point, the lawyer said women were not allowed to enter mosques to pray despite several letters to imams. The petitioner had even sought police help to enter mosque, the lawyer claimed.
“You do not want someone to enter your house. Can that person then get police help to enter your house? If persons in mosques don’t want you [women] to enter, can you agitate right to equality against them? Fundamental right to equality is only available against the State and not individuals,” Justice Bobde retorted.
The Pune-based couple, Yasmeen Zuber Ahmad and Zuber Ahmad, told the court that the ban was illegal, unconstitutional and a violation of their dignity.
“There should not be any gender discrimination and Muslim women should be allowed to pray in all mosques, cutting across denominations. There is no such gender discrimination to offer worship in Mecca, the holy city. The faithful, both men and women, together circle the Kaaba,” their petition said.
Presently, women are allowed to offer prayers at mosques under the Jamaat-e-Islami and Mujahid denominations. Women are barred from mosques under the predominant Sunni faction.
Even in mosques where women are allowed, there are separate entrances and enclosures for worship for men and women.
The petition argued that such a bar on Muslim women was “violative of Article 44 of the Constitution of India, 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”.