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Above: Muslim women offering prayers at the Jama Masjid in Srinagar in the holy month of Ramzan/Photo: UNI

In view of the Sabarimala verdict which allowed the entry of women of all ages into the temple, the Supreme Court has taken up a similar plea on the right of Muslim women to offer prayers in mosques

By Venkatasubramanian

One of the abiding contributions of the Supreme Court’s judgment declaring the right of women to worship at Sabarimala was that it inspired women of other faiths to question similar restrictions placed on them. When the Supreme Court bench of Justices SA Bobde and Abdul Nazeer heard a petition seeking the right of Muslim women to worship in mosques on April 16, it had no option but to agree to examine the issues raised in it in view of the Sabarimala judgment.

The petition was filed by a Muslim couple from Pune, Yasmeen Zuber Ahmad Peerzade and her husband, Zuber Ahmad Nazir Ahmad Peerzade, who made the Ministries of Women and Child Development, Law and Justice and Minority Affairs, National Commission for Women, Maharashtra State Board of Waqfs, Central Waqf Council and All India Muslim Personal Law Board as respondents. The bench issued notices to all the respondents.

The petitioners argued that the prohibition of women’s entry into mosques was a violation of constitutional and fundamental rights guaranteed under the Constitution as there cannot be any discrimination based on caste, sex and religion. Relying on the Sabarimala judgment, they argued that religion cannot be used as a cover to deny rights of worship to women and it was also against human dignity. Prohibition of women was due to non-religious reasons and it was a grim shadow of discrimination going on for centuries, they said, quoting the Court judgment in the Sabarimala case.

The petitioners submitted that the Imam of Mohmdiya Jama Masjid, Bopodi, Pune, had responded to their request for permission for women to offer prayers in mosques, stating that no such practice is permitted in Pune and other areas. The Imam, however, told them that he had written to “higher authorities” seeking suitable directions. Failing to get a satisfactory reply, the petitioners approached the Supreme Court.

The petitioners contended that there was nothing in the Quran and the Hadith that requires gender segregation. There are divergent opinions among experts of Islamic theology concerning gender segregation, they said. An Islamic theologian in Canada, Ahmad Kutty, reportedly, said that segregation of the sexes was not a requirement in Islam, as men and women interacted in Muhammad’s time without any partitions. However, an Islamic theologian in Saudi Arabia, Abdul-Rahman al-Barrak, issued a death warrant in the form of a fatwa against those who allowed mixing of the sexes. The petitioners claimed that the Prophet Muhammad specifically admonished men not to keep their wives from going to the mosques.

The petition wanted the Supreme Court to examine whether such prohibition was violative of Article 44 of the Constitution which encourages the State to secure a uniform civil code for all citizens by eliminating discrepancies between various personal laws. It also wanted the Court to examine whether the right to exclude women can be claimed under Article 25(1) of the Constitution, which guarantees to all persons equal entitlement to freedom of conscience and the right to freely profess, practise and propagate religion, subject to public order, morality and health, and to other provisions of Part III of the Constitution.

The petition said that in the Haj pilgrimage and Umrah, thousands of Muslim women gathered and performed rituals along with Muslim men. In the Mecca Masjid, considered the most sacred of all mosques, there was no such prohibition on women regarding worshipping, it said. Relying on the Supreme Court’s judgment in Khursheed Ahmad Khan v State of Uttar Pradesh and others (2015), the petition stated that practices permitted by a religion do not become a religious practice or a positive tenet as the practice does not acquire the sanction of religion merely because it was permitted.

The petition claimed that at present, women were allowed to offer prayers at mosques under the Jamaat-e-Islami and Mujahid denominations, while they were barred from mosques under the predominant Sunni faction. It contended that although Article 15, which prohibits discrimination by the government on the basis of sex, cannot be strictly invoked against mosques, religious bodies that ask for and receive tax payers’ money from the government must be subject to the anti-discrimination provision of the Constitution.

The petition said that women were allowed in mosques in Saudi Arabia, the UAE, Egypt, the US, the UK and Singapore. Women were allowed in the sacred mosques of Masjid-e-Haram in Makkah and Masjid-e-Nabawi in Madi­nah, the petition stated.

The Supreme Court bench quizzed Ashutosh Dubey, the petitioners’ advocate, on how mosques which are not under the control of the State could be subject to the fundamental rights guaranteed by the State. It wanted to know how non-State actors could come under the constitutional compulsion to not discriminate between sexes. Dubey could not satisfy the bench beyond saying that mosques receiving aid from the State were bound to comply with the fundamental rights guarantees applicable to the State.

There are several articles in Part III of the Constitution (dealing with fundamental rights) which directly apply to non-State actors as well. Section 12(1)(c) of the Right of Children to Free and Compulsory Education Act 2009 was challenged in the Supreme Court because it mandated private unaided schools across the country to admit 25 percent of their Class I strength with children from weaker and disadvantaged sections and provide them with free education. The Supreme Court, in this case, not only affirmed the horizontal application of social rights and not merely civil and political rights, but recognised that private schools are also required to comply with the obligation to provide the right to education.

The Supreme Court has taken this argument ahead of other jurisdictions, which have anti-discrimination laws covering the private sector, to hold that they are not merely required to perform negative duties of restraint from infringing on fundamental rights, but also to positively provide socio-economic rights guarantees like the right to education.

There­fore, the apex court, according to observers, cannot go back and deny horizontal application of a civil right like the right of women to worship in a mosque because the mosque is not a State.

In 2017, the centre submitted to the top court that a non-State actor like WhatsApp cannot lay down contractual conditions that violate a citizen’s right to life and liberty. It made this submission when the Court was hearing a challenge to WhatsApp’s privacy policy, which, the petitioners alleged, would allow it to share user data with its parent, Facebook. Data, the centre claimed, is an extension of a citizen’s personality and his digital footprints. Therefore, it is part of Article 21 which guarantees non-deprivation of right to life and personal liberty of every person except according to procedure established by law, the centre had then submitted to the Court.

More significantly, the present bench’s concerns over the applicability of fundamental rights against non-State actors have already been answered by the nine-judge bench in the Justice Puttaswamy v Union of India case in 2017 declaring right to privacy as a fundamental right. Justice Sanjay Kishan Kaul, who was part of that bench, in his separate judgment, held: “The right to privacy is claimed qua the State and non-State actors. Recognition and enforcement of claims qua non-State actors may require legislative intervention by the State.” He concludes in paragraph 77 by saying: “The right of privacy is a fundamental right. It is a right which protects the inner sphere of the individual from interference from both State and non-State actors and allows the individuals to make autonomous life choices.”

According to legal scholar Gautam Bhatia, constitutional courts have developed various ways in which to apply rights “horizontally”, that is, to apply rights in transactions where private actors are involved. A classic example is the Supreme Court’s intervention in Vishaka v State of Rajasthan, when it laid down guidelines to prevent sexual harassment in both public and private workplaces, to protect rights under Articles 14, 19 and 21 of the Constitution. The Court intervened on the ground that fundamental rights guarantees cast an obligation on the State to regulate private actors in a manner that ensures that these rights are not violated.

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