“All religion, my friend, is simply evolved out of fraud, fear, greed, imagination, and poetry.” -Edgar Allen Poe
As it's clearly seen in today’s era, the conflict between religion and law has always been a very controversial issue throughout history, primarily because these aspects are in a way created by man himself and are open to subjectivity. And when it comes to gender discrimination, it is also a part of factitiousness which has totally destroyed the unity and equality of the society.
The freedom to preach and practise any religion as per the choice of an individual has been very rightly bestowed and guaranteed as a fundamental right by the Constitution of India. Also, the constitution guarantees every individual the equality before law and bars all sorts of discrimination on the basis of caste, creed, sex, race and religion.
This essay is an attempt to explain how men and women are identical in various phases of life and will also provide logical reasoning behind why women should have ingress to places of worship and the concept “justice for all” should be firmly established. It also draws lessons from past jurisprudential holdings on related issues.
GENDER INEQUALITY IN INDIA
The issue of gender inequality in India is clearly shown by the index released by UNDP (United Nations Development Programme) in 2018 saying India is on 129th no out of 188 nations. This is a patriarchal society where men are considered superior to women. Doing every possible thing a man can, women are still not given equal respect. In fact, even in the 20th century women were not allowed to enter some places of worship which we’ll be discussing further in this essay.
BAN ON ENTRY OF WOMEN IN PLACES OF WORSHIP
Article 14: It provides “equality before the law” and “equal protection of laws”. It means that everyone must be treated equal under equal circumstances and it advocates against any discriminatory practices be it banning of women to enter in worship places.
Article 15: It clearly states that no citizen of India shall be discriminated on the basis of religion, race, caste, sex or place of birth.
Article 21: It provides that a person shall not be deprived of his personal liberty except according to the procedure established by law.
Article 25(1): It grants freedom of conscience and right to practice any religion. And it includes the freedom of access to any worship place.
All of them are protected under the shelter of Article 26(b) which gives complete autonomy to religious organizations, deciding what rites are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.
Although India is a signatory to The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), gender discrimination in the place of worship still exists. The purpose of international bill for rights of women is to eradicate this discrimination and impose a duty on state to “accord women equality with men before the law”.
In the subsequent topic, the explanation of how the ban on the entry of women in mosques is arbitrary, discriminatory and illegal in nature is discussed.
Cases From Where The Issues Regarding Women Entry Into Religious Places Arose and came into limelight :
• SHANI SHINGNAPUR TEMPLE (MAHARASHTRA)
Women protested outside the Shani Shingnapur temple in Maharashtra claiming their rights to offer prayers at the inner sanctum of the temple. They were trying to break the 400-year-old tradition of the temple banning women from entering its inner sanctum. But the authorities have refused to allow this, claiming that this restriction is based on Hindu tradition and culture. Finally, women are now allowed to enter there after the Bombay High Court judgement given on 30 March, 2016 as it was against women’s fundamental rights to public and religious places.
• TRIMBAKESHWAR SHIVA TEMPLE (MAHARASHTRA)
Trimbakeshwar temple in Nasik that decided to allow men and women to pray inside the temple. However, the temple trustees said that women would only be allowed for an hour everyday if they wore ‘cotton or silk clothes while offering prayers in the core area.’ This imposition of conditions is viewed as a shot of the patriarchal system which was keen to retain male dominance in the society and discriminate against women from public space and places of worship. These conditions superficially allowed women entry but are actually designed to prevent it.
• RANAKPUR TEMPLE (RAJASTHAN)
One of the five major Jain Public Interest Litigationgrimage sites, this 15th century structure in Rajasthan prohibits the entry of menstruating women in the temple vicinity. Among many things women essentially need to do, while entering the temple or inside it, is to ensure that their legs are covered below their knees. This temple made entirely of carved white marble is a landmark and several worldly tourists visit it to admire its beauty and grandeur. However, a large board outside clearly defines when and how a woman can visit here. It also has rules about wearing western clothes and accessories.
Many more cases like KARTIKEYA TEMPLE (RAJASTHAN), PATBAUSI SATRA (ASSAM), HAJI ALI DARGAH (MAHARASHTRA) and foremost case of SABARIMALA TEMPLE(KERALA).
THE CASE OF WOMEN ENTRY BANNED IN SOME MOSQUES.
What actually has caused a housewife named Farah Sheikh to file a Public Interest Litigation is the tradition of denial entry of women in mosques. This all started because of an incident that happened to the petitioner which impelled her to file a plea.
The background scenario of this case says that the couple went for shopping during ramzaan and it was 5.30 pm, time for their namaaz but suddenly it started raining and the husband of the petitioner was allowed to enter the mosque for prayer but she wasn’t and she had to wait outside in that heavy rain so she decided to fight against this unacceptable fabricated custom which must not exist.
As a result of this situation, last to last year in May, they sent notices to many local authorities of the mosque, minorities and women association to terminate the existing customary law and to allow women to enter the mosque but were left ignored even after receiving the letter and got deaf ears.
So, in February they decided to move to the Supreme Court and filed a petition seeking an order in the nature of writ of mandamus (we command) mentioning all practices done in the action of prohibiting women to enter mosques as unconstitutional, illegal, violating fundamental rights and against the law of equality.
According to her, there are mosques in different places like Kerala, Saudi Arabia etc where women are allowed to enter the mosque and also mention that Quran and even Mecca doesn't offer or allow such gender biases. In fact the Prophet Mohammad never denied the entry of women in mosques. Along with this they clearly gave into notice that at present women are allowed to offer prayers at mosques under Jamaat-e-Islami while they are barred from mosques under predominant Sunni faction and it is submitted that even in the mosques where women are allowed to go and offer prayer there have separate and segregated entrances and closures for women and men.
Firstly Supreme Court mentioned that they weren't prima facie convinced by them but they're only hearing them because of the verdict given in Sabrimala temple case as the reference of Sabarimala case was cited in the petition itself. Petitioner stated that last year on 28 September, 5 judge constitution bench headed by the then justice Dipak Misra held the allowance of the entry of women in Sabarimala temple saying that religion should not and cannot be used as a reason of denial of women entering a holy place and offer worship, also it is against many values and laws. So why isn’t a woman allowed to offer namaz there! This reflects that this customary practice is based on non-religious factors and reveals the prejudice surrounding our society from centuries ago.
Moreover, this customary tradition is totally the violation of fundamental rights guaranteed under Article 14, Article 15, Article 21 and Article 25(1) of the Constitution.
One question made an appearance was whether a mosque comes under state and can an individual claim his/her right to equality against other individual or non-state actors?
Firstly it's a fact to be acknowledged that only Hindu temples are under the control of the state because they are funded by the government but on the other hand, mosques, church and gurudwara are also funded but not under the control of state and are given their own autonomy.
Connectedly petitioner stated that the mosque is enjoying the benefits granted by the government so it's under the control of the state and can be directed to allow the entry of women.
Later Supreme Court decided to send notice to few organizations including central government, the Waqf Board and the All India Muslim Personal Law Board on this Public Interest Litigation seeking to validate the right of Muslim women to enter the mosques, to offer namaaz.
Later they're expected to file their say before the next hearing scheduled on July 6th.
It was a possibility to have a judgment similar to the case of Sabrimala temple because the sole reason to file a case was same for both cases.
The judges, in the pending case, were ought to give the decision to higher authorities of state to look after that women aren't barred from entering the religious places and offering prayers and that too without any segregated columns for genders. A right decision taken, which we must abide by for the betterment of the society legally, socially and mentally.
Then it was stated that The practical ban on women to enter mosque in India violates her right to establish prayer in Mosque, which is permitted and encouraged by the Quran and Hadith.
And tha this passive discrimination is against the tenets of Islam and violates gender justice which is a Constitutional guarantee.
In 2020, All India Muslim Personal Law Board (AIMPLB) filed an affidavit in Supreme Court stating that entry of women in mosque is allowed as per Islam. However, it is not mandatory for women to join group prayers or congregational prayers.
While giving a reply to the petition the All India Muslim Personal Law Boardstated that various religious texts, doctrine and religious belief of the followers of Islam state that entry of women in the mosque for offering prayer/Namaz, inside the mosque, is permitted. Thus, a Muslim woman is free to enter masjid for prayers. It is her option to exercise her right to avail such facilities as available for prayers in masjid.
The affidavit by All India Muslim Personal Law Board was filed in the answer to a petition filed early last to last year by this Pune-based Muslim couple seeking to uphold the right of Muslim women to enter mosques freely and offer namaz. The Supreme court in April issued notice to All India Muslim Personal Law Board and had asked them to reply on the petition.
Manu’s saying is - “Yatra naryastu pujyante ramante tatra Devta, yatraitastu na pujyante sarvaastatrafalaah kriyaah” meaning, “whenever women are given their due respect, even the deities like to reside there and where they aren't respected, all action remains unfruitful.” People worship the goddess who symbolizes the power of a woman but they don't respect the freedom and power of a common woman. This clearly shows the hypocrisy of people. The concepts like women's impurity, weakness, are made by men only to serve the society with a patriarchal form of living. Although in today women are being uplifted as compared to earlier times, still there's a need for a drastic change to achieve equal status.
Finally, in a nutshell, it is to bring into the notice of all readers that the woman who filed a Public Interest Litigation against the customary practice of not allowing women to enter mosques and offer namaz should be banned and become a punishable and chargeable offence. This gives the court a chance to set a strong precedent in terms of adoption for a better approach towards horizontal application of fundamental rights and incorporation of constitutional morality into the Article 25 and Article 26 jurisprudence.
5. Live Law
6. SCC Online