Why the recent Supreme Court petition seeking entry of Muslim women into mosques goes beyond gender equality
Delving deeper into the complex interplay between religion, tradition, and the Fundamental Rights as enshrined in Part III of the Constitution.
The Supreme Court, on April 16th, issued a notice to the Central government and the All India Muslim Personal Law Board in response to a petition seeking the entry of Muslim women into mosques.
One of the first questions asked by the court was, “Can a fundamental right to equality be asserted against another human being/individual? Will Article 14 apply to an individual and can you claim equality of treatment from another human being? You don’t want somebody to enter your house; can that person call for police help and enter your house?”
Linked to this question was another, also asked by the Supreme Court, “Is a mosque, temple or church a "State"?”
“State” under the Constitution
Why is the idea of the “state” relevant in this context? Part III of the Constitution, which confers to the people of India their fundamental rights, starts with Articles 12 and 13.
Extracting the relevant parts here:
Article 12: In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India, and the Government and the Legislature of each of the States, and all local or other authorities within the territory of India or under the control of the Government of India.
Article 13 (2):The State [emphasis added] shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.
Based on this, we understand that if the ‘state’ violates our fundamental rights, we can approach the courts for a remedy.
Is a church, mosque, and temple, part of the ‘state’? As seen from the definition given in Article 12, a church, mosque, or temple does not fall within the concepts of “the Government and Parliament of India, and the Government and the Legislature of each of the States.”
They could possibly fall under “all local or other authorities within the territory of India or under the control of the Government of India.”
Multiple cases have been filed to determine what bodies would come under “local or other authorities”.
In Som Prakash v. Union of India, the Supreme Court held that, “the true test [of whether a body falls under 'state' or not] is functional [emphasis added]. Not how the legal person is born but why it is created.”
Now, if a body (like a society or a corporation) has been created by a statute (i.e., by a law made by the legislature), but functions independent of the control of the government in its main activities, it may not fall under the definition of “state”.
However, even if a body is not a statutory one, but its finances and its functioning is controlled by the government, it will be considered a part of the ‘state’.
The major thrust of this reasoning is to prevent the government from bypassing its constitutional obligations (especially when it comes to upholding fundamental rights) by creating companies, corporations, and other non-government entities to perform its duties.
Mosque part of the definition of ‘state’ under Part III of the Constitution
Advocate Ashutosh Dubey, appearing for the petitioners, said that the bodies managing the affairs of mosques take benefits from the State and are, thus, State actors.
Now, if this holds true, a violation of the right to equality under Article 14 – by not allowing women into mosques – can be remedied by approaching the court.
The Supreme Court quite clearly stated that it is hearing the petition on allowing women to enter mosques because of the Sabarimala verdict.
In the Sabarimala judgment, Justice Chandrachud had stated, “Religion cannot be cover to deny women right to worship. To treat women as children of lesser God is to blink at constitutional morality.”
However, the verdict struck down a statutory rule, not a religious custom per se. The Sabarimala verdict adjudged that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is ultra vires the Constitution. Reproducing the rule below:
Rule 3: The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship, or bath in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship.
3) b) Women at such time during which they are not by custom [emphasis added] and usage allowed to enter a place of public worship.
Custom versus reform
The big question is: How far can we go when amending custom to suit modern ideas like gender equality?
Tradition is not a stagnant concept. It is dynamic. It moves with the times. Tradition is actually a reflection of its time. Reform of custom is as much a part of keeping cultures intact as is upholding custom.
Once upon a time, Sati was considered a big part of Hindu tradition. Reformers like Raja Ram Mohan Roy received massive pushback when they tried to abolish it.
In a similar manner, petitions that seek to bring equality to places of worship – like Sabarimala and now mosques – will face a backlash from upholders of tradition. But, they are necessary. Religion and tradition need to keep up with the times if they want to stay relevant.
Do the ends justify the means?
The outlawing of instant triple talaq has been a cause most equality activists have been fighting for. The Supreme Court, in August 2017, declared talaq-e-biddat unconstitutional and not an essential part of Islam.
It is interesting that the BJP government, with its Hindu right ideology, was quick on the uptake. After the judgment, it pushed for the passing of the Triple Talaq bill.
The apex court had already rendered the uttering of ‘talaq talaq talaq’ toothless. You might as well be saying, ‘Abracadabra’.
So what was the point of the bill? To criminalise the uttering of triple talaq. Now, according to this bill, Muslim men who utter triple talaq can go to jail.
Logically speaking, it’s difficult to understand how uttering words – that the court has already ruled carry no meaning – can land you in prison.
To top it all off, these jailed men have to provide maintenance to their wives and children from behind bars. The bill does not look into how this can practically be done.
Right-wing groups have lauded this bill as one that will ‘save’ Muslim women. Muslim women do not need saving by this law. The Supreme Court’s judgment already had that covered.
You get the distinct sense that the bill is meant more to penalise Muslim men than it is to emancipate Muslim women.
Similarly, the comments section on news reports around the petition to allow Muslim women into mosques have a disproportionate number of Hindu men spouting hateful things about Islam. Quite a number insinuate that the Supreme Court is anti-Hindu because of Sabarimala. Very few talk of Muslim women and their struggles to worship equally in a mosque.
As discussed in the first half, the questions the Supreme Court is concerned about are constitutional and legal in nature. The court is more concerned with the interplay between religion, tradition, and the fundamental rights. The judiciary’s job is to balance all these concerns, giving weightage to each as it sees fit for the present context.
The worrying thing is that, once again, a petition that started out with the right intentions – to bring equality to Muslim women – might just end up getting hijacked by those who advocate Islamophobia.