Background and issue
The Petitioners in this case, Yasmeen Zuber Ahmad and her husband, have filed a writ petition to permit female Muslims to enter mosque’s. The petitioner had written to the Mohmidiya Jama Masjid in Pune requesting that women be allowed entry to offer prayers. The request was denied and the petitioners wrote a letter to the Imam of the Jama Masjid, who subsequently denied the request as well. The police too, had failed to support the petitioner in her request.
What does the petitioner seek
The petitioner has prayed for –
Permitting Muslim Women to enter mosques;
Permitting Muslim Women to offer prayer/Namaj inside Mosque’s
Permitting Islamic women to enter through the main door and have visual and auditory access to the main sanctuary (musalla);
Permitting women to pray without being separated by a barrier;
Direction to quash or set aside the fatwa restraining Muslim Women from entering the Mosque;
The petitioner relied on various Supreme Court decisions regarding secularism and the individual right to freely propagate, practice and profess religion. The petitioner invoked Indra v. Rajnarayan (1975), S.R. Bommai v. Union of India and Bal Patil and Anr v. Union of Indian which all upheld the indispensable secular nature of the state. The Bal Patil judgement went a step further and delineated the states duty to come up with a harmonious system of governance that pushes for secular unity.
The petitioner also cited Khursheed Ahmad Khan v. State of Uttar Pradesh to claim fundamental rights violations. Prohibition of entry is repugnant to the basic dignity of women and violative of fundamental rights under Articles 14, 15, 21, 25 and 29. The judgement noted that prohibition and permitting of certain practices cannot be termed as religious practices. The petitioner argues that Article 25(1) which ensures freedom of religion, is subject to the fundamental rights present in Article 14, 15 and 21.
The petitioner also places further emphasis on the Holy Quran, stating that there was no record of opposition to women entering Mosques and offering prayers. Where they are allowed, there are separate enclosures which she argues is a basis for gender discrimination.
The petitioner notes that the Uniform Civil Code, despite its mandate under Article 44, has remained an “elusive Constitutional goal”. She notes the judicial restraint and the ignorance from the legislature in this regard.
The petitioner finally argues India is party to multiple international covenants which prohibit discrimination. Articles 3 and 7 of the Universal Declaration of Human Rights (UDHR) provides for the right to life, liberty and security as well as equal protection of law respectively. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (which India acceded to in 1979) requires that the rights in the Covenant be guaranteed without any discrimination including on the lines of gender and religion.