Petition inspired by Sabarimala – I

With its 2018 judgment in the Sabarimala dispute, the Supreme Court opened the door to subjecting religious customs to gender equality. It declared unconstitutional, the Sabarimala temple’s custom of excluding women between the ages of 10 and 50 years old.

While the Sabarimala judgment is now under review, it has nevertheless inspired various litigants to file petitions demanding entry into mosques for Muslim women. In fact, in 2019, the Supreme Court agreed to hear a petition filed by a Muslim couple from Maharashtra – Yasmeen and Zuber Ahmed. According to the couple, Muslim women across India should have the right to pray in mosques.

Currently, the Court is attempting to delimit the boundaries of freedom of religion in its review of the Sabarimala judgment. As such, it has tagged the Yasmeen Zuber and other petitions to the review.

In this two-part post, we compare the Yasmeen Zuber petition to the lead Sabarimala petition, filed by the Indian Young Lawyers Association (IYLA). In particular, we focus on the arguments (grounds) they present. In this first part, we begin with the similarities. Both petitions offer near interchangeable arguments as to why the exclusion of women cannot enjoy protection under the freedom of religion provisions of the Constitution.

Freedom of Religion under the Constitution

Before comparing the petitions, it is important to be familiar with the freedom of religion provisions of our Constitution – Articles 25 and 26.

Article 25 states that every individual is equally guaranteed ‘freedom of conscience and the right to freely profess, practice and propagate religion’. This is not an absolute right. It is subject to ‘public order, morality and health’ and other fundamental rights contained in Part III of the Constitution. In addition, the State may make laws to regulate ‘secular activity’ of religious practices. Finally, there is a reform mandate to ensure that public Hindu institutions are accessible to ‘all classes and sections of Hindus’.

Article 26 is the equivalent provision for groups. It states that ‘every religious denomination’ is equally entitled to ‘profess, practice and propagate religion’. This includes the right to manage internal ‘affairs in matters of religion’, such as religious customs. Once again, this denominational right is subject to public order, morality and health. However, there is no explicit reference to the other provisions of Part III.

Read together, Articles 25 and 26 promise worshippers and denominations the freedom to choose and practice religious customs. However, this freedom is not limitless. It does not entitle worshippers and denominations to deny others their fundamental rights. Historically, however, the Court has been hesitant to subject religious matters to equality and non-discrimination claims.

Similarities

The lead petitioners in the original Sabarimala dispute, IYLA, had based their primary argument on showing that the Sabarimala’s custom violated both the right to equality and freedom of religion of female worshippers. Similarly, Yasmeen Zuber and her husband submitted that excluding Muslim women from praying in mosques, violates their rights to equality, life with dignity and freedom of religion.

Upon closer analysis, there are two main themes that bind the IYLA and Yasmeen Zuber petitions together. The first revolves around the idea that Articles 25 and 26 – freedom of religion provisions – are subject to other fundamental rights. The second centers on the notion that the customs/practices being challenged are not essential to their parent religions. More below:

Subjecting Articles 25 and 26 to other Fundamental Rights

To convince the Court to interfere with the Sabarimala temple’s religious customs, the IYLA contended that any temple that receives public funds cannot practice unconstitutional customs. The Sabarimala temple is managed by the Travancore Devaswom Board, which receives State funds. Therefore, the IYLA submitted that the Temple’s custom of excluding women between the ages of 10 and 50 years cannot enjoy protection under Articles 25 and 26.

In a similar fashion, Yasmeen Zuber Ahmed submitted that mosques that receive public funds are subject to Article 15 of the Constitution. Meaning, they cannot practice discriminatory practices against women.

However, she went one step further. She contended that the rights to equality and to live with dignity under Articles 14 and 21 are more fundamental than the right to freedom of religion under Article 25 – ‘a life of dignity and equality is undisputedly the most sacrosanct fundamental right’. Therefore, she asserted that no mosque can be allowed to exclude women from praying.

Essential Religious Practices

Another strong similarity between the two petitions lies in their shared claim that the custom they are challenging, is not essential to its parent religion.

Citing the test laid down in Shirur Mutt, the IYLA recited that religious practices and customs only earn constitutional protection if they are considered essential. The IYLA contended that the Sabarimala temple’s exclusionary custom could not be considered essential. Firstly, they cited evidence of the temple being open to women in the past. Further, they offered comparative counter-examples, such as a Lord Ayyappa temple where the Chief Thantri is a woman (Sabarimala is also devoted to Lord Ayyappa). Finally, they argued that the temple is Hindu and that excluding women is not essential to Hinduism. On these grounds, they put forth that the custom cannot enjoy immunity under Article 25 or 26.

Similarly, Yasmeen Zuber Ahmed claimed that denying women entry to mosques cannot be considered essential to Islam and hence doesn’t enjoy absolute protection under Articles 25 and 26. She submitted that neither the Qur’an nor important Hadith command that women should not enter mosques. She said that, on the contrary, some verses say women may pray in mosques. In addition, she cited how women are allowed to make the pilgrimage to Masjid-al-Haram in Mecca. Finally, she said it was common practice in many other countries to allow women to enter mosques, provided that they pray in a separate area. Given these facts, she contended that excluding women from mosques could not be considered an essential practice.

In this manner, both petitions advance the position that the custom they are challenging is subject to State regulation, as it is both discriminatory and non-essential. Beyond these argument on essentiality, the IYLA and Yasmeen Zuber petitions begin to diverge. In our second post, we explore some of the main differences between the two.

Read Part II