By Faizan Mustafa and Jagteshwar Sohi
July 17, 2019
The Supreme Court has dismissed a PIL filed by Swamy Dethathreya Sai Swaroop Nath, president of Akhil Bhartiya Hindu Mahasabha (Kerala), seeking entry of women into mosques. A division bench of the Kerala High Court on October 11, 2018, had also dismissed this petition as the petitioner failed to demonstrate the existence of a practice of denying entry to women.
A bench led by Chief Justice of India said let a Muslim woman challenge the practice. But a Muslim woman is already in the apex court. As a matter of fact, the Supreme Court, in April, had issued a notice on a petition by a Muslim couple from Pune, which sought to quash what they termed as prohibition on the entry of Muslim women in the mosques of the Hanafi sect.
No one raised the fundamental issue that mosques are not statutory authorities or “state” within the meaning of Article 12 of the Constitution and therefore, writ jurisdiction cannot be invoked against them.
We must make a distinction between theology and law. Dalit entry into temples, women’s entry into the Sabarimala temple and mosques do involve legal issues because of the right to equality and non-discrimination. But as far as women entry in mosques is concerned, it is to be kept in mind that the Supreme Court held in Ismail Farooqui (1994) that mosque is not even an essential feature of Islam.
The Supreme Court refused to reconsider this erroneous finding of the court in M Siddiq (2018). The issue will again indirectly come up when the court starts hearing the Babri masjid appeals. In any case, in Gurugram, Muslims were not permitted to pray even in open fields.
Freedom of religion in India is confined to only essential religious practices. Moreover, the validity of prayers is a purely theological question. No one will go to the temple if her/his prayer is not acceptable to her/his god or deity. That’s why only a handful of women went to Sabarimala. No court has the power to pass judgment on the validity of prayers.
Islam, unlike Hinduism, at least in theory, does not consider anybody untouchable. Therefore, the concept of one person polluting another is unknown in Islam. Islam does not have anything like Dalit exclusion from temples. Surprisingly, the petitioners are not able to distinguish between a Hindu temple and a Muslim mosque.
The sanctum sanctorum is all important in the former, whereas there is no such thing in the latter. It is not necessary for even men to have auditory access to musalla that has been wrongly called the main sanctuary in the petition. Even the men who stand in the last row or on the upper floors of the mosques can validly pray though they neither see the imam nor (in some cases) hear his recitations.
Article 26 of the Constitution gives the freedom of religion not only to religions but even to sects thereof. Most Indian Muslims belong to the Hanafi sect of Sunnis. While the Shafi’i sect does permit women to pray in mosques if they so desire, the Hanafi and Maliki sects are opposed to it. Going to the mosque five times a day is quite an ordeal even for men in today’s hectic life.
There is a consensus amongst schools that unlike men, women in Islam do not have a religious obligation to offer the Friday or the five daily prayers in mosques. They are permitted to offer prayers in their homes and get the same reward in life hereafter. Women are thus not in any religious disadvantage. Islam does make an exception even in obligations. Thus, while zakat (2.5 per cent mandatory annual charity) and haj (pilgrimage) are obligations on the rich, poor people are exempt from these. Similarly, women, children and elderly are exempt from jihad (fight against injustices and oppression).
Interestingly, the Quran nowhere prohibits women from praying in the mosques. There is concrete evidence that during the Prophet’s lifetime, women used to pray in mosques. Prophet had said that “do not bar God’s handmaidens from God’s places of worship”. Abu Hanifa, on the authority of Ibn Umar, quoted a tradition wherein the Prophet permitted women to attend fajr (early morning) and isha (late evening) prayers.
As far as Eid prayers were concerned, women were asked by the Prophet to join congregations outside the city called Eidgah, even if they were in their menstrual cycle. They could join the supplications before and after the prayer, but stay away from the Eid prayer.
Abu Hanifa and Abu Yusuf acknowledged this position, though the former disapproved all women going out for prayers and tried to confine this permission only to the older women. Al Shaybani and Al Tahawi too restricted this permission to the older women as they were not comfortable with younger women going to mosques.
The moot question is when women and men pray together in mosques without any barrier, whose prayer gets invalidated. Hanafi jurist Al-Sarakhsi explicitly says that “if a woman prays behind an imam who has ‘resolved’ to lead mixed communal prayer and she stands in the middle of the row, then she invalidates the prayer of the one man to her right, the one to her left, and the one immediately behind her.”
Thus such a woman’s own prayer remains valid, and the prayer of men praying in front of her remains valid. It is clear that even the Hanafi School does not forbid women from entering and praying in mosques. They may pray in mosques, and their prayers remain valid.
If women pray in their rows in the mosques at the place designated for them, even men’s prayers are not invalidated. There can also be all women prayers led by a woman. It seems the Prophet himself had appointed one Umm Waraqa, who was a scholar of the Quran, as imam of her household and even asked someone to act as muezzin.
Of course, some jurists doubt the authenticity of this tradition. Reportedly, the Prophet’s wives, Aisha and Umma Salama, also led all women prayers in their homes. Ibn Hazm says that while Aisha led the sunset prayer, Umm Salama led the afternoon prayer. Many jurists permit women to lead supererogatory prayers, particularly, in Ramadan.
Hanafi jurists started opposing women going to mosques because of the possibility of men harassing them. Al Zalai says even Aisha, the Prophet’s wife, had said “had the Messenger of God seen what we have seen, he would have barred women from the mosque as the children of Israel (Jews) had barred their women”. Women had begun to adorn themselves and wear perfume and jewellery. For this reason, second caliph “Umar barred them”.
In a number of Muslim countries, women are allowed to pray in a designated area. We live in a modern and liberal world and therefore, let all mosques have a designated space for women so that they can utilise the permission given to them by the Prophet.
Due to the possibility that they may be harassed, they cannot be stopped from praying in mosques in designated spaces reserved for them. Let Muslim men learn to behave. Let mosques’ management create facilities of washrooms and ablutions for them.
Mustafa is Vice-Chancellor, NALSAR University of Law and Sohi teaches at NALSAR University of Law
Source: The Indian Express