New Delhi: The All India Muslim Personal Law Board (AIMPLB) told the Supreme Court on Friday (April 24) that while Muslim women are not barred from entering mosques, they cannot insist on access through the main entrance or demand removal of any barrier that separates worshippers by gender within a mosque.These arguments were put forward by the AIMPLB counsel, Senior Advocate M.R. Shamshad, before a nine-judge Constitution Bench headed by Chief Justice of India Surya Kant. The AIMPLB is a private body formed to articulate positions on Muslim personal law.A report in the Indian Express said that in response to CJI Kant’s question, “For factual clarity, are women allowed to enter the mosque?” Shamshad responded, “There is no quarrel among the religious denominations in Muslims that women can enter mosques. And that too for prayer, but there is certain discipline that has to be followed.”He said women’s right to enter mosques for prayer is subject to “established religious discipline and practices”.Shamshad opposed a ruling directing mosques to allow the entry of women from any of its entrances. He also opposed any order revoking the norm of a physical barrier separating worshippers by gender. He said that while men are obligated to offer congregational prayers in mosques, women are not under such a requirement – it was up to them if they wished to participate in those gatherings.Women may pray at home while receiving equivalent spiritual merit, he said.Justice Ahsanuddin Amanullah observed that the gender distinction between obligations for congregational prayers in mosques existed but was historically linked to social roles, including childcare responsibilities that fell on women. He noted that such practices have been governed by tradition since the time of the Prophet.“You should elaborate for everybody’s consumption that right from the beginning, there is also no dispute (that women can enter), that it started from the holy Prophet himself,” Justice Amanullah said. Justice Nagarathna also asked, as per a report in LiveLaw: “So, it is not mandated for them [women] to attend a congregation?”Agreeing, the counsel said, “Yes, my lords. The Prophet himself said, don’t stop women coming to the mosque. There is clarity on this. And many of those who have recorded the hadith in many volumes have recorded this narration that the Prophet instructed that don’t stop women coming to the mosque.”Justice Amanullah asked Shamshad to explain why it is not mandatory for women to attend mosques for prayers. “Give the reason also. The reason was if everybody goes from the house, who will look after the children. If she has the time, the capacity, she can also go, but then the crux comes”, where she will stand, he said.On the question of unrestricted access to mosques, Shamshad pointed out that the petitioners were equating the musallah (place of prayer) with the structure of Hindu temples, where a sanctum sanctorum exists. He said this was an incorrect understanding.“If the religion believes that there is no sanctum sanctorum inside the mosque, then nobody can insist that ‘I have to stand at a particular place’ or ‘I have to be first to lead the namaz’.”Why this hearingThe court is currently hearing a batch of petitions that raise constitutional questions arising from the September 2018 Sabarimala judgment. A number of petition have been “clubbed”, including a PIL filed in March 2019 by a Pune-based couple, Yasmeen Zuber Ahmad and her husband Zuber Ahmad Nazir Ahmad Peerzade. This petition, related to Muslim women’s access to mosques, makes specific pleas that substantially rely on the Sabarimala ruling.The background to this PIL, as per leg news site Supreme Court Observer, was the petitioners’ written request to the Mohmidiya Jama Masjid in Pune to allow women entry to offer prayers. After the request was denied at multiple levels, Yasmeen approached the Supreme Court seeking relief under the writ of Mandamus and citing Articles 14, 15, 21, 25 and 29 of the constitution. The writ is a court order directing a public authority to perform a duty it is legally required to perform.Yasmeen’s petition argues that any fatwa (opinion based on the sayings of Prophet Mohammad) preventing Muslim women from entering mosques to pray must be set aside.It further demands a legal ruling that women must be allowed to offer prayers inside mosques, enter through any of its doors and have access to the musallah. It seeks permission for women to pray without being separated by a barrier from male congregants. It also seeks a ruling that women can attend regular congregations in mosques as well as special prayers on Fridays, Eid and so on.Why Sabarimala matters to this caseIn 2018, the Supreme Court struck down as exclusionary the restriction on women of menstruating age from the Sabarimala temple’s sanctum sanctorum. It held that religious customs cannot override constitutional rights. Following this judgment, numerous petitioners approached the court, challenging religious customs while citing the constitutional bar on gender-based discrimination.One such petition is the Pune couple’s PIL, admitted by the Supreme Court as an independent case in March 2019 but taken up later along with other matters. The court had at the time issued notices to the Union government, the Sunni Waqf Board and the AIMPLB. Legal proceedings had started in the case.In November 2019 a five-judge Supreme Court bench hearing the Sabarimala review petitions had referred the matter to a larger bench and directed similar matters be heard together. A nine-judge bench was constituted to hear these matters, starting in February 2020. It is this bench, consisting of Justices B.V. Nagarathna, M.M. Sundresh, Ahsanuddin Amanullah, Aravind Kumar, Augustine George Masih, Prasanna B Varale, R Mahadevan and Joymalya Bagchi, led by the CJI, that heard the AIMPLB on Friday.Barrier between worshippers?While Shamshad’s argument has drawn attention, the original petitioners’ PIL had also emphasised that Islam does not oppose women entering mosques to pray. That is why this petition stands out – it has sought a specific ruling from a constitutional court for mosques to allow women in (not just the Pune-based Mohmidiya Jama Masjid) to pray – although the entry of women is not barred by Islamic law.The PIL argues that despite no theological restriction, social norms deter women from participating in congregational prayers. “…socially, Indian women are not encouraged to regularly pray at mosques even if they do have separate enclosures,” the petition says.It says that even in the mosques where women are allowed, there are separate entrances and enclosures for worship for men and women. “There should not be any gender discrimination and allow Muslim women to pray in all,” the petition says, while highlighting that the segregation desired during prayer was not in sync with social realities.It also says that while women are allowed to enter mosques that have a separate space for them, “most mosques in India do not” have such spaces at all, and some mosque managements refuse to create them, effectively creating a gender-based exclusion.Previous hearings related to the PILThese very questions were also raised in 2020 in the Supreme Court during a hearing in the PIL. At the time, on the primary question of whether women are permitted to pray in a mosque, the AIMPLB had said there was no such religious restriction. Those arguments were in direct reference to the Pune case, which had not been clubbed with other matters.“The present respondent has taken [the] stand, as per Islamic texts, that entry of woman into mosque for namaz is permitted. Any other fatwa to this effect may be ignored,” the AIMPLB had then said.“However, on the sanctity of fatwa, it is submitted that it is an opinion based upon religious texts, doctrine and their interpretation and has no statutory force,” AIMPLB had said. It also said, “Upon having received the opinion, it is for the follower of Islam, who seeks [a] fatwa, either to accept the same or not.”AIMPLB had also noted that courts could not restrain individuals from seeking a fatwa, “as the same shall directly hit the right and freedom of religious belief of an individual”.These arguments were in the AIMPLB’s written responses to the Pune PIL petitioners in court. It had argued that the petition was inviting the court to “interpret religious beliefs and religious practices”, and not just raising matters of statutory laws that govern the management of Islamic religious sites.This distinction, the body had argued, was relevant because the court could not interpret religious norms as it would infringe on the right to freedom of religion.“Hence, the respondent is of its firm view that the averments/ pleadings in relation to Articles 14, 15, 21, 25 and 29 of the Constitution of India cannot be considered and looked into for the prayers as claimed in the present petition,” AIMPLB had said.The Pune petitioners’ caseThe PIL filed by the petitioners asserted that the Quran casts the same religious duty on males and females, and that “women are not subject to less religious duties or obligations”, just as the spiritual rewards were the same for them. It submitted that according to historical sources, Prophet Muhammad had encouraged women to actively participate in mosque congregations and prayers.It argued that in recent times, women were not being allowed inside mosques in a few countries, especially in India and neighbouring countries. “Otherwise, in most of the other countries, women are allowed in mosques”, including the sacred mosques in Mecca, without segregation as the norm.It submitted that mosques receiving state funds cannot make segregation and discrimination amongst entry of people inside mosque based on sex and gender, and cited the Directive Principles of State Policy. The petitioners said that Article 44 encourages the Indian state to “secure a uniform civil code for all citizens by eliminating discrepancies between various personal laws currently in force in the country”.Wider ambit of hearingsLiveLaw reports that Shamshad argued that courts have misapplied the “Essential Religious Practice” (ERP) doctrine to Islam by judging practices based on whether they appear “mandatory” or not. He said Islam has a detailed internal system distinguishing between what is forbidden, obligatory and recommended – which courts often fail to take into account.This is relevant to the current matter because the nine-judge bench is considering a wider set of questions including:Can courts decide what is an “essential religious practice” (ERP)?How should Articles 14 (equality) and 25 (freedom of religion) be balanced?What is the scope of judicial review in religious matters?While the arguments in the Pune case are based on equality, (and directive principles), they implicitly rely on the court’s power to assess and intervene in religious practices – a power that flows from the ERP doctrine. Shamshad pointed out that courts have relied on readings of the Quran and flawed translations of Hadith, leading to incorrect conclusions about what is “essential” to Islam. As a result, several Islamic practices have failed the ERP test.To explain this, Shamshad said, “Here is a petition [Pune PIL] which says that for a Muslim women, mosque is essential. And I have a judgment, which says mosque is not [an] essential [religious practice] in Islam.” He was referring to the 1994 Ismail Farooqui judgement, in which the Supreme Court ruled that since namaz could be offered “even in the open”, mosques were “non-essential” to Islamic practice.Friday was the eighth day of the hearings in the Sabarimala reference case. The matter will resume for hearings next week.