Religious decorum above unrestricted entry: Counsel in SC mosque case

The Supreme Court was informed on Tuesday that the principle of religious sites being ‘open to all’ does not grant individuals a blanket license to disregard the established decorum and traditional practices of a specific faith.

As the top court resumed its heavy-duty hearings on discrimination against women at religious places, the focus shifted from the Sabarimala temple to the complexities of Islamic customs. Advocate Najam Pasha, representing parties opposing unrestricted entry into mosques and dargahs, argued that religious institutions must maintain the autonomy to manage their own affairs under Article 26 of the Constitution. He contended that even if a neighborhood mosque is accessible to the public, it remains a space governed by specific religious protocols that cannot be breached in the name of individual equality.

Decorum over absolute access

Arguing before a bench led by the Chief Justice of India, Adv. Pasha emphasized that "open to all" does not translate to a "freedom to do anything." He drew a sharp distinction between public access and the right to perform rituals that contradict a site’s sanctity.

"Even if a neighborhood mosque is open to everyone, no one can go there and ring a bell or perform aarti," Pasha submitted, noting that every religious site has its own decorum. He argued that the authority to determine these rules rests with the religious institution itself, rather than being subject to individual whims.

Beyond the written text

A significant portion of the morning session dealt with what constitutes "essential religious practice." Pasha cautioned the court against relying solely on a literal reading of the Quran to define Islamic rights.

He noted that because the Quran is concise, the traditions of the Prophet (Hadith) are equally integral to the faith. "The mere presence of a book does not constitute 'essential authority,'" he said, arguing that customs evolved over centuries carry significant weight in determining the religious identity of a community.

Tensions between Article 25 and 26

The day's proceedings saw a deep dive into the friction between individual rights (Article 25) and institutional rights (Article 26). Adv. Pasha questioned why the framers of the Constitution placed Article 26 in a position where it could arguably oversee institutional management.

He compared a religious body to a company: while individuals have rights, they must still follow the management's rules once inside the premises. Justice Amanullah weighed in on this, noting that for any institution—be it a dargah or a temple—there must be a system of management to prevent chaos. "There must be a recognized organization that sets these rules," the Justice observed.

Diversity of tradition highlighted

The court also heard from representatives of other major religious sites, including the Maa Kamakhya Temple in Assam. The temple’s counsel argued that their traditions, where menstruation is celebrated as a festival and only female priests are present at certain times, prove that not all exclusive practices are "discriminatory."

The lawyer argued that these rituals are a celebration of "women's power" within the Tantric tradition. This prompted the bench to reflect on whether judicial review should be limited when a custom does not amount to "religious cruelty."

Impact of institutional status

As the afternoon progressed, the bench discussed the wider implications of religious segregation. Adv. Ashwini Upadhyay argued that giving too much power to religious institutions could lead to sectarian divides similar to those seen in neighboring countries.

However, other counsels, including Madhavi Divan, pointed out that for many "village people" and smaller sects, their entire social structure is tied to these religious institutions. The hearing concluded for the day with the court reiterating that while it respects religious freedom, it must ensure that no practice violates the fundamental "constitutional limits."

The bench is expected to continue hearing arguments tomorrow, likely touching upon the All India Muslim Personal Law Board’s (AIMPLB) stance that while Islam doesn't bar women from mosques, home prayer remains "preferable."