Religion is used to override gender equality guaranteed by the Indian Constitution so that women are subordinated to men. But when women challenge this age-old tradition, they are ostracized by male clergy on the assumption that God has ordained women should be subordinated to men. This is what happened to Jamida who led an all-male prayer in a mosque at Cherukode, near Wandoor in Mallapuram district of Kerala on January 26 which happened to be a Friday and an important day for Muslims to pray.
Her action provoked die-hard fundamentalists to proclaim that this woman Imam had “defiled Islam” which meant she would have to be eliminated. They forgot that in the family of Prophet Muhammad, there were women Islamic scholars although there is no recorded instance of them leading men in prayers.
This is why Jamida has smashed male-conceptualised tradition giving rise to the question as to whether God created man in His own image or man created God in his image to subjugate women down the centuries. In Islam, Imams are chosen from among the worshipers present at the time of the prayer.
Men and women have been segregated for centuries while praying because whatever their status, men pray shoulder-to-shoulder which makes it unthinkable for a woman to stand next to a man. At the Jama Masjid in Delhi, women do offer prayers but it has traditionally been male Islamic clerics who lead the Friday prayers. Female worshipers either maintain some distance from men or stand in the back rows.
To break this gender segregation in Islamic prayers, a US-based professor Dr Amina Wadud led a mixed prayer of men and women in 2005 in New York, where female worshipers deliberately lined up in the first rows. Jamida is the first Indian woman to break tradition and lead the Friday prayers which puts her on par with Dr Amina Wadud.
And so Jamida, unwittingly, also joined the ranks of the great intellectuals in the annals of the Supreme Court who dissented. Quoting American judge Charles Evan Hughes, Justice H R Khanna who had to resign from the Supreme Court due to his dissenting judgment in the Habeas corpus case wrote :
“A dissent in the court of last resort, is an appeal to the brooding spirit of the law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”
The year 1976 was no ordinary time, and Justice Khanna’s dissent no ordinary dissent. At the peak of Indira Gandhi’s Emergency, four Judges of the Supreme Court had just held that even the right to life stood suspended during Emergency. The lone dissenting voice in the notorious Habeas corpus case was Justice Khanna’s. It forever extinguished his judicial career and his chance of becoming a Chief Justice of India (CJI), but gained the admiration of posterity for standing up for what is right.
Justice Rohinton Nariman spoke of the “three great dissents” of the Supreme Court. The first was Justice Fazl Ali’s dissent in A K Gopalan versus State of Madras in 1950, one of the earliest judgments of the Supreme Court. The Gopalan majority had held Article 21 of the Constitution, which stipulated that “no person shall be deprived of his life or personal liberty except according to procedure established by law”, provided only a narrow protection against lawless infractions of bodily integrity and personal freedom by the state.
Not so, declared Justice Fazl Ali prophetically, arguing instead that the phrase “procedure established by law” required that deprivations of life or personal liberty must conform to standards that were themselves just, fair, and reasonable. The next was CJI Subba Rao’s dissent in Kharak Singh versus State of UP in 1962, holding against five of his brother judges that the Constitution guaranteed a fundamental right to privacy, and that police surveillance was unconstitutional.
The last was of course, Justice Khanna whose iconoclastic judgment made him a memorable judge for posterity, defeating Indira Gandhi’s bid to eradicate him from posterity when she superceded him. And finally in 2018, we come to Justice Chelameswar, arguably the greatest dissenter of the modern Supreme Court.
He not only asserted in his dissenting judgment where the majority struck down the National Judicial Commission Act that the collegium system was a “euphemism for nepotism” but created a whirlwind when he declared on behalf of the four senior most Supreme Court judges that “democracy was in danger” so that “some wise men should not say 20 years later that Justices Chelameswar, Ranjan Gogoi, Madan Lokur and Kurien Joseph sold their souls.”
For judges who do not want to sell their souls to the government of the day is revolutionary because some judges like CJIs A N Ray, M H Beg, Y V Chandrachud, P N Bhagwati, and perhaps Dipak Misra did sell their souls to the government. Although supreme court and high court judges are not deemed to be employees of the government; it is the state exchequer which pays their salaries and gives them all facilities to discharge their judicial functions. By defying age-old Islamic tradition, Jamida, who is an expert in the holy Quran but not the Constitution, stood up for gender equality, placing her together with great dissenters like Justices Khanna and Chelameswar.
The writer holds a PhD in law and is a journalist-cum-lawyer of the Bombay high court.
