While declaring that wearing of hijab is not an ‘essential religious practice’ for Muslim women in Islamic Faith. The Karnataka High Court said, “The Holy Quran does not mandate wearing of hijab or headgear for Muslim women.”
The full bench of Chief Justice Ritu Raj Awasthi, Justice Krishan S Dixit and Justice J M Khazi gave a 129-page judgment. Their judgment relied on the ‘The Holy Quran: Text, Translation, and Commentary by Abdullah Yusuf Ali, (published by Goodword Books; 2019 reprint).
The bench also took into account various Suras. It was observed that the word (hijab) as such is not employed in the Quran. Hence, it cannot be disputed, although commentators may have employed it.
The judgment quoted the footnote 3760 to Verse 53, (from the referred Holy Quran), observed, “…In the wording, note that for Muslim women generally, no screen or hijab (Purdah) is mentioned, but only a veil to cover the bosom and modesty in dress. The screen was a special feature of honor for the Prophet’s household, introduced about five or six years before his death…”.
Furthermore, the bench observed that there was sufficient intrinsic material within the scripture itself. Thus, it supports the view that wearing the hijab has been only recommendatory if at all it is.
The Court also noted that the essential part of a religion is primarily to be ascertained concerning the doctrine of that religion itself. Henceforth, it refused to accept the contention of the plaintiffs relying on the sura (xxxiii), verse 59, which says that wearing the hijab is an indispensable requirement of the Islamic faith.
The Court went into the historical aspects of the said sura. It was opined that hijab at best can be a cultural practice and not religious.
The bench said, “The region and the times from which Islam originated were not an exception. The era before the introduction of Islam is known as Jahiliya-a time of barbarism and ignorance. The Quran shows concern for the cases of ‘molestation of innocent women’ and therefore, it recommended wearing this and other apparel as a measure of social security. Maybe over time, some elements of religion permeated into this practice as ordinarily happens in any religion. However, that per se does not render the practice predominantly religious and much less essential to the Islamic faith.”
Further, the bench concluded that it could be reasonably assumed that the practice of wearing hijab had a thick nexus to the socio-cultural conditions. It said that the veil was a safe means for the women to leave the confines of their homes.
The court also exclaimed that “What is not religiously made obligatory therefore cannot be made a quintessential aspect of the religion through public agitations or by the passionate arguments in courts.”
The full bench remarked that whichever be the religion, whatever is stated in the scriptures, does not become per se mandatory in a wholesale way. If everything was to be essential to the religion logically, this concept would not have taken birth. On this premise, the Apex Court in SHAYARA BANO proscribed the 1400-year-old pernicious practice of triple talaq in Islam.
It could hardly be argued that the hijab, a matter of attire, can be justifiably treated as fundamental to the Islamic faith. It was not that if the alleged practice of wearing a hijab was not adhered to, those not wearing hijab become the sinners to Islam. The Karnataka High Court chose not to follow the Kerala High Court judgment. The Kerala HC judgment declared the hijab to be an essential practice in a case related to the dress code for the All India Pre-Medical Test.
The petitioners failed to meet the threshold requirement of pleadings and proof as to wearing a hijab is an inviolable religious practice in Islam.
The arguments of the state government that the Writ Petitions lack the essential averments were accepted by the court. It said that they do not have any affidavit before them. They were sworn to by any Maulana explaining the implications of the suras quoted by the petitioners’ side. The plea regarding wearing of hijab before they joined the institution was militantly absent. No explanation was offered for giving an undertaking at the time of admission to the course.
The court also opined, “This apart, it can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to the Islamic faith. It is not that if the alleged practice of wearing hijab is not adhered to, those not wearing hijab become the sinners, Islam loses its glory and it ceases to be a religion.”