In a landmark verdict on Tuesday, a three-judge full bench of Karnataka High Court declared that wearing of hijab by Muslim women is not an essential religious practice in Islam. While dismissing a bunch of petitions, the bench upheld the state government order banning wearing of hijab in educational institutions.
The bench of Chief Justice Ritu Raj Awasthi, Justice Krishna Dixit and Justice Jaibunnisa Mohiuddin Khazi in its 129-page order, rejected the plea that the ban on wearing of hijab by Muslim girls in educational institutions violates rights guaranteed under Article 14 (equality), Article 15 (no discrimination over faith), Article 19 (freedom of speech and expression), Article 21 (protection of life and personal liberty) and Article 25 (freedom of religion) of the Constitution.
The high court said, “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. The petitioners have miserably failed to meet the threshold requirements of pleadings and proof as to wearing hijab is an inviolable religious practice in Islam and much less a part of ‘essential religious practice’”.
The high court said, prescribing school uniform is “a reasonable restriction constitutionally permissible to which the students cannot object… (If hijab is allowed), the school uniform ceases to be uniform…it will establish a sense of social separateness which is not desirable….All rights have to be viewed in the contextual conditions..Schools are ‘qualified public places’…(which) by their very nature repel the assertion of individual rights to the detriment of their general discipline and decorum.”
In the judgement, the high court said, “it can hardly be argued that hijab being a matter of attire, can be justifiably treated as fundamental to Islamic faith…Whichever be the religion, whatever is stated in the scriptures, does not become per se mandatory in a wholesale way. That is how the concept of essential religious practice is coined.”
“If everything were to be essential to the religion logically, this very concept would not have taken birth. It is on this premise the Supreme Court in Shayara Bano case, proscribed the 1,400-year-old pernicious practice of triple talaq in Islam. What is made recommendatory by the Holy Quran cannot be metamorphosed into mandatory dicta by a ‘hadith’ (hadees) which is treated as supplementary to the scripture”, the high court said.
The High Court bench said, “no affidavit sworn to by any maulana explaining the implications of the ‘suras’(from Holy Quran) quoted by the petitioners was placed before the court, and it was not specifically mentioned for how long the petitioners were wearing the hijab.”
The high court order dealt with three main aspects of the case: (1) Is wearing of hijab an essential religious practice in Islam? (2) Do government and educational institutions have the right to decide the dress code? (3) Is enforcement of dress code a violation of fundamental rights?
The court clarified that hijab is not an essential religious practice. It is a veil (purda) which Muslim women wear in public, the word hijab originates from the Arabic word ‘hajabah’ which literally means ‘hiding’. The court said, hijab is normally used by women to hide their face from others in public.
After going through research material, the high court opined that there is no mention of the word ‘hijab’ in the Holy Quran, but some Muslim scholars had indeed used this word in their writings. An expert in Islamic jurisprudence Abdulla Yusuf Ali in his book on Quran has mentioned the word ‘jilbab’, an outer garment in the form of a cloak, which is used to cover either the whole body, or from the face to the chest. Ali mentions that wearing of hijab or veil began in Prophet Mohammed’s home only five to six years before he passed away.
Progressive Islamic scholars agree with this view. A few days ago, the governor of Kerala Arif Mohammed Khan had come to India TV studio, and during an interview, he said, there was no mention of hijab in the Holy Quran. Khan said, wearing of hijab or veil began in Arab countries to differentiate Muslim women from female slaves during the Middle Ages, and it had nothing to do with Islam.
I have gone through the 129-page order of the High Court in detail. On Page 86, it is mentioned that the petitioners failed to produce even an affidavit for maulanas to say that hijab has been mentioned in Holy Quran. On Page 87, the order says, hijab is only a form of attire and wearing of hijab is not an essential Islamic practice for women. In its order, the high court mentioned excerpts from the writing of several Islamic scholars to substantiate its view. But hardliner Islamic clerics in India are unwilling to accept this. They allege that this could be part of a political strategy.
Politicians like AIMIM chief Asaduddin Owaisi, Jammu and Kashmir PDP chief Mehbooba Mufti, Samajwadi Party leaders Abu Azmi and Shafiqur Rahman Barq have alleged that this is part of a calculative strategy to keep Muslim girls away from higher education. Hardline Islamic outfits like People’s Front of India and Raza Academy of Mumbai have raised the bogey of “Islam is in danger”. They have argued that the high court can only adjudicate judicial issues and not religious matters.
There are activists who said wearing of hijab by Muslim girls is a matter of personal choice and it relates to personal liberty. Such activists should read the High Court judgement in its entirety, in which every single question has been transparently answered. Among the three judges on the full bench was an eminent Muslim lady judge, Jaibunnisa Mohiuddin Khazi. Those trying to raise questions on the HC verdict are trying to mislead the people.
I do not want to extrapolate on bigger issues. My issue is very simple: Muslim girls must be given access to better and higher education, so that they can occupy higher posts. They must have a Quran in one hand and a computer in another, as Modi once said in my show ‘Aap Ki Adalat’. Wearing hijab is their personal choice. They can wear hijab in educational institutions, but not inside classrooms. In a classroom taken by a teacher, everybody is a student, not a Hindu or a Muslim. Let us keep religion away from education.
The High Court also made a significant observation. It pointed towards a bigger danger. The high court order said, “The way hijab imbroglio unfolded gives scope for the argument that ‘some unseen hands’ are at work to engineer social unrest and disharmony. Much is not necessary to specify.” It is time for all of us to identify these ‘unseen hands’ and foil their designs. The high court is right The issue began when some Muslim girls started wearing hijab in a college. It was not a big issue. But the Hindu versus Muslim angle was added to it.
From one college in Udupi, the fire spread to cities like Aligarh, Indore, Ujjain, Lucknow, Azamgarh, Jamnagar, Surat, Patna, Jaipur and Hyderabad. A college issue was projected as an anti-Muslim issue across India. It was part of a bigger conspiracy, and the high court was right in making mention about it. I want to add a bit more. I feel, there are some people who, in their blind opposition to Prime Minister Narendra Modi, can go to any extent, and hijab issue was one of them. But the high court order has nipped their plans in the bud.
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