The Karnataka High Court on Tuesday, March 15 dismissed the petitions filed by Muslim students for wearing hijab in classroom and held that the hijab is not an essential religious practice under Islam. The girls had argued before the bench that wearing the Islamic headscarf was an innocent practice of faith and an essential religious practice, and not a mere display of religious jingoism. "We are of the considered opinion that wearing of hijab by Muslim women does not form a part of essential religious practice in Islamic faith," Chief Justice Ritu Raj Awasthi, who headed the full bench of the High Court, said reading out a portion of the order.
The court said that matters that are essential to religious faith or belief have to be judged on the evidence. “There is absolutely no material placed on record to prima facie show that wearing of hijab is a part of an essential religious practice in Islam and that the petitioners have been wearing hijab from the beginning,” the judgment read.
It added that it cannot particularly be argued that hijab can be justifiably treated as fundamental to the Islamic faith, and that if people do not wear it, they become sinners and Islam loses all its glory and ceases to be a religion. The court said that a practice has to pass a test of essentiality — and that a practice claimed to be essential to a religion and has been carried on since time immemorial or is grounded in religious texts does not mean it has constitutional protection.
“Petitioners have miserably failed to meet the threshold requirement 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 judgment read.
It adds that the word ‘hijab’ is not mentioned in the Quran, and only a veil to cover the bosom and modesty in dress is. Citing specific verses, the court said that there is “sufficient intrinsic material” within the scripture itself to say that the hijab is recommendatory, if at all.
“The Holy Quran does not mandate wearing of hijab or headgear for Muslim women,” it said, referring to specific verses. These verses, the court said is only a direction because there is no penalty or penance for now wearing it. “This apparel at the most is a means to gain access to public places and not a religious end in itself. It was a measure of women enablement and not a figurative constraint,” the judgment read.
The bench said that in order to establish their case, the petitioners had to prove that wearing the hijab is an essential religious practice, but the petitioners have not given enough evidence to prove their case to substantiate the allegations. “The material before us is extremely meagre and it is surprising that on a matter of this significance, petition averments should be as vague as can be,” it said.
It added that how long the petitioners have been wearing hijab is not specified, and that the plea with regard to wearing the hijab before they joined the institution is absent.
The court relies on previous judgments to conclude what an essential religious practice is, but does not rely on any particular one to conclude why wearing the hijab does not constitute an essential religious practice. The Karnataka High Court referred to the ‘The Holy Quran: Text, Translation and Commentary’ by Abdullah Yusuf Ali,' to establish that the Quran does not mandate the hijab. The court said that it was referring to this version of the other seven cited during the hearing, as there was "a broad unanimity at the Bar as to its authenticity and reliability."
The bench also said that wearing the hijab is not religion-specific, and that the Quran shows concern for the cases of instances where women were molested, and said that the history of mankind is “replete” with instances of abuse and oppression of women. It is because of this, it said, the Quran recommended wearing of the hijab and other apparel as social security. “May be in the course of 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 Islamic faith,” it said.
“At the most, the practice of wearing this apparel may have something to do with culture but certainly not with religion,” the court said. It added that there is no punishment or penalty for not wearing hijab, and that the apparel, at the most, is to gain access to public places and not a religious end in itself. “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.”