A ‘paradigm shift’: Decoding the hijab ruling

Laying down the first judicial declaration by a constitutional court on the essentiality of hijab in Islam, the Karnataka high court on Tuesday declared that the right to wear a hijab is not constitutionally protected as an essential religious practice.

A full bench of the high court held that “the Holy Quran does not mandate wearing of hijab or headgear for Muslim women” and that there is no prescription in Quran on wearing hijab as an indispensable requirement of Islamic faith.

The Karnataka government argued before the bench led by chief justice Ritu Raj Awasthi that wearing of hijab is not an essential religious practice in Islam and that, even otherwise, the state is constitutionally empowered to issue prohibitory orders to impose reasonable restriction to the exercise of fundamental rights. Those protesting against the government mandated ban contended that hijab is an integral part of Islam and the ban is an egregious invasion into their religious freedom.

Upholding the state’s views, the bench, which also included justices Krishna S Dixit and JM Khazi, covered in its judgment intricate questions of how the Constitution of India protects religious freedom, the State’s right to impose restrictions on the exercise of right, and the role of the judiciary as final arbiter of what constitutes reasonable restrictions.

Secularism, freedom of conscience, and right to religion

The 129-page judgment commenced its discussion by mapping out the contours of religious freedom as recognised under the Constitution. The bench referred to the rulings of the Supreme Court in the Kerala Education Bill case (1959) and in the SR Bommai case (1994) to point out how India welcomed people of diverse creeds, cultures and races to become the world’s most heterogeneous society.

The bench cited the apex court’s judgment in India Gandhi Vs Raj Narain, which explained the basic feature of secularism to mean that the State shall have no religion of its own and all persons shall be equally entitled to the freedom of conscience and the right freely to profess, practise and propagate religion under Articles 25 and 26.

The high court, however, emphasised that for India, there is no official religion, inasmuch as it is not a theocratic State and practices “positive secularism”, which, it said, is not antithesis of religious devoutness but religious tolerance. “The State does not extend patronage to any particular religion and thus, it maintains neutrality in the sense that it does not discriminate anyone on the basis of religious identities per se,” said the high court.

It then talked about the limitations on the right to practise and profess religion, referring to Article 25(1), which states that subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

The bench underscored that the limitations imposed on religious practices on the ground of public order, morality and health would cover beliefs and practices even those considered essential or vital by those professing the religion.

“The text and context of this Article juxtaposed with others unmistakably show that the freedom guaranteed by this provision in terms of sanctity, are placed on comparatively a lower pedestal by the makers of our Constitution qua other fundamental rights,” held the bench, lending credence to a Supreme Court judgment in Sri Venkataramana Devaru & Ors Vs The State of Mysore (1957).

Highlighting the limits on religious rights, the bench also banked upon the Supreme Court’s 2018 judgment in the Sabrimala case to flag that the right to the freedom of religion is not absolute and that the State is empowered to make laws in religious matters, not confined to public order, morality and health.

Protection of essential religious practice

Since the question of hijab being a part of essential religious practice was the bone of contention, the high court said, it was necessary to decide if wearing of hijab was made mandatory under Islam.

The bench cited the top court’s ruling in Acharya Jagdishwaranand Avadhuta and Ors Vs Commissioner of Police, Calcutta (1984) that elucidated essential part of a religion as the core beliefs upon which a religion is founded. “Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without that part or practice,” said this judgment.

Referring to the Sabrimala judgment, the high court noted that an essential religious practice must form the cornerstone of religion itself and has to be binding nature of the religion itself. “That a practice claimed to be essential to the religion has been carried on since time immemorial or is grounded in religious texts per se does not lend to it the constitutional protection unless it passes the test of essentiality as is adjudged by the Courts in their role as the guardians of the Constitution,” it maintained.

According to the high court, the Supreme Court judgments in the Sabrimala case and the Triple Talaq case (2017) paved the way for a “paradigm shift in the approach to the concept of essential religious practice”, by laying down that an essential religious practice should also be in sync with constitutional values.

These two judgments noted that it is the duty of the courts to ensure that what is protected as an essential religious practice is in conformity with fundamental constitutional values and guarantees and accords with constitutional morality.

“Thus, a person who seeks refuge under the umbrella of Article 25 of the Constitution has to demonstrate not only essential religious practice but also its engagement with constitutional values...it is a matter of concurrent requirement,” held the HC bench.

Quran, Hadith, and hijab

Having formulated the legal points, the high court proceeded to ascertain whether hijab has been prescribed as an indispensable part of Islam, either by Quran or Hadith (records of words or actions of prophet Muhammad).

During the course of hearing, the versions of different authors on this scripture were cited. Following unanimity at the Bar as to its authenticity and reliability, the high court decided to rely upon “The Holy Quran: Text, Translation and Commentary” by Muslim scholar Abdullah Yusuf Ali. The bench also noted that the Supreme Court also lent credence to Ali’s commentary on Quranic injunctions while deciding the Triple Talaq case.

After discussing various verses from Quran, the high court held that “there is sufficient intrinsic material within the scripture itself to support the view that wearing hijab has been only recommendatory, if at all it is”.

Mentioning a specific chapter in Quran (sura) which talks about a veil to cover the bosom, and modesty in dress, the bench said that wearing of hijab is “only directory” (directional) because of absence of prescription of penalty or penance for not wearing hijab and that the linguistic structure of verses supports this view.

“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,” added the bench, citing Ali’s reference that the object was not to restrict the liberty of women, but to protect them from harm and molestation under the conditions then existing in Medina.

The high court bench further underlined: “The Quran shows concern for the cases of ‘molestation of innocent women’ and therefore, it recommended wearing of this and other apparel as a measure of 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 the Islamic faith.”

It also said that wearing of hijab may not be religion-specific, as explained by Sara Slininger from Centralia, Illinois in her research paper “Veiled women: Hijab, religion and cultural Practice”.

Slininger wrote that Islam was not the first culture to practice veiling their women and that veiling was already prevalent in societies like the Byzantines, Sassanids, and other cultures in Near and Middle East as a sign of a women’s social status.

“Regard being had to the kind of life conditions then obtaining in the region concerned, wearing hijab was recommended as a measure of social security for women and to facilitate their safe access to public domain. At the most the practice of wearing this apparel may have something to do with culture but certainly not with religion,” held the high court.

It added that the there is no other verses in the translation from which it could be inferred that hijab is mandatory in nature.

“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,” asserted the high court.

Distinction from previous high court rulings

The issue of the dress code prescribed by CBSE for All India Pre-Medical Test (AIPMT) came for consideration before the Kerala high court in Amnah Bint Basheer Vs CBSE (2016).

A single-judge bench of justice A Muhamed Mustaque cited Quranic injunctions and the Hadiths to hold that “covering the head and wearing a long sleeve dress by women have been treated as an essential part of the Islamic religion” and therefore, such religious attire should be protected under Article 25.

Distinguishing from this judgment, the full bench of the Karnataka high court said that not only was the Kerala high court not dealing with a case of school uniform as part of curricula, it simply resorted to a feasible alternative by directing personal examination of the candidates with the presence of one lady examiner.

“This reasonable exception cannot be stretched too wide to swallow the rule itself. That feasibility evaporates when one comes to regular adherence to school uniform on daily basis,” said the bench.

It also pointed out that the single judge had himself stated in the order that there is a possibility of having different views or opinions for the believers of the Islam based on Ijithihad (independent reasoning) while the Karnataka high court’s views are now drawn from the opinions of Abdullah Yusuf Ali’s works that are recognised by the apex court as being authoritative in the triple talaq case.

The Kerala high court, in Fathema Thasneem Vs State of Kerala (2018), ruled that an individual’s interest must give way to dominant interest when the two rights collide, when two girls sought to attend classes in a Christian school wearing the headscarf as well as full sleeved shirts, which were against the dress code of the school.

The Karnataka high court noted that this was a ruling related to management of a school run by a religious minority (Christians) who had protection under Articles 29 and 30 of the Constitution and it would not guide the present adjudication.

In Fathema Hussain Syed Vs Bharat Education Society (2002), the Bombay high court turned down a girl student’s plea for wearing a head scarf in a private school in violation of the dress code, holding that it is not an obligatory overt act enjoined by Muslim religion that a girl studying in the all-girls section must wear head-covering.

The Karnataka HC held that this decision is not relevant for the present dispute, and warned the petitioners that any reliance on the Bombay HC judgment would prove to be a death knell to instances where respondent educational institutions happen to be all-girl schools or colleges.

That a practice claimed to be essential to the religion has been carried on since time immemorial... does not lend to it the constitutional protection...

HC BENCH