‘Hijab is a duty that courts can’t define’

On the fifth day of the hearing against the ban on Muslim girls wearing Hijab in schools as imposed by the Karnataka High Court (HC), the Supreme Court (SC) was told on Wednesday that wearing of Hijab was a 'farz' (duty) as per religious edicts and the courts were not equipped to determine its essentiality.

Senior advocate Rajeev Dhavan, representing some petitioners, said the HC's conclusion was puzzling since it said Hijab was not mandatory due to the absence of a prescription of penalties for not wearing it.

He told a two-judge bench of Justices Hemant Gupta and Sudhanshu Dhulia that once it is shown that wearing a Hijab is a bona fide practice, it has to be permitted. He cited the apex court's decision in this regard in the Bijoe Emmanuel case.

If the courts were not equipped to decide the matter, which forum will decide any dispute, the Bench asked.

Dhavan said, “What was the dispute? Whether Hijab was an essential practice? It was worn all over the country and as long as it is bona fide and prevalent, the practice must be allowed and there was no need to refer to the religious text.”

He cited the tenets of the faith that if something has been allowed and if it was bona vide, there is no need to go back to the text. Also, if the belief of a community is proved, then a judge was bound to accept that belief, instead of sitting on a judgement on that belief, he asserted.

Citing the Kerala HC's decision, he added that the analysis of the Quranic injunctions and the Hadiths would show that it was a 'farz' to cover the head. The bench queried, what was the basis of saying it was a 'farz'?

Asked if he wants the court to follow the Kerala HC, Dhavan said, “If one were to interpret the text, then the answer to it is 'farz', and if it is a ritual that is prevalent, and is bona fide, your lordship will allow it.”

He added that Hijab is permitted across the board in public places and so what was the basis to say it can't be allowed in a classroom and wearing it was opposed to public order? In conclusion, Dhvan said there was no foundation in the Karnataka government order against Hijab as it violates Article 14 and 15 and as such is not permissible in the Constitution.