Places further fetters on women’s choice to dress

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In a significant but controversial ruling, a three-judge Karnataka High Court bench upheld that wearing of a hijab is not an essential religious practice in Islam, in order to warrant and justify its protection under Article 25 of the Constitution.

While deciding a batch of petitions, the court broadly framed the following questions for consideration: 1) Whether wearing a hijab is a part of ‘essential religious practice' in Islamic faith protected under Article 25 of the Constitution? 2) Whether prescription of school uniform is not legally permissible, being violative of petitioners' fundamental rights guaranteed under Articles 19(1)(a) (freedom of expression) and 21 (privacy) of the Constitution? 3) Whether the Government Order dated February 5, apart from being incompetent, was issued without application of mind and was it arbitrary and, therefore, violated Articles 14 and 15 of the Constitution?

Answering these questions in the negative, the high court went on to hold that wearing a hijab is not an essential religious practice and thus the contention of violation of Article 25 of the Constitution of India cannot sustain.

In order to reach such a conclusion, the court primarily analysed the verses of the Quran, well known treatises on the Quran, and examined judgments of various high courts and the Supreme Court throwing light upon what may constitute an ERP. After an in-depth analysis (the judgment runs into over 120 pages) the court observed that the Quran showed concern for cases of ‘molestation of innocent women', and therefore it recommended wearing of the hijab and other apparel as a measure of social security. However, the court observed, the practice was not predominantly religious, much less an essential religious practice.

Further dilution of rights

The court then went on to observe that since it was only a recommendation in the Quran, it could not be metamorphosised into mandatory by the Haadi (second source of Islamic Law - sayings/musings of the Prophet Mohammed), which is treated as supplementary to the scripture. The court also took help from the Supreme Court ruling in Shah Bano's case, where it observed that the apex court on the same premise had proscribed the 1400-year-old pernicious practice of triple talaq in Islam.

However an underlying principle in the Islamic faith is also the absence of compulsion in religion as aptly stated in Abdullah Yusuf Ali's The Holy Quran: Text, Translation and Commentary: ‘…compulsion is incompatible with religion because religion depends upon faith and will, and these would be meaningless if induced by force'. So, even if one wishes to ignore the religious aspect in the present discussion, what cannot be ignored is that an inadvertent consequence of such a decision will be the further dilution of women's right to choose.

Ripples will be felt

Furthermore, though the discussion in the judgment was limited to a school in Udupi, this judgment is bound to have far reaching ramifications far beyond Karnataka. The ripples will be felt in far off states, especially those having a large Muslim population, like Maharashtra. It probably would not end at that and there is a strong likelihood that it will slowly but quietly start to creep in other institutions and even private work places.

Another aspect that requires notice is the larger picture painted by such a judgment - the creation of a bar upon the right to education of girls as, by prescribing certain uniform that comes in the way of a student's religious beliefs would essentially create a very palpable obstacle towards exercising her fundamental right to education.

Going a step further and beyond the immediate question that this judgment seeks to address is the fact that in a country where what a woman wears is already under constant scrutiny, this judgment will put further fetters on the choice of a woman to dress. The ruling has attracted substantial attention globally owing to the political scene in India and now all eyes are on the apex court.

The authors are senior advocates